11 AAC 110.260. Final consistency determination

(a) A final consistency determination rendered under AS 46.39.010 (a) or AS 46.40.096 (d) must

(1) contain a description of the proposed project;

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

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

(4) contain a statement that the final consistency determination is a final administrative order and decision under the program.

(b) In addition to meeting the requirements in (a) of this section, a final consistency determination that

(1) concurs with the applicant's consistency certification must include an explanation of how the proposed project is consistent with the applicable enforceable policies of the program; or

(2) objects to the applicant's consistency certification must include an identification of the specific enforceable policies and the reasons why the coordinating agency has found the proposed project inconsistent with those enforceable policies.

(c) In addition to meeting the requirements in (a) and (b) of this section, the final consistency determination must include any change made by the coordinating agency between issuance of the proposed consistency determination and issuance of the final consistency determination, including

(1) the incorporation, within the project description, of any

(A) alternative measures that are

(i) proposed in the proposed consistency determination under 11 AAC 110.255(h) (2); and

(ii adopted by the applicant; and

(B) modification by the applicant of the project to achieve consistency with the enforceable policies of the program; and

(2) any minor editorial or technical corrections.

(d) The coordinating agency shall provide the final consistency determination to

(1) the applicant;

(2) each resource agency;

(3) each commenting review participant;

(4) each agency that commented on the project; and

(5) each person who submitted timely program comments under 11 AAC 110.510(a) and, if applicable, 11 AAC 110.510(b) .

(e) If an applicant, after receiving a final consistency determination, fails to implement an alternative measure identified by the applicant under (c)(1)(A) of this section, or if the applicant undertakes a project modification not incorporated into the final consistency determination and not reviewed under 11 AAC 110.800 - 11 AAC 110.830, a resource agency may, in exercise of the agency's enforcement discretion, take action according to the resource agency's statutory and regulatory authorities.

(f) If a requirement set out in a final consistency determination for a project is more or less restrictive than a similar requirement in a resource agency authorization for that project, the applicant shall comply with the more restrictive requirement.

(g) A final consistency determination is a final administrative order and decision under the program.

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

Authority: AS 46.39.010

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