11 AAC 110.445. Final consistency response to a federal consistency certification.

(a) A final consistency response rendered by the office under AS 46.39.010 (a) and AS 46.40.096 (d) must

(1) contain a description of the proposed activity;

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

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

(4) be issued within the time set in 15 C.F.R. 930.60(a)(3) and 930.62.

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

(1) concurs with the applicant's federal 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 federal consistency certification must set out that objection in the form and manner required by 15 C.F.R. 930.63.

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

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

(A) alternative measures that are

(i) proposed under 11 AAC 110.440(d) in the proposed consistency response; 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) Within 50 days after receipt of the applicant's federal consistency certification, except as the review schedule is modified under 11 AAC 110.430(b) , the office shall provide the final consistency response to

(1) the applicant;

(2) the federal agency as required under 15 C.F.R. 930.62(a) and 15 C.F.R. 930.63(a);

(3) the director of the Office of Ocean and Coastal Resource Management, as required under 15 C.F.R. 930.63(a), if the final consistency response objects to the applicant's federal consistency certification;

(4) each resource agency;

(5) each commenting review participant;

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

(7) each person who submitted timely program comments under 11 AAC 110.500(a) and, if applicable, 11 AAC 110.500(b) .

(e) If an applicant, after receiving a final consistency response, fails to implement an alternative measure adopted under (c) of this section, or if the applicant undertakes a project modification not incorporated into the final consistency response 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 response is more or less restrictive than a similar requirement in a resource agency authorization, the applicant shall comply with the more restrictive requirement.

(g) A final consistency response 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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