La. Admin. Code tit. 43 § I-723

Current through Register Vol. 50, No. 5, May 20, 2024

Section I-723 - Rules and Procedures for Coastal Use Permits

A. General

1. Coastal Use Permits. This regulation provides the requirements and procedures for the issuance, denial, renewal, modification, suspension, and revocation of coastal use permits and general coastal use permits.

2. Permit Requirement. No use of state or local concern shall be commenced or carried out in the coastal zone without a valid coastal use permit or in-lieu permit unless the activity is exempted from permitting by the provisions of the SLCRMA or by Subsection B of this Section. The following shall be considered as uses of state or local concern subject to the requirement of this Paragraph:

a. dredging or filling and discharges of dredged or fill material;

b. levee siting, construction, operation, and maintenance;

c. hurricane and flood protection facilities, including the siting, construction, operation, and maintenance of such facilities;

d. urban developments, including the siting, construction or operation of residential, commercial, industrial, and governmental structures and transportation facilities;

e. energy development activities, including any siting, construction, or operation of generating, processing and transmission facilities, pipeline facilities, and exploration for and production of oil, natural gas, and geothermal energy;

f. mining activities, including surface, subsurface, and underground mining, sand or gravel mining, and shell dredging;

g. wastewater discharge, including point and nonpoint sources;

h. surface water control or consumption, including marsh management projects;

i. shoreline modification projects and harbor structures;

j. waste disposal activities;

k. recreational developments, including siting, construction and operation of public and private recreational facilities and marinas;

l. industrial development, including siting, construction, or operation of such facilities;

m. any other activities or projects that would require a permit or other form of consent or authorization from the U.S. Army Corps of Engineers, the Environmental Protection Agency or the Louisiana Department of Natural Resources (see page 83 Item 13 of the Louisiana Coastal Resources Program Final Environmental Impact Statement);

n. activities which impact barrier islands, salt domes, cheniers, and beaches;

o. drainage projects;

3. In-Lieu Permits. Coastal use permits shall not be required for the location, drilling, exploration and production of oil, gas, sulphur and other minerals subject to regulation by the Office of Conservation of the Department of Natural Resources as of January 1, 1979. The parameters and procedures of the in-lieu permit process are as provided for under existing Memorandum of Understanding between the Coastal Management Section and the Office of Conservation and the rules and procedures of the Office of Conservation.

B. Activities Not Requiring Permits

1. General

a. The following activities normally do not have direct and significant impacts on coastal waters; hence, a coastal use permit is not required, except as set forth in the following clauses:

i. agricultural, forestry, and aquaculture activities on lands consistently used in the past for such activities;

ii. hunting, fishing, trapping, and the preservation of scenic historic, and scientific areas and wildlife preserves;

iii. normal maintenance or repair of existing structures including emergency repairs of damage caused by accident, fire, or the elements;

iv. construction of a residence or camp;

v. construction and modification of navigational aids such as channel markers and anchor buoys;

vi. activities which do not have a direct and significant impact on coastal waters.

b. Uses and activities within the special area established by R.S. 49:214.29(c)which have been permitted by the Offshore Terminal Authority in keeping with its environmental protection plan shall not require a coastal use permit.

2. Activities on Lands 5 Feet or More above Sea Level or within Fastlands

a. Activities occurring wholly on lands 5 feet or more above sea level or within fastlands do not normally have direct and significant impacts on coastal waters. Consequently, a coastal use permit for such uses generally need not be applied for.

b. However, if a proposed activity exempted from permitting in Subparagraph a, above, will result in discharges into coastal waters, or significantly change existing water flow into coastal waters, then the person proposing the activity shall notify the secretary and provide such information regarding the proposed activity as may be required by the secretary in deciding whether the activity is a use subject to a coastal permit.

c. Should it be found that a particular activity exempted by Subparagraph a, above, may have a direct and significant impact on coastal waters, the department may conduct such investigation as may be appropriate to ascertain the facts and may require the persons conducting such activity to provide appropriate factual information regarding the activity so that a determination may be made as to whether the activity is a use subject to a permit.

d. The secretary shall determine whether a coastal use permit is required for a particular activity. A coastal use permit will be required only for those elements of the activity which have direct and significant impacts on coastal waters.

e. The exemption described in this Section shall not refer to activities occurring on cheniers, salt domes, barrier islands, beaches, and similar isolated, raised land forms in the coastal zone. It does refer to natural ridges and levees.

3. Emergency Uses

a. Coastal use permits are not required in advance for conducting uses necessary to correct emergency situations.

i. Emergency situations are those brought about by natural or man-made causes, such as storms, floods, fires, wrecks, explosions, spills, which would result in hazard to life, loss of property, or damage to the environment if immediate corrective action were not taken.

ii. This exemption applies only to those corrective actions which are immediately required for the protection of lives, property, or the environment necessitated by the emergency situation.

b. Prior to undertaking such emergency uses, or as soon as possible thereafter, the person carrying out the use shall notify the secretary and the local government, if the use is conducted in a parish with an approved local program, and give a brief description of the emergency use and the necessity for carrying it out without a coastal use permit.

c. As soon as possible after the emergency situation arises, any person who has conducted an emergency use shall report on the emergency use to the approved local program or to the administrator. A determination shall be made as to whether the emergency use will continue to have direct and significant impacts on coastal waters. If so, the user shall apply for an after-the-fact permit. The removal of any structure or works occasioned by the emergency and the restoration of the condition existing prior to the emergency use may be ordered if the permit is denied in whole or in part.

4. Normal Maintenance and Repair

a. Normal repairs and the rehabilitation, replacement, or maintenance of existing structures shall not require a coastal use permit provided that:

i. the structure or work was lawfully in existence, currently serviceable, and in active use during the year preceding the repair, replacement or maintenance; and

ii. the repair or maintenance does not result in an encroachment into a wetland area greater than that of the previous structure or work; and

iii. the repair or maintenance does not involve dredge or fill activities; and

iv. the repair or maintenance does not result in a structure or facility that is significantly different in magnitude or function from the original.

b. This exemption shall not apply to the repair or maintenance of any structure or facility built or maintained in violation of the coastal management program.

c. Coastal use permits will normally authorize periodic maintenance including maintenance dredging. All maintenance activities authorized by coastal use permits shall be conducted pursuant to the conditions established for that permit. Where maintenance is performed which is not described in an applicable coastal use permit, it shall conform to this Section.

5. Construction of a Residence or Camp

a. The construction of a residence or a camp shall not require a coastal use permit provided that:

i. the terms shall refer solely to structures used for noncommercial and nonprofit purposes and which are commonly referred to as "single family" and not multiple family dwellings;

ii. the terms shall refer solely to the construction of one such structure by or for the owner of the land for the owner's use and not to practices involving the building of more than one such structure as in subdividing, tract development, speculative building, or recreational community development.

b. The exemption shall apply only to the construction of the structure and appurtenances such as septic fields, outbuildings, walk-ways, gazebos, small wharves, landings, boathouses, private driveways, and similar works, but not to any bulkheading or any dredging or filling activity except for small amounts of fill necessary for the structure itself and for the installation and maintenance of septic or sewerage facilities.

6. Navigational Aids

a. The construction and modification of navigational aids shall not require a coastal use permit.

b. The term shall include channel markers, buoys, marker piles, dolphins, piling, pile clusters, etc.; provided that the exemption does not apply to associated dredge or fill uses or the construction of mooring structures, advertising signs, platforms, or similar structures associated with such facilities. All navigational aids constructed pursuant to this section shall conform to United State Coast Guard standards and requirements.

7. Agricultural, Forestry and Aquacultural Activities

a. Agricultural, forestry and aquacultural activities on lands consistently used in the past for such activities shall not require a coastal use permit provided that:

i. the activity is located on lands or in waters which have been used on an ongoing basis for such purposes, consistent with normal practices, prior to the effective date of SLCRMA (Act 361 of 1978);

ii. the activity does not require a permit from the U.S. Army Corps of Engineers and meets federal requirements for such exempted activities; and

iii. the activity is not intended to, nor will it result in, changing the agricultural, forestry, or aquacultural use for which the land has been consistently used for in the past to another use.

b. The exemption includes but is not limited to normal agricultural, forestry, and aquacultural activities such as:

i. plowing;

ii. seeding;

iii. grazing;

iv. cultivating;

v. insect control;

vi. fence building and repair;

vii. thinning;

viii. harvesting for the production of food, fiber and forest products;

ix. maintenance and drainage of existing farm, stock, or fish ponds;

x. digging of small drainage ditches; or

xi. maintenance of existing drainage ditches and farm or forest roads carried out in accordance with good management practices.

8. Blanket Exemption. No use or activity shall require a coastal use permit if:

a. the use or activity was lawfully commenced or established prior to the implementation of the coastal use permit process;

b. the secretary determines that it does not have a direct or significant impact on coastal waters; or

c. the secretary determines one is not required pursuant to §723. G of these rules.

C. Permit Application, Issuance, and Denial

1. General Requirements

a. Any applicant for a coastal use permit shall file a complete application with the state, or at his option, in areas subject to an approved local coastal management program, with the local government. The department will provide the application forms and instructions, including example plats and interpretive assistance, to any interested party. The staffs of the office of coastal management and approved local programs shall be available for consultation prior to submission of an application and such consultation is strongly recommended. Application forms may be periodically revised to obtain all information necessary for review of the proposed project.

b. Separate applications shall be made for unrelated projects or projects involving noncontiguous parcels of property. Joint applications may be made in cases of related construction involving contiguous parcels of property.

c. Applicants for coastal use permits for uses of state concern shall include with their application filed with the state a certification that a copy of the application was forwarded by certified mail or hand delivered to the affected local parish(es) with an approved coastal management program.

d. Applicants for coastal use permits for uses of state concern, who elect to submit their application to the affected local parish(es) with an approved local coastal management program, shall include with their application a certification that a copy of the application was forwarded by certified mail or hand delivered to the state.

2. Content of Application. The application submitted shall contain the information required on the department provided application form, and such additional information as the secretary determines to be reasonably necessary for proper evaluation of an application.

3. Fee Schedule

a. Effective May 1, 2002, the fee schedule of Coastal Use Permits of state concern will be divided into the two categories of residential uses and nonresidential uses.

b. The following schedule of fees will be charged for the processing and evaluation of Coastal Use Permits of state concern in the residential coastal use category.

i. A non-refundable fee shall accompany each application or request for determination submitted to the Coastal Management Division. The fee shall be $20 for each application and $20 for each request for determination.

ii. In addition to the non-refundable application fee, the following fees will be assessed according to the total volume of material disturbed for each permit issued.

(a). Proposed projects which involve fewer than 125 cubic yards of dredging or fill volume shall not be assessed additional fees.

(b). Proposed projects which involve 125 cubic yards of dredging and/or filling but less than 50,000 cubic yards shall be assessed at the rate of $0.04 per cubic yard.

(c). Proposed projects which involve 50,000 cubic yards or more of dredging and/or filling shall be assessed the maximum volume disturbed fee of $2,000.

c. The following schedule of fees will be charged for the processing and evaluation of Coastal Use Permits of state concern in the non-residential coastal use category.

i. A non-refundable fee shall accompany each application or request for determination submitted to the Coastal Management Division. The fee shall be $100 for each application and $100 for each request for determination.

ii. In addition to the non-refundable application fee, the following fees will be assessed according to the total volume of material disturbed for each permit issued.

(a). Proposed projects which involve more than 0 and fewer than 500 cubic yards of dredging or fill volume shall be assessed a fee of $25.

(b). Proposed projects which involve 501 cubic yards of dredging and/or filling but less than 100,001 cubic yards shall be assessed at the rate of $0.05 per cubic yard.

(c). Proposed projects which involve 100,001 cubic yards or more of dredging and/or filling shall be assessed the maximum volume disturbed fee of $5,000.

d. If the appropriate fees are not included along with the coastal use permit application, the application will be considered incomplete, and returned to the applicant. The application fee and additional fees, if any, should be paid separately.

e. A coastal use permit application which has been returned to the applicant by the Coastal Management Division or withdrawn by the applicant and is subsequently resubmitted shall be subject to an additional processing fee which will consist of an application fee and a permit fee if the application has undergone substantial revisions, pursuant to Subparagraph D.1.a of this Section.

f. Nothing contained in Subparagraphs 3.a-e shall affect the right of local government and parishes with approved programs to assess fees for processing and evaluating coastal use permit applications.

g. In addition to the fees identified at §723. C.3.a, the following fees related to compensatory mitigation shall be charged when appropriate pursuant to §724:

i. compensatory mitigation processing fee (§724. D);

ii. mitigation bank initial evaluation fee, mitigation bank habitat evaluation fee, mitigation bank establishment fee, and mitigation bank periodic review fee (§724. F.3);

iii. advanced mitigation project initial evaluation fee, advanced mitigation project establishment fee, advanced mitigation post-implementation habitat evaluation fee, advanced mitigation periodic review fee (§724. G.5);

iv. compensatory mitigation variance request fee (§724. K.2.h).

4. Processing the Application

a. When an apparently complete application for a permit is received, the permitting body shall immediately assign it a number for identification, acknowledge receipt thereof, and advise the applicant of the number assigned to it.

b. Application processing will begin when an application that is apparently complete is accepted by the permitting body.

c. Within two working days of receipt of an apparently complete application by a local government with an approved program, a copy of the application and all attachments and the local government's decision as to whether the use is one of state or local concern shall be sent to the secretary.

d. Public notice as described in Paragraph 5 below, will be issued within 10 days of receipt of an apparently complete application by the secretary.

e. The permitting body shall evaluate the proposed application pursuant to Paragraph 6 below, to determine the need for a public hearing.

f. The permitting body, pursuant to Paragraph 8 below, shall either send a draft permit to the applicant for acceptance and signature or send notice of denial to the applicant within 30 days of the giving of public notice or within 15 days after the closing of the record of a public hearing, if held, whichever is later.

g. Public notice of permit decisions shall be given pursuant to Subparagraph 5.a below.

5. Public Notice and Consideration of Public Comment

a. Public notice of the receipt of all apparently complete applications for coastal use permits shall be given by posting or causing to be posted notices of application on the department's internet site. The administrator shall distribute copies of the application to all affected governmental bodies.

b. Notice by Publication. A public notice as provided in §728 of all apparently complete applications for coastal use permits will be published by the administrator or by the local government with an approved local coastal management program for uses of local concern. The public notice shall be published by the administrator at least one time in the official journal of the state and, for a use of local concern in a parish with an approved local program, by the local government one or more times in the official journal of the parish in which the activity is to be conducted. Notice shall be considered given upon publication in the official journal.

c. Contents of the notice of an apparently complete application for a coastal use permit should at a minimum contain the following:

i. the name and address of applicant;

ii. a brief description of the activity proposed in the application;

iii. the nature and location of the activity;

iv. the name and address of the administrators, or local governments, if the application is filed with a local government with an approved local coastal management program, representative to whom comments shall be submitted;

v. a statement that comments will be received for 25 days following publication; and

vi. a statement indicating that additional information is on file and may be inspected at any time during normal working hours, with copies available upon payment of a reasonable fee to cover costs of copying, handling, and mailing.

d. Additional Forms of Notice. The administrator, in his discretion, may require the applicant to undertake the following additional forms of public notice:

i. by posting or causing to be posted a copy of the application at the location of the proposed use; and

ii. by publishing notice of the application in media newspaper of general circulation in the parish or parishes in which the use would be located.

e. The permitting body shall consider comments received in response to the public notice in its subsequent actions on the permit application. Comments received will be made a part of the official file on the application. If comments received relate to matters within the special expertise of another governmental body, the permitting body may seek advice of that agency. If necessary, the applicant will be given the opportunity to furnish his proposed resolution or rebuttal to all objections from government agencies and other substantive adverse comments before a final decision is made on the application.

f. The administrator shall maintain a current list of permits issued or denied during the previous month. This list will be posted on the department's internet site in the same manner as notices of apparently complete applications for coastal use permits.

g. Notice by Mail. A copy of the public notice of all apparently complete applications for coastal use permits and the current list of permits issued or denied since the last mailing but no less than monthly will be mailed to each person on the public notice mailing list, pursuant to §728.

h. Notice by Electronic Transmission. A copy of the public notice of all apparently complete applications for coastal use permits and the monthly list of permits issued or denied will be sent to subscribers of the electronic public notice list, pursuant to §728.

i. The department shall maintain the public content of its current permit application files in the SONRIS system, so that those records are available for public inspection.

j. A copy of any public record, including the application, will be sent to any person requesting it upon payment of a reasonable fee to cover costs of copying, handling, and mailing, except that information of a confidential or proprietary nature shall be withheld. In the event that attachments to the application are not readily reproducible, they shall be available for inspection at the permitting office.

6. Public Hearings on Permit Applications

a. A public hearing may be held in connection with the consideration of an application for a new permit and when it is proposed that an existing permit be modified or revoked.

b. Any person may request in writing within the comment period specified in the public notice that a public hearing be held to consider material matters at issue in a permit application. Upon receipt of any such request, the permitting body shall determine whether the issues raised are substantial, and there is a valid public interest to be served by holding a public hearing.

c. Public hearing(s) are appropriate when there is significant public opposition to a proposed use, or there have been requests from legislators or from local governments or other local authorities, or in controversial cases involving significant economic, social, or environmental issues. The secretary or local government with an approved program has the discretion to require hearings in any particular case.

d. If the determination is made to hold a public hearing, the permitting body shall promptly notify the applicant, set a time and place for the hearing, and give public notice.

e. If a request for a public hearing has been received, and the decision is made that no hearing will be held, public notice of the decision shall be given.

7. Additional Information

a. If an application is found to be incomplete or inaccurate after processing has begun or if it is determined that additional information from the applicant is necessary to assess the application adequately, processing will be stopped pending receipt of the necessary changes or information from the applicant and the processing periods provided for in Paragraph 4.d and f will be interrupted. Upon receipt of the required changes or information, a new processing period will begin.

b. If the applicant fails to respond within 30 days to any request or inquiry of the permitting body, the permitting body may advise the applicant that his application will be considered as having been withdrawn unless and until the applicant responds within 15 days of the date of the letter.

8. Decisions on Permits

a. The permitting body will determine whether or not the permit should be issued. Permits shall be issued only for those uses which are consistent with the guidelines, the state program, and affected approved local programs. The secretary shall not consider the use to be consistent with the state program unless the permit includes condition(s) which, pursuant to §724, ensure the mitigation of wetland ecological values which would be lost due to the use. Permit decisions will be made only after a full and fair consideration of all information before the permitting body, and shall represent an appropriate balancing of social, environmental, and economic factors. The permitting body shall prepare a short and clear statement explaining the basis for its decision on all applications. This statement shall include the permitting body's conclusions on the conformity of the proposed use with the guidelines, the state program and approved local programs. The statement shall be dated, signed, and included in the record prior to final action on the application.

b. If the staff of the permitting body recommends issuance of the permit, the permitting body will forward two copies of the proposed permit to the applicant. A letter of transmittal to the applicant shall include the recommendations to the secretary and the anticipated date on which the application shall be presented to him for action. Unless good cause is then presented in support of changes to the permit and the conditions therein, the permit will be presented to the secretary for action in such form.

c. Final action on the permit application is the signature of the issuing official on the permit or the mailing of the letter notifying the applicant of the denial.

9. Conditions of Permit

a. By accepting the permit, the applicant agrees to:

i. carry out or perform the use in accordance with the plans and specifications approved by the permitting body;

ii. comply with any permit conditions imposed by the permitting body;

iii. adjust, alter, or remove any structure or other physical evidence of the permitted use if, in the opinion of the permitting body, it proves to be beyond the scope of the use as approved or is abandoned;

iv. provide, if required by the permitting body, an acceptable surety bond in an appropriate amount to ensure adjustment, alteration, or removal should the permitting body determine it necessary;

v. hold and save the state of Louisiana, the local government, the department, and their officers and employees harmless from any damage to persons or property which might result from the work, activity, or structure permitted;

vi. certify that any permitted construction has been completed in an acceptable and satisfactory manner and in accordance with the plans and specifications approved by the permitting body. The permitting body may, when appropriate, require such certification be given by a registered professional engineer.

b. The permitting body shall place such other conditions on the permit as are appropriate to ensure compliance with the coastal management program.

c. Permitted uses subject to this Part shall be of two types, continuing and noncontinuing uses, which are defined below as follows.

i. Continuing uses are activities which by nature are carried out on an uninterrupted basis, examples include shell dredging and surface mining activities, projects involving maintenance dredging of existing waterways, and maintenance and repair of existing levees.

ii. Noncontinuing uses are activities which by nature are done on a one-time basis, examples include dredging access canals for oil and gas well drilling, implementing an approved land use alteration plan, and constructing new port or marina facilities.

d. The term of issuance of permits shall be as follows.

i. The term to initiate a coastal use permit shall be two years from the date of issuance, and the term to complete the use shall be five years from the date of issuance.

D. Modification, Suspension or Revocation of Permits

1. Modifications

a. The terms and conditions of a permit may be modified to allow changes in the permitted use, in the plans and specifications for that use, in the methods by which the use is being implemented, or to assure that the permitted use will be in conformity with the coastal management program. Changes which would significantly increase the impacts of a permitted activity shall be processed as new applications for permits pursuant to Subsection C, not as a modification.

b. A permit may be modified upon request of the permittee:

i. if mutual agreement can be reached on a modification, written notice of the modification will be given to the permittee;

ii. if mutual agreement cannot be reached, a permittee's request for a modification shall be considered denied.

2. Suspensions

a. The permitting body may suspend a permit upon a finding that:

i. the permittee has failed or refuses to comply with the terms and conditions of the permit or any modifications thereof; or

ii. the permittee has submitted false or incomplete information in his application or otherwise; or

iii. the permittee has failed or refused to comply with any lawful order or request of the permitting body or the secretary.

b. The permitting body shall notify the permittee in writing that the permit has been suspended and the reasons therefor and order the permittee to cease immediately all previously authorized activities. The notice shall also advise the permittee that he will be given, upon request made within 10 days of receipt of the notice, an opportunity to respond to the reasons given for the suspension.

c. After consideration of the permittee's response, or, if none, within 30 days after issuance of the notice, the permitting body shall take action to reinstate, modify or revoke the permit and shall notify the permittee of the action taken.

3. Revocation. If, after compliance with the suspension procedures in Subsection B, above, the permitting body determines that revocation or modification of the permit is warranted, written notice of the revocation or modification shall be given to the permittee.

4. Enforcement. If the permittee fails to comply with a cease and desist order or the suspension or revocation of a permit, the permitting body shall seek appropriate civil and criminal relief as provided by §214.36 of the SLCRMA.

5. Extension

a. The term to initiate a coastal use permit or the term to complete the use of a coastal use permit may be extended, notwithstanding the provision of Subparagraph j below, as follows:

i. The term to initiate a coastal use permit may be extended for an additional 2 years beyond the term set forth in Subsection C.9.d.

ii. The term to complete the use may be extended for up to a total of an additional 3 years beyond the term for completion of use set forth in Subsection C.9.d.

iii. A grant of an extension request for the term to initiate a coastal use permit does not automatically extend the term to complete use of a coastal use permit. Requests to extend the term to initiate a coastal use permit and complete use of the same permit may be submitted separately or together in accordance with Subparagraph f. Each request shall include the appropriate fee consistent with schedule of fees set forth in Subparagraphs f-g. Each request shall be considered separately consistent with Subparagraph a.iv.

iv. The secretary may, in his discretion, upon a showing of good cause and upon receipt of a complete request for an extension, grant a permittee an extension up to 30 days beyond the last day of the term to initiate work on a use pursuant to a permit, or 30 days beyond the last day of the term to complete the permitted use without public notice of the request, a public comment period, or further formality, except that notice required in Subparagraph i below, of the secretary's decision to grant or deny the extension shall be made.

b. The secretary shall review extension requests subject to this Part on a case-by-case basis. The secretary shall determine, based upon the merits of the request and upon the compliance of the permitted activity with the regulations and policies existing at the time of the request, whether extension may be considered.

c. If the secretary determines that extension may be considered, the Permits, Mitigation and Support Division shall cause to be issued for public comment, for a period of 10 days, a notice containing a brief summary of the original permit in accordance with Subparagraph i below. The secretary shall consider public comments received during this period prior to the final decision on whether to allow permit extension. The sole reason for not allowing extension based upon public comment shall be that there has been a change in the conditions of the area affected by the permit since the permit was originally issued.

d. If the secretary determines that a permit should not be extended, the permittee shall be notified and, provided that the permittee desires a new permit, the use shall be subject to processing as a new permit application pursuant to the procedures set forth in Subsection C. A decision of the secretary not to allow extension of a permit shall not be subject to appeal. A decision of the secretary to allow extension shall be subject to appeal only on the grounds that the proposed activity should be treated as a new application pursuant to Subsection C rather than be considered for extension.

e. All coastal use permits in effect on the date these rules are adopted are eligible for extension provided that all requirements in Subparagraph f below are met.

f. Extension requests shall be in the form of a written letter which shall refer to the original coastal use permit application number and specifically state that a permit extension is desired. A nonrefundable extension request fee in the amount of $80 shall be included with such a request, and the request must be received by the Permits, Mitigation and Support Division no sooner than 180 days and no later than 60 days prior to the expiration of the permit in question. Requests received later than 60 days prior to the expiration date of the permit shall be eligible for consideration for extension, however a permittee who fails to make a timely request for an extension shall not engage in any activity requiring a coastal use permit past the original permit expiration date until an extension of the lapsed permit or a new permit is granted.

g. If the appropriate fees are not included along with the request for an extension to initiate a coastal use permit and/or to complete the use, the request will be considered incomplete, and returned to the permittee.

h. Extension requests involving modifications to a permitted activity which would result in greater impacts to the environment than previously permitted will be considered as new applications rather than as extension requests. Extension requests involving modifications to a permitted activity which would result in identical or lesser impacts to the environment than previously permitted may be considered as extension requests, and must, in addition to the requirements in Subparagraph f above, contain adequate information (such as drawings, maps, etc.) to support and explain the proposed modifications.

i. The Permits, Mitigation and Support Division shall issue notice of the extension request to all members of the joint public notice mailing list, and shall publish notice that the extension request has been granted or denied in the bi-weekly status report that is published in the state journal as well as mailed to joint public notice mailing recipients.

j. The secretary may issue administrative orders that modify, suspend, or extend the terms of all coastal use permits, or the secretary may order or delegate the authority to order modification, suspension, or extension of an individual permit when, in either case, the permits are in an area where an executive order or proclamation is issued declaring an emergency, and the need for the modification, suspension, or extension is related to the emergency.

E. General Permits

1. General

a. The administrator may, after compliance with the procedures set forth in Paragraphs C.4 and 5, issue general permits for certain clearly described categories of uses requiring coastal use permits. After a general permit has been issued, individual uses falling within those categories will not require full individual permit processing unless the administrator determines, on a case-by-cases basis, that the public interest requires full review.

b. General permits may be issued only for those uses that are substantially similar in nature, that cause only minimal adverse impacts when performed separately, that will have only minimal adverse cumulative impacts and that otherwise do not impair the fulfillment of the objectives and policies of the coastal management program.

c. When an individual use is authorized under a general permit, the authorization shall include condition(s) which, pursuant to §724, ensure the mitigation of wetland ecological values which would be lost due to the individual use.

d. In addition to the fees identified at §723. C.3.a, any person seeking authorization under a general permit shall be charged a compensatory mitigation processing fee, if applicable, pursuant to §724. D.

2. Reporting

a. Each person desiring to commence work on a use subject to a general permit must give notice to the secretary and receive written authorization prior to commencing work. Such authorization shall be issued within 30 days of receipt of the notice.

b. Such notice shall include:

i. the name and address of the person conducting the use;

ii. such descriptive material, maps, and plans as may be required by the secretary for that general permit.

3. Conditions of General Permits

a. The secretary shall prescribe such conditions for each general permit as may be appropriate.

b. A general permit may be revoked if the secretary determines that such revocation is in the public interest and consistent with the coastal management program.

4. Local General Permits. A local government with an approved local program may issue general permits for uses of local concern under its jurisdiction pursuant to the above procedures. Such general permits shall be subject to approval by the secretary.

F. Determinations as to Whether Uses Are of State Concern or Local Concern

1. Filing of Applications with a Local Government with an Approved Local Coastal Program

a. The local government shall make the initial determination as to whether the use is one of state concern or local concern on all applications filed with the local government. This determination shall be based on the criteria set forth in Paragraph 3 below.

b. The determination and a brief explanation of the rationale behind the determination shall be forwarded to the secretary within two working days of receipt of the apparently complete application, pursuant to Subparagraph C.4.d.

c. The secretary shall review the decision and rationale and shall let it stand or reverse it. If the secretary reverses the local decision, notice, including a brief explanation of the rationale for the reversal shall be sent to the local government within two working days of receipt of the application from the local government.

d. The appropriate permitting body for the use, as determined by the secretary, shall thereafter be responsible for the permit review process.

2. Filing of Application with the Secretary. Within two working days of the filing of an apparently complete application with the secretary, the secretary shall make a determination as to whether the use is one of state concern or local concern based on the criteria set forth in Paragraph 3 below. Notice shall be given to affected local programs of the determination whether the use is a use of state or local concern. The secretary shall give full consideration to local program comments or objections to any such determination in making future determinations.

3. Criteria for Determination

a. The following factors shall be used in making a determination as to whether a use is of state or local concern:

i. the specific terms of the uses as classified in the Act;

ii. the relationship of a proposed use to a particular use classified in the Act;

iii. if a use is not predominately classified as either state or local by the Act or the use overlaps the two classifications, it shall be of local concern unless it:

(a). is being carried out with state or federal funds;

(b). involves the use of or has significant impacts on state or federal lands, water bottoms, or works;

(c). is mineral or energy development, production or transportation related;

(d). involves the use of, or has significant impacts, on barrier islands or beaches or any other shoreline which forms part of the baseline for Louisiana's offshore jurisdiction;

(e). will result in major changes in the quantity or quality of water flow and circulation or in salinity or sediment transport regimes; or

(f). has significant interparish or interstate impacts.

b. For purposes of this Paragraph, the term state shall mean the state of Louisiana, its agencies, and political subdivisions; but not local governments, their agencies and political subdivisions.

G. Determination as to Whether a Coastal Use Permit Is Required

1. Request by Applicant

a. Any person who proposes to conduct an activity may submit a request in writing to the secretary for a formal finding as to whether the proposed activity is a use of state or local concern within the coastal zone subject to the coastal use permitting program. The person making the request shall submit with the request a complete application for a coastal use permit and shall provide such additional information requested by the secretary as may be appropriate.

b. The requesting party must set forth sufficient facts to support a finding that the proposed activity either:

i. is exempt from coastal use permitting; or

ii. does not have a direct and significant impact on coastal waters; or

iii. is outside the coastal zone boundary.

c. Within 30 days of receipt of the request and the complete application, the requestor shall be sent notice of the decision on the request and public notice of the decision shall be given.

2. Finding without Request

a. In reviewing a permit application for which no request has been submitted, the secretary may find after full consideration of the application, likely impacts of the proposed use, comments received, and applicable rules, regulations and guidelines, that a coastal use permit is not required. If he finds that no permit is required, the secretary shall notify the applicant and give public notice.

b. A local government with an approved program may request that the secretary review an application for a use of local concern and make a determination as to whether a coastal use permit is required, pursuant to the procedures provided for in Paragraph 2.a above. The secretary shall notify the local government of his decision.

3. Decisions

a. Only the secretary may determine that a coastal use permit is not required. A permit shall not be required if the proposed use or activity will not occur within the boundary of the coastal zone, does not have a direct and significant impact on coastal waters, or is exempt from permitting by Subsection C of these rules or by §214. 31(B) or (C), §214. 32(A) or §214.34 of the SLCRMA.

b. The notice sent to the requestor or applicant shall include a short and plain statement of the basis for the decision. Public notice of the decision shall be given pursuant to Subparagraph C.5.f of these rules.

4. Actions after Decision

a. If the determination is that a coastal use permit is required, processing of the application may be commenced or continued pursuant to Subsection C of these rules.

b. If the determination is that a coastal use permit is not required, the requestor or the applicant may proceed to carry out the activity. Provided that the secretary shall not be stopped from subsequently requiring a permit or issuing cease and desist orders if it is found that the activity as implemented is significantly different from that shown on the request or application, does in fact have a direct or significant impact on coastal waters, or otherwise requires a coastal use permit. Other civil or criminal sanctions shall not be available in the absence of fraud, ill practices, deliberate misrepresentation, or failure to comply with any cease and desist or other lawful order of the secretary.

H. Beneficial Use of Dredged Material

1. Requirement for Beneficial Use

a.

i. An application for a coastal use permit or a general permit authorization for an individual activity that involves 25,000 cubic yards or more of dredging shall include a BUDM plan. The application is incomplete until a BUDM plan is submitted. The permit/authorization shall be conditioned upon compliance with the BUDM plan approved by the secretary.

ii. Beneficial use is required only when the primary purpose of the proposed dredging is to facilitate the movement or mooring of vessels.

b. The proposed BUDM plan shall set forth a plan for the beneficial use of dredged material, in accordance with the provisions of this Section. The applicant may meet the requirements of this Section through the following options or a combination thereof:

i. implementing a project for the beneficial use of the dredged material;

ii. providing for beneficial use of the dredged material on an existing coastal restoration project;

iii. conducting an alternative dredging activity whereby an equivalent volume of material is dredged at another location and put to a beneficial use; and/or

iv. making a contribution to the Coastal Resources Trust Fund.

c. The secretary may disallow conducting an alternative dredging activity or making a contribution to the Coastal Resources Trust Fund as options to meet the requirements of this Section if he finds that such activity or contribution would not replace, substitute, enhance, or protect ecological values sufficiently to offset failure to use the dredged material.

2. Exceptions

a. A BUDM plan is unnecessary under the following circumstances:

i. To the extent that dredged material will be replaced at the conclusion of the proposed activity, or in the case of a continuing activity, within a reasonable time after initiation of the proposed activity, as determined by the secretary;

ii. To the extent that the proposed activity is excavation of material for construction of a coastal protection project included within the master plan or associated annual plan(s); or

iii. As specifically approved by the secretary in writing, under exceptional circumstances and if the secretary expressly finds that beneficial use of dredged material is unnecessary to protect, create, or enhance wetlands.

b. If the applicant asserts an exception pursuant to this Paragraph 2, the applicant shall submit a statement with the application setting forth the exception and the basis for its application to the proposed activity. If the exception is pursuant to Paragraph 2.a.iii, the written approval of the secretary shall be attached.

3. General Provisions

a. Upon grant of a coastal use permit, beneficial use of dredged material in accordance with the BUDM plan approved by the secretary shall be deemed in compliance with §707. B of this Chapter. However, all other requirements of this Chapter, including the guidelines set forth in §§701-719, remain applicable.

b. The BUDM plan shall be treated as part of the coastal use permit application in all respects and shall be subject to all requirements of the application process, including distribution, public notice of the application, public comment, consideration of public comment, public hearings, provision of additional information regarding incomplete or inaccurate applications, review, permit decision, and public notice of a permit decision.

c. In reviewing the BUDM plan, the secretary shall consider:

i. The recommendations and comments of any state or federal agencies that demonstrated an interest, during application processing, in participating in the approval or disapproval of the BUDM plan. The secretary shall also consider the recommendations and comments of the affected parish if the parish has an approved local program and if the parish demonstrated, during application processing, an interest in participating in approval or disapproval of the BUDM plan; and

ii. The manner and extent to which a project for dredged material is proposed to be used, a proposed use for material dredged pursuant to an alternative dredging activity, and/or use of a proposed in-lieu contribution will protect, create, or enhance wetlands, including by having an anticipated positive impact on the ecological value of the Louisiana Coastal Zone and/or the hydrologic basin. The proposed project or use shall be designed to provide for the long-term viability of the coastal ecosystem.

d. The applicant shall obtain and provide to the secretary together with the BUDM plan all permits or permissions required by any other state, federal, or local agency under any other law, regulation, or ordinance for any project or use proposed in the plan. In particular, if the project or use involves placement of material on state water bottoms, the applicant shall obtain or submit a copy of an approved reclamation permit from the State Land Office in accordance with their regulations and requirements. The secretary may accept the BUDM plan and grant the permit subject to issuance of permits or permissions by other permitting bodies within a time period determined by the secretary.

e. The applicant shall attach to the BUDM plan a written affirmation that the applicant has made all reasonable efforts to determine and identify persons who may be affected by the proposed project or use, and has obtained the express consent to the proposed project or use or explaining the nature of any objection and providing contact information for the objecting person.

f. If the proposed project or use involves placement on private property of material dredged from state-owned property, the applicant shall obtain and provide to the secretary together with the BUDM plan an exemption or waiver from the royalty payment required by state law; or shall make the appropriate payment upon approval of the plan and execution of the project, and submit documentation of payment to the secretary within 15 days of making the payment.

g. The applicant shall attach to the BUDM plan a written affirmation that the applicant is solely responsible for, and agrees to defend, indemnify, and hold harmless all state and local agencies, officers, and employees from, any responsibility, liability, claim, judgment, or regulatory order or direction arising from the approved BUDM plan or any activity undertaken by the applicant or its employees, agents, or contractors pursuant to or in relation to the approved BUDM plan.

4. Implementation of Project for Beneficial Use of Dredged Material

a. An applicant electing to implement a project for the beneficial use of the dredged material shall submit a BUDM plan proposing the implementation of a specific project for which the dredged material will be used in a manner to protect, create, or enhance wetlands.

b. The BUDM plan shall include:

i. statement of the nature and location of the proposed project;

ii. statement of the manner in which the material is proposed to used in the project, including the type of equipment proposed to be used;

iii. statement of the manner and extent to which the project is expected or intended to protect, create, or enhance wetlands;

iv. statement of the manner and extent to which the project may or will create impacts that may require mitigation;

v. statement of the estimated time schedule for the project;

vi. statement of the estimated cost of the project;

vii. design and construction plan for the project; and

viii. any other information or statements required by the secretary.

5. Providing for Use on Existing Coastal Restoration Project

a. An applicant electing to provide for use of the dredged material on an existing coastal restoration project shall submit a BUDM plan proposing a specific project for which the dredged material will be used in a manner to protect, create, or enhance wetlands. The project may be one being implemented pursuant to the master plan, or a specific project to be conducted by a public or private entity.

b. The BUDM plan shall include:

i. statement of the nature and location of the project for which the dredged material is proposed to be used;

ii. statement of the means by which the material is proposed to be stored pending use and transported to storage and to the project, including the type of equipment proposed to be used;

iii. statement of the manner in which the material is proposed to be used in the project, including the type of equipment proposed to be used;

iv. statement of the estimated time schedule for use of the material for the project;

v. statement whether the project is included in the master plan or associated annual plan(s), page reference if so, and specific citation of the project by name, number, and/or other appropriate identifying information;

vi. statement of the manner in which the project is expected or intended to protect, create, or enhance wetlands;

vii. statement of the manner in which use of the dredged material for the project is expected or intended to protect, create, or enhance wetlands;

viii. statement of the manner and extent to which use of the material and transportation of the material to the project may or will create impacts that may require mitigation;

ix. contact information for project managers for each state, federal, and/or local agency and each private entity involved in the project;

x. written agreement signed by the agency or person charged with construction of the project, and by the prime contractor responsible for constructing the project, if applicable, agreeing to the proposed use of the dredged material for the project in the proposed time frame, and setting forth the authority of the persons signing the agreement to enter such an agreement;

xi. estimated cost to the applicant for transporting or otherwise processing the material for the proposed project; and

xii. any other information or statements required by the secretary.

6. Conducting an Alternative Dredging Activity

a. An applicant electing to conduct an alternative dredging activity and beneficially use material dredged pursuant to that activity shall submit a BUDM plan proposing a specific alternative dredging activity, a specific use of material to be dredged pursuant to that activity, and disposition of the dredged material from the proposed activity.

i. The volume of material dredged and used pursuant to the alternative activity shall be equal to or greater than the volume of dredged material from the proposed activity.

ii. The material dredged pursuant to the alternative activity may be used for an independent activity not associated with a project, a project being implemented pursuant to the master plan, or a specific project to be conducted by a public or private entity.

b. The BUDM plan shall include:

i. statement of the nature and location of the alternative dredging activity;

ii. statement of the means by which material dredged pursuant to the alternative activity is proposed to be stored pending use and transported to storage and to the site of use, including the type of equipment proposed to be used;

iii. statement of the nature and location of the proposed site of use of the material.

iv. statement of the manner in which the material is proposed to be used, including the type of equipment proposed to be used;

v. statement of the estimated time schedule for the proposed use of the material;

vi. statement whether the proposed use is for a project included in the master plan or associated annual plan(s), page reference if so, and specific citation of the project by name, number, and/or other appropriate identifying information;

vii. statement of the manner in which the proposed use is expected or intended to protect, create, or enhance wetlands;

viii. statement of the manner and extent to which the proposed alternative dredging activity, use of the material, and transportation of the material to the site of use may or will create impacts that may require mitigation;

ix. if the proposed dredging activity or use involves an agency or person other than the applicant, contact information for project managers for each state, federal, and/or local agency and each private entity involved in the proposed dredging activity and use;

x. if the proposed use is for a project or other activity being conducted by an agency or person other than the applicant, written agreement signed by the agency or person charged with construction of the project, and by the prime contractor responsible for constructing the project, if applicable, agreeing to the proposed use of the material for the project in the proposed time frame, and setting forth the authority of the persons signing the agreement to enter such an agreement;

xi. statement of the estimated cost to the applicant for the proposed alternative dredging activity, use of the material dredged pursuant to that activity, and transportation or other processing of the material for the proposed use;

xii. design and construction plan for the proposed alternative dredging activity and for the proposed use of the material dredged pursuant thereto;

xiii. statement of the proposed manner of disposition of the dredged material from the proposed activity; and

xiv. any other information or statements required by the secretary.

7. In-Lieu Contribution

a. In lieu of constructing a project, providing for use on another project, or conducting an alternative dredging activity for the beneficial use of dredged material, the applicant may elect to make a contribution in accordance with this section. An applicant electing to make an in-lieu contribution shall submit a BUDM plan proposing the contribution in accordance with this section.

b. The amount of the contribution shall be the greater of $1 or 1.5 percent of the average of the 12 monthly postings by the United States Department of Energy, Energy Information Administration of the Cushing, Oklahoma West Texas Intermediate Spot Price FOB (dollars per barrel) for crude oil for the fiscal year (July June) immediately preceding the date of submission of a complete application, per cubic yard of dredged material that will not be replaced at the conclusion of the proposed activity, or within a reasonable time after initiation of the proposed activity in the case of a continuing activity. However, the amount of the contribution shall be limited to one-third of the cost of the dredging component of the proposed activity, unless the dredging is to be accomplished by "prop washing" or any variation thereof, in which case the amount of the contribution shall be limited to one-third of the cost to perform traditional excavation-type dredging of the same volume of material.

c. Prior to issuance of the final coastal use permit or other authorization, an applicant electing to make an in-lieu contribution shall remit payment to the department payable to Louisiana Department of Natural Resources.

d. For a continuing activity for which a coastal use permit or other authorization has been issued and the applicant has elected to make an in-lieu contribution, the contribution shall be paid at the time each individual dredging incident authorized by the permit is approved. The applicant shall remit payment to the department payable to Louisiana Department of Natural Resources.

e. In-lieu contributions are designed to provide a cost-effective mechanism for permit applicants to meet the performance standards established by R.S. 49:214.30(H) without sacrificing safeguards to the coastal ecosystem and opportunities for multiple uses of the coastal zone. In accordance therewith, such contributions shall be paid into the Coastal Resources Trust Fund as provided by R.S. 49:214.40.

i. The department shall keep records clearly showing all deposits to, payments from, and the current net amount in the Coastal Resources Trust Fund attributable to in-lieu contributions.

ii. The secretary may use the funds in the Coastal Resources Trust Fund attributable to in-lieu contributions for the following purposes:

(a). creation of long term management strategy disposal areas for beneficial use of dredged material;

(b). creation of vegetated wetlands, including coastal forests;

(c). creation or enhancement of barrier islands, barrier shorelines, or associated dunes;

(d). structural or non-structural shoreline modifications to hydrology to achieve the creation, enhancement or protection of coastal wetlands, barrier islands, beaches or dune assemblages; or

(e). any other purpose that the secretary determines will result in creation, enhancement, or protection of coastal wetlands.

iii. The secretary shall adopt a method whereby the success of each project undertaken with these funds is determined and monitored.

iv. Funds in the Coastal Resources Trust Fund attributable to in-lieu contributions may not be used for administrative purposes.

8. Non-Compliance.

a. Compliance with the requirements of this section is a condition of approval of the application and of any permit issued to the applicant. If an application is approved and the applicant fails to comply with applicable provisions of this section, the applicant shall be deemed to be in violation of the permit and subject to all applicable penalties.

b. If an application is approved and in the applicant does not comply with the approved BUDM plan, the applicant shall be deemed to be in violation of the permit and subject to all applicable penalties.

9. Miscellaneous

a. The secretary shall determine whether to cumulate activities sought to be permitted through multiple applications, for purposes of determining whether the 25,000-cubic-yard threshold is exceeded. This determination shall be made on the basis of whether the activities would normally be considered to be parts of a single economic activity and/or whether the applicant has sought to evade the beneficial use requirement.

b. The secretary may approve the accrual of mitigation credits resulting from the beneficial use of dredged material. Any mechanism adopted by the secretary for this purpose shall conform to state mitigation regulations in Subpart C of this Part. The secretary shall also make every reasonable effort to have the mechanism adopted for this purpose conform to federal mitigation regulations of the U.S. Army Corps of Engineers as set forth at 33 CFR Parts 320-330 and the U.S. Environmental Protection Agency as set forth at 40 CFR Part 120.

La. Admin. Code tit. 43, § I-723

Promulgated by the Department of Natural Resources, Office of the Secretary, LR 6:493 (August 1980), amended LR 8:519 (October 1982), amended by the Department of Natural Resources, Office of Coastal Restoration and Management, LR 16:625 (July 1990), amended by the Department of Natural Resources, Office of the Secretary, LR 21:835 (August 1995), amended by the Department of Natural Resources, Office of Coastal Restoration and Management, LR 28:516 (March 2002), amended by the Department of Natural Resources, Office of the Secretary, LR 35:2184 (October 2009), LR 35:2188 (October 2009), amended by the Department of Natural Resources, Office of Coastal Management, LR 39:327 (February 2013), Amended by the Department of Natural Resources, Office of Coastal Management, LR 39:327 (February 2013), LR 40:2595 (12/1/2014).

AUTHORITY NOTE: Promulgated in accordance with R.S. 49:214.21-41.