Title 26
Chapter 2
ADMINISTRATIVE RULES
(Adopted pursuant to the American Samoa Coastal
Management Act of 1990, ASCA § 24.0506, July 9, 1997.)
TABLE OF CONTENTS
26.0201 Adoption authority
26.0202 Purpose
26.0203 Construction
26.0204 Definitions
26.0205 Interagency coordination
26.0206 Establishment of the Project Notification and Review System;
jurisdiction, members, conduct of meetings, voting
26.0207 Land use permit application procedures,
fees, and penalties
26.0208 Types of activities: grandfathered, exempt, minor and major
projects
26.0209 Review of land use permit applications
26.0210
Land use permit: issuance, duration, and contents
26.0211 Land use permits: amendment
26.0212 States of emergency and emergency land use
permits
26.0213 Monitoring and regulation, authority and
duty
26.0214 Stop work orders
26.0215
Citations
26.0216 Revocation of land use permit
26.0217
Standing
26.0218 Motion for reconsideration and special land
use permits
26.0219 Appeals
26.0220 Standards and criteria for review
26.0221 Special Management Areas
26.0222 Wetlands
26.0223 Coastal hazards
26.0224 Territorial environmental assessments
26.0225
National Environmental Policy Act
26.0226 Federal Consistency
26.0227 Public Information and Education
26.0228 Public records
26.0229 Severability
ADMINISTRATIVE RULES
26.0201 Adoption
authority. The American Samoa Coastal
Management Program administrative code is adopted pursuant to authority granted
the Department of Commerce under Public Law 21-35, the American Samoa Coastal
Management Act of 1990, ASCA §§ 24.0501 et. seq.
26.0202 Purpose. The provisions of this chapter govern the
administration of the American Samoa Coastal Management Program. The Act mandates the establishment of a
system of environmental review, along with economic and technical
considerations, at the territorial level intended to ensure that environmental
concerns are given appropriate consideration in the land use decision-making
process. The provisions of this chapter
establish a consolidated land use permitting process, known as the Project
Notification and Review System, including development standards, procedures for
the designation, planning and management of Special Management Areas,
procedures for environmental assessments, and procedures for determination of
federal consistency. The provisions of
this chapter are not intended to negate or otherwise limit the authority of any
agency of the Territory, provided that actions by agencies shall be consistent
with the provisions contained herein. The provisions of this chapter are consistent
with the Coastal Zone Management Act of 1972, as amended, 16 USC §§ 1451 et.
seq.
26.0203 Construction. The provisions of this chapter shall be
construed to secure the just and efficient administration of the Act. In any conflict between a general provision
and a specific provision, the specific shall control over the general.
26.0204 Definitions. The following definitions shall apply:
A. Act means the American Samoa Coastal Management Act of
1990, ASCA §§ 24.0501 et. seq.
B. Agency means any executive, autonomous, or legislative
board, department, office, commission, committee, or other instrumentality
created by the Revised Constitution of American Samoa of 1967, the American
Samoa Code Annotated, the American Samoa Administrative Code, or by executive
order of the Governor.
C. Applicant means any person or agency of the
territorial or federal government who, pursuant to the Act and provisions of
this chapter, files an application for a land use permit.
D. Best management practices means economically
achievable measures through the application of the best available practices,
technologies, processes, siting criteria, operating methods, or other
alternatives that will reduce, limit, or improve developmental impacts within
the coastal zone.
E. Board means the Project Notification and Review System
Board.
F. Chair means the Chair of the Project Notification and
Review System Board.
G. Coastal resource means the land, air, water, minerals,
flora, fauna, and objects of historic or aesthetic significance of the
Territorial coastal zone. Coastal
resources include, but are not limited to, submerged lands, reef systems,
groundwater recharge areas, archaeological/cultural/historic resource sites and
properties, Special Management Areas, pristine ecosystems, mangroves, wetlands,
beaches, areas of scientific interest, recreational areas, undisturbed native
vegetation, and critical habitat.
H. Container mans a single rigid, intermodal dry cargo,
insulated refrigerated, flat rack, liquid tank, or open door container,
demountable, without wheels or chassis attached, furnished or approved by ocean
carriers for transportation of commodities aboard ocean going vessels. Modules are generally known as 20-footers and
40-footers, even though they may be less than twenty (20) or forty (40) feet in
length. Sean vans (types used for
household goods) or other similar shipping container or cargo boxes are
excluded from this definition.
I. Days mean normal calendar days, including holidays,
unless otherwise indicated “business days.”
J. Director means the Director of the Department of
Commerce or his designee.
K. Environment means humanity’s surroundings, inclusive
of all the physical, economic, and social conditions that exist within the area
affected by a proposed action, including land, human, and animal communities,
air, water, minerals, flora, fauna, and objects of historic or aesthetic
significance.
L. Feasible means capable of being accomplished in a
reasonable period of time, taking into account economic, social, technological,
and environmental factors. Use of this
word includes, but is not limited to, the concept of reasonableness and
likelihood of success in achieving the project goal or purpose.
M.Feasible alternatives means alternatives to the
proposed project, use or activity, and applies both to locations or sites, to
methods of design or construction, and includes a “no action” alternative.
N. Federal government means the government of the
O. Manager means the American Samoa Coastal Management
Program Manager who is responsible for the overall implementation and
administration of the American Samoa Coastal Management Program.
P. Matai means the titled head of a Samoan extended
family, the Sa’o.
Q. Person means any individual, partnership, firm,
association, trust, estate, private corporation, an agency of the territorial
or federal government or other legal entity.
R. Public need means a need of the people of the
Territory as opposed to the needs of an individual or group of
individuals. In assessing whether there
is a public need, one must look at the basic service provided and to whom the service
is provided. The basic purpose must be
one for which a village, group of villages, county, district, or the Territory,
has a demonstrated need.
S. Pulenu’u means the official representing central
government in a village; the village mayor.
T. Sami means shoreline and refers directionally towards
the ocean or away from the mountains.
U. Sustained yield means resource management used to
achieve a balance between the rates of renewable resource consumption and
renewal, recruitment, or productivity.
V. Territory means the United States Territory of
American Samoa.
W.
Water-dependent
means a project, use or action, which can be carried out only on, in, or
adjacent to water areas because it requires access to water.
X. Water-related means a project, use or action which is
not directly dependent upon access to a water body, but which provides goods or
services that are directly associated with a water-dependent use.
26.0205 Interagency coordination.
A. All territorial agencies and their employees shall
conform to the provisions of this chapter. These agencies shall ensure that their
activities, or any possible indirect result of their activities, shall further
the purposes, objectives and policies of the Act.
B. The Director shall schedule periodic meetings or
workshops with the Board member agencies in order to ensure that practices and
procedures under the provisions of this chapter are fully understood to
maximize coordination, thoroughness, and attainment of the purposes, objectives
and policies of the Act and the provisions of this chapter.
26.0206 Establishment
of the Project Notification and Review System:
jurisdiction, members, conduct of meetings, voting.
A. There is established and consolidated within the Department
of Commerce a steamlined land use permit system that integrates the permitting
requirements of each of the territorial agencies concerned with environmental
management and shall be known as the Project Notification and Review System.
B. The jurisdiction of the Project Notification and
Review System shall be the coastal zone of American Samoa.
1. Coastal zone or coastal zone area means the coastal
waters, including the waters therein and thereunder, in proximity to the
shorelines of the Territory, and includes islands, transitional and intertidal
areas, salt marshes, wetlands, and beaches.
The coastal zone extends inland from the shorelines to the extent
necessary to control the shore, the use of which has a direct and significant
impact on the coastal waters. Excluded
from the coastal zone are lands the use of which is by law subject solely to
the discretion of or which is held in trust by the federal government, its
officers or agents, and to control those geographical areas which are likely to
be affected by or vulnerable to sea level rise.
2. The
C. Members of the Project Notification and Review System:
1. The Project Notification and Review System shall be
administered by the Project Notification and Review System Board.
2. Members of the Board shall be the directors or their
designee of the Territory agencies which have permitting or regulatory
authority on land use development and environmental matters in the coastal
zone.
3. The Board includes the following:
a. Department of Commerce;
b.
c.
d.
e. Department of Health;
f. Department of Marine and Wildlife Resources;
g. Department of Parks and Recreation; and
h. Department of Public Works.
4. The Director shall appoint an ex-officio Chair who
shall chair regular and special meetings and public hearing, but who shall not
vote, provided that if the Board is evenly divided, then the Chair shall cast
the deciding vote.
5. The American Samoa Coastal Management Program shall
provide support staff for the Board and all necessary supplies.
D. Meetings
1. The Board shall convene regular meetings or special
meetings at times and places as determined by the Chair. Minutes of all meetings shall be kept and
shall be reviewed and approved by the Board and made available to the public
upon request. Board proceedings shall be
informal and presided over by the Chair.
The presence of five (5) members shall constitute a quorum.
a. Regular meetings shall be scheduled for the first and
third Wednesday of each month, unless the Director determines that rescheduling
is appropriate due to a public holiday or a government function.
b. Special meetings may be scheduled by the Director upon
receiving a written request from a land use permit applicant that the Board’s
review of a project, use or activity is necessary rather than at the regular
meeting dates. All procedures and
policies shall be applied to special meetings.
2. All meetings of the Board shall be open to the public
and public notice shall be given. The
Board may adjourn and reconvene in executive session for the purpose of
consulting with staff regarding legal, technical, and personnel matters. Minutes of the executive session are
confidential and shall be stored in such a manner to protect
confidentiality.
E. Voting
1. All action by the Board shall be by vote and publicly
cast.
2. Each member agency shall have one vote.
3. Unless otherwise provided by the provisions of this
chapter all actions taken by the Board shall be by majority vote of those
present.
4. All Board members participating in decisions regarding
land use permits shall do so in a fair and impartial manner.
a. Board members shall not participate in decisions on
land use permit where there exists and appearance or an actual conflict of
interest.
b. If any member agency of the Board submits a land use
permit application, that member agency shall be recused
from voting on the proposed project.
c. A representative of a Board member agency who is
recused hereunder shall be counted for purposes of determining a quorum.
F. Pursuant to ASCA § 24.0506, any agency of the
Territory may be called upon by the Board to advise on projects relevant to
their particular authority or jurisdiction.
26.0207 Land use permit application procedures,
fees, and penalties
A. Applicability.
All persons proposing to undertake any action which may cause or
threaten an adverse impact to coastal resources shall apply for a land use
permit, except where specifically exempted by law.
1. A land use permit means a written authorization signed
by the Director on an approved form that authorizes a specified party to
undertake a specified project, use or action.
2. A land use permit application is necessary for all
physical project work, including, but not limited to, site preparation,
filling, grading, dredging, excavation, and erection or siting of
structures.
B. Burden on applicant.
In all cases, the burden is on the applicant to obtain the proper
permits and signatures required for the project prior to commencement of the
work. Federal permits may also be
necessary for certain projects. The
American Samoa Coastal Management Program will make reasonable attempts to
assist a land use permit applicant with federal permit application
requirements; however obtaining federal and territorial permits and approvals,
such as from the Zoning Board and the Territorial Planning Commission, remains
the responsibility of the applicant.
C. Preapplication consultation. A preapplication consultation may be held
between prospective land use permit applicants and the American Samoa Coastal
Management Program to determine the likelihood of the project, use or action
being proposed having an adverse impact on coastal resources requiring a land
use permit. If so determined, the
American Samoa Coastal Management Program shall make a preliminary
determination whether the project constitutes a major or minor project and
shall assist the applicant in identifying the information required to submit a
land use permit application. The
American Samoa Coastal Management Program shall also assist the applicant in
understanding the applicable provisions and procedures of the Act and the
provisions of this chapter and shall assist the applicant in scheduling any
necessary subsequent meetings.
D. Scoping meetings for major projects. For those projects, uses or activities of
sufficient complexity that benefits might be derived from preliminary
assessment by several agencies, a scoping meeting of the Board, and other
invited agency and members of the public, may be requested by the prospective
applicant or any member of the Board.
Such scoping meetings shall be solely for the purpose of discussing
conceptually the proposed project, in order to obtain preliminary feedback as
to the type and degree of impact analysis that may be required, and to
determine, if possible, any other local and federal permits that may be
required.
E. When to file.
Land use permit application forms shall be made available at the
Department of Commerce. The completed
land use permit application shall be filed with the Department of Commerce for
review at any time during normal business hours.
F. Application package.
1. The land use permit application shall be accompanied
by the following documents:
a. a vicinity map;
b. a fully dimensioned site plan that shall include
topographic data at a scale appropriate to discern the principal features of
the site, a functional floor plan, a container plan, and a parking plan;
c. an erosion control plan necessary to reduce non-point
source pollution that includes existing contours and proposed final grading of
the site, existing and proposed drainage, a description of adjacent and down
slope sites, and a narrative of how the proposed drainage plan will impact
those sites;
d. a federal
consistency certification (or if a federal agency, a consistency determination)
and an environmental assessment, if applicable; and
e. any other supporting documentation that may be
required by law or by the provisions of the chapter.
2. All information submitted with the application or at any
other time in the review process shall be public information, provided that
certain proprietary information, not material to a review of project
compliance, may be withheld if requested in writing to the Chair and such
request is approved.
G. Information requirements. The land use permit application shall contain
at a minimum the following information:
1. applicant’s name, mailing address, and telephone
number;
2. applicant’s representative, if any, and architect,
engineer or contractor, if any, including their mailing address and telephone
number;
3. applicant’s interest in the project site, e.g., owner,
lessee;
4. name of the landowner or the matai for the project
site;
5. signature of the matai, if communal land;
6. signature of the pulenu’u, if communal land;
7. signature of the secretary of Samoan Affairs if,
communal land;
8. signature of the Governor, if government land;
9. copy of the legal title to the land, if privately
owned land;
10.
copy of lease or
license agreement, if title is held under such agreement;
11.
project name and
description;
12.
concise written
narrative describing the project and its function;
13.
site description
and location;
14.
construction
methods, including dredge, fill or excavation requirements, if any;
15.
total project
cost for all projects and, if federal funds are involved, funding source;
16.
distance of
project from the shoreline, if project is located within two hundred feet
(200’) of the shoreline;
17.
current and
projected utility requirements and connections, including streets, sewer,
water, electricity, fuel (including storage on site) and all existing and
proposed line locations, including size and engineering requirements;
18.
statement of
compliance with the policy objectives of the American Samoa Coastal Management
Program
19.
copies of all
correspondence on the project with the Board member agencies or any other
governmental agency; and
20.
copies of all
federal permits or applications or documentation from the appropriate agency
showing that the project is being carried out pursuant to an existing federal
permit, license, or grant.
H. Declaration of applicant. A land use permit application shall include a
signed declaration by the applicant that the information supplied in the land
use permit application, including all exhibits and attachments, is true and
correct, under penalty of law.
I. Administrative fees and penalties. At the time of filing a land use permit
application, payment of an administrative fee is required. The “Cost of Project” shall be determined in
accordance with the Uniform Building Code as adopted in the Territory, and
shall include all improvements associated with the project. There shall be no administrative fee for
government agency-funded projects or projects of not-for-profit U.S. Internal
Revenue Code § 501(c)(3) corporations; however, penalties shall be assessed for
government and not-for-profit projects that commence prior to the Director
issuing a land use permit.
1. Administrative fees shall be set in accordance with
the following fee schedule:
a. Exempt and grandfathered projects requesting
certification for utility connection: no
administrative fee.
b. Minor and major projects: fees shall be determined by the actual cost
of the project or the anticipated value of the project, whichever is greater.
(1) Less than
$10,000 $10
(2) $10,000 to
$29,999 $25
(3) $30,000 to
$49,999 $50
(4) $50,000 to
$249,999 $150
(5) $250,000 to
$499,999 $300
(6) $500,000 to
$1,000,000 $500
(7) For each
additional $1,000,000 increment or portion thereof, there shall be assessed an additional fee of
$500.
2. After-the-fact penalty for filing a land use permit
application after work commenced.
a. In addition to the land use permit fee and other
penalties provided by law or the provisions of this chapter, a penalty of $100
or 200% of the land use permit fee, whichever is greater, shall be assessed for
a project for which physical work has been commenced prior to receiving a valid
land use permit.
(1) Less than
$10,000 $100
(2) $10,000 to
$29,999 $100
(3) $30,000 to
$49,999 $100
(4) $50,000 to
$249,999 $300
(5) $250,000 to
$499,999 $600
(6) $500,00 to
$1,000,000 $1,000
(7) For each
additional $1,000,000 increment or portion thereof , there shall be assessed an
additional penalty of $1,000.
b. The Board shall not issue a land use permit until all
administrative fees, after-the-fact penalties, stop work orders, or citations,
as consistent with this chapter, are resolved.
J. In the case of work commenced without a land use
permit, should the Board determine that the applicant is not eligible for a
land use permit, the applicant shall restore the site to its pre-work
condition.
1. If the applicant refuses or is unable to take the
required remedial action, the American Samoa Government may perform the necessary
remedial action, and
2. the applicant shall be financially responsible for all
costs associated with the necessary remedial action to restore the site to its
pre-work condition.
26.0208 Types of activities; grandfathered, exempt,
minor and major projects.
A. Grandfathered use.
1. Grandfathered use means any non-conforming structure
that was a previously lawful project, use or activity existing as of
2. Grandfathered uses may be continued, provided that any
grandfathered use or building shall conform with the provisions of this
chapter, if the project, use or activity:
a. Changes to another use.
b. Resumes after discontinuance for a period of one year
or more.
c. Alters or extends the footprint of the structure.
3. The American Samoa Coastal Management Program shall
certify that the structure is grandfathered under the provisions of this
chapter for utility connection.
B. Exempt activity.
1. Exempt activities means projects which do not
adversely impact coastal resources, and thus shall not require a land use
permit.
2. Exempt activities include:
a. constructing and maintaining a Samoan umu or cook
house, or a faleo’o or small guest house;
b. maintaining or repairing an existing single family
home or other structure, that does not change the footprint, increase
dimensions, or change the use of the structure;
c. connecting utilities, including water, sewer, and
electricity, provided that a valid land use permit or a grandfather certificate
exists for the structure for which the connection is requested;
d. siting intermodal containers or freezer containers for
the purposes of loading and off-loading which does not exceed thirty (30) days;
provided that if siting exceeds thirty (30) days, placement of containers shall
be classified as a major project;
e. landscaping, including clearing and grading, that does
not exceed ten (10) cubic yards of topsoil, provided that cider shall not be
used;
f. erecting non-permanent structures for political
campaign, public service or fund raising activities and government sponsored
cultural celebrations, events or activities that do not exceed seventy-two [72]
hours;
g. traditional Samoan uses which means low-intensity or
low-density traditional subsistence or communal uses and practices, which use
traditional methods and materials. Such
uses may not surpass the sustained yield of any given resource; and
h. subsistence taking and gathering of animals, fish, sea
creatures or vegetation historically used in the Samoan islands by traditional
methods for the personal use of the immediate family; except that:
(1) animal
husbandry, including piggeries, shall be classified as a major project;
(2) subsistence
hunting, fishing, and agricultural activities do not include commercial, for
profit or for barter activities.
(3) subsistence
activities, while exempt from the need for a land use permit, are not exempt
from compliance with other federal or territorial laws or regulations.
3. If a person assumes that the project, use or activity
is exempt, and the American Samoa Coastal Management Program later determines
that the project is not exempt, but rather that the project, use or activity is
a minor or major project, the person is responsible for administrative fees,
after-the-fact penalties for building without a valid land use permit, and any
possible citations that may have been issued as consistent with this chapter.
C. Minor projects.
1. Minor projects means any project, use or action that
may have an adverse impact on coastal resources, particularly when viewed
within the context of the cumulative or secondary impacts; provided that, where
the location of project has the potential for significant adverse impacts on
coastal resources, the project, use or activity shall be deemed a major
project.
2. Minor projects include:
a. constructing a single family home;
b. constructing Samoan cultural facilities
including: fautasi boat houses,
faletalimalo or guest house, and fale leoleo or guardhouses;
c. constructing structures or extensions to existing
non-commercial structures that do not exceed one hundred twenty (120) square
feet; and
d. erecting non-permanent structures that shall not
exceed thirty (30) days, provided that this section shall not apply to the
placement of intermodal containers or freezer containers.
D. Major projects.
1. Major projects means a proposed project, use or action
which is likely to have significant adverse impact on coastal resources.
2. Major projects include, but are not limited to:
a. creating, expanding, or extending any commercial
activity;
b. siting permanently or continually replacing intermodal
containers or freezer container, including enclosing, connecting utilities, or
any other permanent action which exceed thirty (30) days;
c. creating a new, or relocating an existing, discharge
of pollutants to ocean, surface, or ground waters;
d. substantially increasing the volume of discharge or
the loading of pollutants, including air pollution, from an existing source or
from new facilities to receiving waters;
e. significantly impacting the quality of the human
environment, either individually or cumulatively;
f. siting major facilities;
g. landfilling, excavating, disposing of dredged
materials, mining, quarrying;
h. incinerating private, municipal or medicinal wastes;
i. dredging or filling marine or fresh waters, point
source discharging of water or air pollutants, ocean dumping, or constructing
artificial reefs;
j. establishing or expanding agriculture or livestock
facilities, including:
(1)
silviculture or timber operations;
(2) aquaculture
facilities, which means the culture or commercial production of freshwater or
marine plants or animals for research or food production; and
(3) subsistence
animal husbandry, including piggeries.
k. contaminating ground water, including underground
injection of hazardous wastes or fluids used for extraction of minerals or oil,
or of certain other fluids with potential to contaminate ground water;
l. projects, uses or activities under the direct or
indirect jurisdiction of a federal agency, including:
(1) those
carried out by or on behalf of the agency;
(2) those
carried out with federal financial assistance;
(3) those requiring
a federal permit, license, or approval; and
(4) those
subject to territorial or local regulation administered pursuant to a
delegation or approval by a federal agency.
m. locating any project use or action within or adjacent
to a Special Management Area, or any other designated resource management area
of the Territory, including but not limited to the following;
(1)
(2)
(3)
(4) Ofu-Vaota
Marine Park.
n. project, uses or activities the cost of which is
greater than $250,000;
o. project, uses or activities that have the potential
for significant adverse impacts on floodplains, coastal hazards areas or
erosion prone sites; or
p. in the view of any single agency member of the Board,
are found to have the potential for a significant adverse impact on coastal
resources.
26.0209 Review of land use permit applications.
A. Acceptance for review.
Acceptance for review means a formal determination that a document is
sufficiently complete to commence its review.
1. Upon filing the application with the Department of
Commerce, the Manager shall ensure that the application is complete, that the
vicinity map and site plan are acceptable, and that all other necessary
documents are attached.
2. If any additional information is required, the
applicant will be notified; provided that, if the required information is not
provided by the applicant within ninety (90) days of the notification, the land
use permit application shall be considered void.
3. Once all necessary materials are submitted by the
applicant, the Manager shall: make a
determination of whether the project is a major or minor project; make a
determination of acceptance for review; and notify the applicant.
B. Public notice.
1. Minor projects.
Upon acceptance for review the American Samoa Coastal Management Program
shall post notice of the application at the Department of Commerce. The notice shall remain posted for three (3) business
days. No action on the permit can be
taken during the notice period.
2. Major projects and project requesting federal
consistency. Upon acceptance for review
the American Samoa Coastal Management Program shall post notice in the
Department of Commerce which shall remain posted until a final decision has
been made. Additionally, the notice
shall be published in a newspaper of general circulation in the Territory, at
least one (1) week prior to the Board’s review of any project, use or
activity. The notice shall contain: the status of the project review; a statement
that a record of the project proposal is available for public inspection; a
statement that public comments will be considered; and information on the
procedures by which the public may request a public hearing, and the date,
time, and location of the Board’s review of the land use permit application
under consideration. The applicant shall
be given at least seven (7) days written notice of the meeting.
C. Site visit.
1. The American Samoa Coastal Management Program shall
conduct a site visit and prepare a report prior to taking action on any land
use permit application. The report shall
be maintained as part of the application record.
2. For major projects the American Samoa Coastal Management
Program shall coordinate a site visit for the Board and prepare a report prior
to taking action on my land use permit application.
D. Review standards.
1. The proposed project shall be reviewed in accordance
with the Act and the provisions of this chapter.
2. The issuance of an approved land use permit does not
relieve an applicant from complying with any other required territorial or
federal permits, licenses, clearances, or approvals which may be required by
law or regulation.
3. Reclassification of a project from minor to
major. Any Board member may reclassify a
minor project to a major project. The
justification for the reclassification shall be stated in writing and added to
the applicant’s file. Upon
reclassification, all provisions of this chapter applicable to major projects
shall apply.
E. Minor project review.
1. Minor projects shall be reviewed by the American Samoa
Coastal Management Program who may consult with diverse government agencies for
technical assistance.
2. A decision shall be issued not less than five (5)
business days from the close of the published notice, provided that any Board
member has not reclassified the project, use or activity as a major
project.
F. Major project review.
1. Major projects shall be reviewed, evaluated, and a
decision made by the Board at a regular or special meeting.
2. A decision on a land use permit application for a
major project shall be issued within forty-five (45) days from acceptance for
review.
a. The forty-five (45) days review period shall be
suspended if:
(1) The
applicant or a designee fails to appear at a regular meeting, special meeting
or public hearing on three occasions without giving twenty-four (24) hours
notice requesting a continuance, the Board shall void the land use permit
application;
(2) Additional
information is requested by any Board member agency in order to properly
evaluate the project, provided that if the required information is not provided
by the applicant within ninety (90) days of the request, the Board shall void
the land use permit application:
(3) A public
hearing is held; or
(4) Any member
of the Board determines that an environmental assessment if necessary to
properly evaluate the project.
b. The forty-five (45) day period for review shall
commence upon receipt of the additional information required, the date the
public hearing is concluded, or the acceptance by the Board of an environmental
assessment.
3. Public testimony shall be heard by the Board when the
land use permit application is scheduled to be heard, as published in the
public notice, and all public testimony shall become part of the land use
permit applicant’s permanent file.
4. Public hearings.
a. A public hearing on a major project shall be held in
or near the village in which the project, use or activity is located, provided
that a request is made in writing to the American Samoa Coastal Management
Program by:
(1) any Board member agency;
(2) any other territorial or federal agency;
(3) any publicly funded organization representing no less
than twenty-five (25) members;
(4) any landowner or occupier within two hundred (200)
feet of the project site;
(5) no less than twenty-five (25) members of the public;
or
(6) the project includes the construction of major
facilities.
b. A public hearing shall be called as soon as
practicable after the determination is made to hold a public hearing, but in no
event shall a public hearing be held with less than fourteen (14) days notice
posted at the Department of Commerce, and published at least once a week for
two (2) consecutive weeks in a newspaper of general circulation in the
Territory.
c. The Board may exempt from the public hearing
requirements any major project which is funded by federal grants that has had a
public hearing equivalent to the environmental review process of the Project
Notification Review System, as provided by this chapter, as part of the grant
process. In such case the record of the
prior public hearing shall be filed with the Board.
5. Written technical findings shall be prepared by each
Board member with jurisdiction.
a. If additional permits e.g., water quality
certification, are required, those Board members with jurisdiction shall
comment on the requirements.
b. If appropriate, project modifications, alternatives or
mitigating conditions shall be proposed.
c. If a project is found by a Board member not to be in
compliance, or capable of complying, with the requirements of the board
member’s agency, a written basis for such determination shall be provided to
the Board.
d. Technical findings and recommendations of the Board
and public comments shall be maintained as a part of the record.
6. Upon review of the entire record, the Board shall
determine whether the proposed project, use or action complies, or reasonably
can be conditioned to comply, with the Act, the provisions of this chapter, and
with the respective jurisdiction of each member of the Board.
a. An approved or conditional land use permit requires a
unanimous vote of the Board members present.
b. The Board’s decision shall include written findings of
fact and conclusions of law.
26.0210 Land use permits; issuance, duration, and
contents.
A. Issuance and duration
1. Upon a determination by the Manager in the case of a
minor project, or recommendation of the Board in the case of a major project,
the Director shall approve, approve with conditions, or deny the land use
permit application.
2. Physical development of the project which is approved
under a land use permit shall commence within one (1) year of the date the land
use permit is issued, and shall be completed within two (2) years of the date
of issuance; except:
a. If physical development of the project is not
commenced within one (1) year of the date the land use permit is issued, the
land use permit shall be voidable by the Board;
b. If work is discontinued for a period of one (1) year
or more, that land use permit is considered abandoned and a new land use permit
application shall be required; and
c. If the project is not completed within two (2) years
of the date the land use permit is issued, the Board may extend the permit
duration upon request by the applicant within six (6) months of the permit
expiration day.
3. The land use permit shall be posted at the site prior
to commencing physical development and visible to the public throughout the
duration of the project.
B. Contents
1. The land use permit shall be issued on a standard form
prepared by the Department of Commerce and shall contain at a minimum the
following information:
2. purpose and scope of the land use permit;
3. all conditions imposed by the Board;
a. All land use permit conditions shall be incorporated
into the final design plans of a land use permit.
b. The land use permit shall be submitted to each Board
member agency having jurisdiction over the conditions imposed who shall be
responsible for the enforcement of the conditions.
c. A performance bond or cash equivalent may be required
by the Board if a failure to adhere to the terms and conditions of a land use
permit may result in or threaten damage to coastal resources, including beyond
the boundaries of the project site.
d. All conditions imposed on a land use permit shall be
for the term of the permit, unless otherwise stated.
4. duration of the land use permit;
5. notice that the American Samoa Coastal Management
Program or member agencies of the Board have legal authority, as provided by
this chapter, to periodically inspect the project; and
6. notice that any deviation from the purpose and scope
of the land use permit, or any violation of the conditions of the permit, shall
subject the permittee to financial penalties and/or
revocation of the permit as provided by this chapter.
26.0211 Land use permits: amendment.
A. An amendment to a land use permit shall be required of
all projects before significant alterations or expansions occur.
B. The permittee shall submit a
revised land use permit application for consideration of the Board as
consistent with the provisions of this chapter.
C. Alterations and expansions requiring an amended land
use permit include, but are not limited to:
1. a project change which increases the project cost by
25% or more;
2. a project change which increases the square footage of
the project by 10% or more;
3. a modification or deviation of the site plan which
causes new or increased adverse impacts on coastal resources; or
4. a change in the proposed use.
26.0212 State of emergency and emergency land use
permits.
A. Upon a declaration of a state of emergency by the
Governor, due to a natural catastrophe or other act of God, or that the
provision of emergency services or repairs is necessary for the public good,
including the preservation of human life and property, an emergency land use
permit may be granted.
B. An applicant may seek an emergency land use permit by
application to the Director under the following procedures:
1. The Director shall issue an emergency land use permit
in writing to the agency providing the emergency services or repairs,
accompanied by written findings of fact and conclusions of law.
2. The emergency land use permit shall allow the stated
activities to occur for a period not to exceed ninety (90) days.
3. Notice shall be published at least twice post hoc in a
newspaper of general circulation in the Territory, specifying the duration of
the emergency land use permit and citing the reasons for the emergency land use
permit.
4. An emergency land use permit does not relieve the
emergency land use permittee from compliance with all
other applicable territorial and federal laws and regulations.
26.0213 Monitoring and regulation, authority and
duty.
A. The Manager, or any Board member agency, shall have
the authority and duty to investigate, monitor and regulate any and all
projects, uses and activities that require a land use permit pursuant to the
provisions of this chapter.
B. An application for a land use permit shall constitute
consent by the applicant that representatives of the American Samoa Coastal
Management Program, or any Board member agency, may enter the site of a
proposed project, use or action, at any reasonable time, for the purpose of
inspecting the site, before or after issuance of a land use permit.
C. If the Manager or any Board member agency, has
reasonable cause to believe a criminal offense has been committed under the
Act, the action shall promptly be reported to the Office of the Attorney
General. These provisions do not limit
the authority of any Board member to report offenses directly to the Attorney
General.
26.0214 Stop work orders
A. The Manager may issue a stop work order, upon finding
reasonable cause to believe that a project, use or action violates one or more
provisions of the Act, the provisions of this chapter or the terms and
conditions of a land use permit or that an imminent threat exists of adverse
impact.
B. The stop work order shall specify:
1. the provisions of law or the conditions of the land
use permit alleged to be violated and a statement of facts constituting the
violation; and
2. the corrective measures, if any, necessary to satisfy
compliance with the Act and the provisions of this chapter, including but not
limited to, immediate removal of any fill, structure, or other material, and
provide for a time period in which compliance shall be effected; and
3. that sanctions specified by the Act and the provisions
of this chapter may be imposed, unless the corrective measures are taken in the
time period provided, and advise that the stop work order may be contested as
provided by this section. At the
discretion of the Manager, the stop work order may authorize specific
mitigation work to be performed.
C. The stop work order shall be personally served upon
the land use permittee, if any, or the person in
charge at the site of the project, use or action, and shall be posted at the
site.
1. Copies of the stop work order shall be sent to the
Building Division, Department of Public Works.
2. It is a violation of the provisions of this chapter to
remove or otherwise deface a posted stop work order.
D. A stop work order may be contested by its recipient
upon giving notice, in writing, to the Manager within five (5) days of service of
the stop work order.
1. If a recipient of a stop work order submits a land use
permit application within ten (10) days of the stop work order, the land use
permit shall be reviewed and considered by the Board pursuant to the same
procedures applicable to a major project.
2. In the event a stop work order is contested, the
Manager shall schedule a hearing before the Board at its next regularly
scheduled meeting and notify the contestant at least twenty-four (24) hours
before the hearing. The Board may approve,
approve with conditions, or overturn the stop work order by a unanimous
vote. A decision shall be rendered
within thirty (30) days of the hearing and be accompanied by findings of fact
and conclusions of law.
E. In the event the recipient of a stop work order does
not comply with the terms of the stop work order or the decision of the Board,
if appealed, the matter shall be referred to the Office of the Attorney
General. The Attorney General is
authorized to petition the High Court of American Samoa for injunctive relief
to obtain compliance.
F. The stop work order shall remain in effect, except for
mitigative work authorized by the Manager, if a
citation has been issued, until the citation is adjudicated and all fines and
costs paid.
26.0215 Citations
A. Citations.
1. A person shall not engage in activities without an
approved land use permit, including but not limited to: site preparation, filling, grading, dredging,
excavation, erection or siting of temporary or
permanent structures or the permanent siting of
containers.
2. A land use permittee shall
not engage in activities in violation of an approved land use permit, including
the terms and conditions so stated;
3. A person shall not violate the provisions of this
chapter on Special Management Areas;
4. A person shall not violate the provisions of this
chapter on wetlands, including, but not limited to:
a. filling wetlands;
b. siting a project, use or activity within the wetlands
setback area;
c. siting a project, use or activity within the stream setback
area; and
d. hardening of stream banks.
5. Any other violation of this chapter.
B. Service of process for citations
1. As provided in ASCA § 24.0509, upon finding reasonable
cause to believe that a project, use or action violates one or more provisions
of the Act, the provisions of this chapter, or the terms and conditions of a
land use permit, the Manager or his designee may issue a citation
therefore.
2. The citation shall be personally served upon the land
use permittee, if any, or the person in charge at the
site of the project, use or action, and shall be posted at the site. Copies of the citation shall be sent to the
Attorney General and filed with the District Court of American Samoa.
a. The form of the citation shall be approved by the
Attorney General.
b. The citation shall be signed by the Manager or his
designee at the time of service.
c. The citation shall specify the provisions of law or
the land use permit condition(s) alleged to be violated.
d. The citation shall contain a statement of facts
constituting the violation; and
e. The citation may include corrective measures, if any,
necessary to satisfy compliance with the Act and the provisions of this
chapter, including but not limited to, immediate removal of any fill,
structure, or other material, and provide for a time period in which compliance
shall be effected.
3. A citation may answered in the manner provided in this
section.
a. If the citation is not answered by appearance, plea,
and waiver before the District Court of American Samoa before the close of
business hours within seven (7) business days from the date of service of the
citation, the defendant must appear in the District Court of American Samoa at
the time and date indicated thereon.
b. A complaint signed and sworn to by the person who
issued the citation, i.e. the Manager or his designee, shall be filed with the
clerk of the court before any offense may be heard or plea taken in court. The complaint shall be substantially in the
form prescribed for a citation in this section.
It may also contain other information pertinent to the alleged
offense.
4. Plea and trial
a. After reading the complaint to the defendant, the
District Court of American Samoa shall ask the defendant to answer. If the defendant does not contest the
allegations, the District Court of American Samoa shall assess the appropriate
fine. If the defendant contests the
allegations, the person who issued the citation, i.e. the Manager or the Compliance
Review Officer, shall present the District Court of American Samoa with the
grounds on which it was issued, adding evidence to this end. The Attorney General may assist to the extent
deemed necessary.
b. The defendant may then introduce evidence to establish
the fact that liability should not be imposed.
c. The District Court of American Samoa may examine the
evidence and question the parties and their witnesses at any time.
d. Any person charged with a violation of the Act, the
provisions of this chapter or a condition of a land use permit may appear
before the clerk of the court in person before the close of business hours and
within seven (7) business days from the date of service of the citation and,
upon signing a waiver of trial, pay the fine for the offense charged. Prior to signing a waiver of trial and
payment of the fine, the person charged with a violation shall be informed of
his or her right to appear before the District Court of American Samoa and that
a waiver shall have the same force and effect as a judgment of the District
Court of American Samoa.
C. It is a violation of the provisions of this chapter to
remove or otherwise deface a posted citation.
1. The citation shall remain in effect and all project
work shall cease, except for mitigative work
authorized by Manager, until the citation has been adjudicated, and, if
applicable, all fines and costs are paid.
2. In addition to any civil or criminal penalty, the
applicant shall immediately restore the site to the pre-offense condition at no
cost to the Territory.
26.0216 Revocation of a land use permit
A. If the Manager determines that a land use permittee has violated a provision of the Act, a provision
of this chapter or any provision of a land use permit, or that an imminent
threat exists to coastal resources or the public’s health, safety, or welfare,
a land use permit may be revoked pending a hearing before the Board.
B. Revocation of a land use permit
1. Where a land use permittee
is in violation of the Act, a provision of this chapter or any provisions of a
land use permit, or where a stop work order or citation has been issued, the
Manager shall initiate revocation proceedings by issuing a notice of revocation
to the land use permittee, citing the nature of the
violation, the legal authority for the proposed action, and the time and date
of a hearing to be held before the Board.
The land use permittee shall be given at least
seven (7) days notice of the hearing.
2. The Board may revoke a land use permit based upon any
of the grounds for bringing an enforcement action.
3. Upon revocation of a land use permit no further work
other than emergency mitigation measures ordered by the Manager shall be done
on a project, use or action until an amended or new land use permit has been
applied for and obtained pursuant to the Act and the provisions of this
chapter.
26.0217 Standing
A. Any person with standing who is aggrieved by any
decision of the Manager or the Board may file a motion for reconsideration and
appeal the decision.
B. The following persons have standing to file a motion
for reconsideration and appeal a minor land use permit decision of the American
Samoa Coastal Management Program:
1. the applicant for the land use permit;
2. any landowner or lessee within two hundred (200) feet
of the site of the project, use or action; or
3. any Board member agency.
C. The following have standing to file a motion for
reconsideration and appeal a major land use permit decision of the Board:
1. the applicant for the land use permit;
2. any landowner or lessee within two hundred (200) feet
of the site of the project, use or action;
3. Any publicly funded organization representing no less
than twenty-five (25) members; or
4. No less than twenty-five (25) members of the public
who can demonstrate the decision being appealed impacts the public health,
safety, or environmental welfare.
26.0218 Motion for reconsideration and special land
use permits.
A. Motion for reconsideration
1. No appeal of a decision of the Board shall be allowed
unless a motion for reconsideration is filed with the Board within ten (10)
days of the Board decision being moved for reconsideration. Motions for reconsideration shall be heard by
the Board at a regularly scheduled meeting or special meeting held for purpose
of hearing the motion no less than ten (10) days and no more than thirty (30)
days after the motion for reconsideration is filed. The moving party and any party who has filed
written comments on the matter to be heard shall be given no less than seven
(7) days notice of the hearing.
2. The motion for reconsideration shall contain following
information:
a. Name, address and telephone number of the moving party
and basis for standing as set forth in the provisions of this chapter;
b. A description of the decision being moved for
reconsideration; and
c. A written statement of the factual or legal basis for
the motion, including such new evidence as may be proffered.
3. The Board shall review the entire record of the matter
moved for reconsideration, any new evidence submitted and arguments made, and
rule on the motion de novo.
4. The Board, by majority vote, may grant or deny a
motion for reconsideration, except that any decision to amend or overturn a
land use permit decision requires a unanimous vote and shall contain written
findings or fact and conclusions of law.
B. Special land use permits
1. A special land use permit to conduct acts prohibited
by the provisions of this chapter may be requested by petition. An applicant may seek a special land use
permit under the following procedures:
a. The applicant shall submit with the motion for
reconsideration a petition for a special land use permit to the Director. The petition shall state facts sufficient to
establish conformity with the special land use permit requirements listed
below. The petition shall include all
information required for a major project, all proposed actions to prevent
adverse effects, all proposed actions to mitigate adverse effects or restore
the site, and a statement indicating why the proposed action is necessary at
the site in the manner proposed.
b. The Board may grant, by unanimous vote of the entire
Board, a special land use permit, if the applicant demonstrates that:
(1) literal
enforcement of the applicable provisions of the Act and the provisions of this
chapter will cause the applicant undue hardship, excluding economic hardship;
and
(2) such
hardship results from conditions peculiar to the applicant’s property; and
(3) such
conditions could not reasonably have been anticipated by the American Samoa
Coastal Management Program when the provisions of this chapter were adopted;
and
(4) the
applicant’s plan for the proposed action minimizes any disturbance to the site
and any affected area or neighboring property and demonstrates that all
reasonable steps will be taken to restore and mitigate any adverse effects; and
(5) no other
feasible alternative site exist; and
(6) the
applicant agrees in writing to abide by the plan submitted under penalty of the
total cost to restore the site to its existing conditions; and provided further
that
(7) the land
use permit application shall not be for an after-the-fact project, use or
activity.
2. A petition for a special land use permit shall be
reviewed and considered by the Board pursuant to the same procedures applicable
to a major project, except that a public hearing shall be held, pursuant to the
same notice requirements as for a public hearing on a major project.
a. If a special land use permit is granted by the Board,
within thirty (30) days following the date of the decision, notice of same
shall be published once a week for two (2) consecutive weeks in a newspaper of
general circulation in the Territory which will provide the public an
opportunity to appeal.
b. The Board’s denial of a special land use permit is
final, the special land use permit applicant has no appeal rights.
3. Nothing herein shall be interpreted to exempt a
special land use permit from the provisions of this chapter protecting Special
Management Areas and wetlands.
26.0219 Appeals
A. An appeal of the Board’s decision on the motion for
reconsideration shall be filed within ten (10) days of the Board’s decision,
provided that such appeal is submitted in writing to the Director and contains
the information required for a motion for reconsideration.
B. Within twenty (20) days of receipt of the appeal the
Director shall submit the appeal to an administrative law judge. The administrative law judge shall consider
the case on the record and arguments of the parties and thereafter submit
written findings of fact and conclusions of law.
C. The administrative law judge shall adopt findings
based on the entire record, which shall be reviewable in the High Court of
American Samoa in accordance with ASCA §§ 4.1000 et. seq. the
26.0220 Standards and criteria for review.
A. As a requirement for approval, all projects shall
satisfy or be conditioned to satisfy the following criteria:
1. The Project Notification and Review System shall be
sensitive to the fa’aSamoa which means the
traditional Samoan way of life, including but not limited to:
a. recognizing the village council authority in regards
to maintaining harmony and welfare of the community; and
b. considering the village mitigation ordinances, village
wetland resolutions or other applicable policies approved by the village
council.
2. The proposed project shall not cause or threaten a
substantial, or potentially substantial, adverse impact in or upon coastal
resources.
a. Adverse impact means an alteration or the sum of
alternations which would impair the long-term function, stability, or quality
of an ecosystem or human community; which curtail the range of beneficial uses
of the natural and cultural environment; which are contrary to territorial
environmental laws or provisions of this chapter; or which adversely affect the
economic, health, safety or social welfare of a community or the
Territory.
b. Adverse impact includes, but is not limited to:
(1) alteration
of chemical or physical properties of coastal or fresh waters so that they no
longer provide a suitable habitat for natural communities;
(2)
accumulation of toxins, carcinogens, or pathogens which threaten the
welfare of humans or aquatic or terrestrial organisms;
(3) disruption
of the ecological balances in coastal or fresh waters upon which natural
biological communities depend;
(4) disruption
or burial of marine or stream bottom communities;
(5)
introduction of man-made substances foreign to the terrestrial or marine
environment;
(6) disruption
of archaeological/cultural/historic resources, properties of sites;
(7) disruption
of agricultural, fishing activities or recreational opportunities; and
(8) disruption
of the natural protective and beneficial functions of coastal resources.
3. The proposed project shall be compatible with existing
adjacent uses and adopted plans;
4. That no alternative site exists for the proposed
project and that no alternative construction methods exist which could avoid or
lessen any adverse impacts to coastal resources;
5. The proposed project shall not cause an excessive
demand on existing facilities and services.
B. The following standards of the Board shall be met for
approval of a land use permit, provided that due deference shall be given to
the Board member with jurisdiction of specific criteria and that the project,
use or activity is consistent with the provisions of this chapter and the
sections on Special Management Areas, wetlands, and coastal hazards:
1. Archaeological/cultural/historic resources
2. Commerical agricultural development
3. Major facility siting
4. Marine resources, reef, and fisheries protection and
development
5. Recreation and public access
6. Water and air quality
7. Unique areas
C. Archaeological/cultural/historic resources.
1. The significant archaeological/cultural/historic
resources of the Territory shall be protected and preserved.
a. Archaeological/cultural/historic resources means those
sites, structures, and artifacts which possess material evidence of human life
and culture of the prehistoric and historic past, or which have a relationship,
including legendary, to events or conditions of the human past.
b. Protection and preservation shall be accomplished by
the following procedures, provided that any federal undertaking as defined in
the National Historic Preservation Act of 1966, as amended, 16 USC 470, et.
seq., shall comply with section 106 of the Act.
(1) For
projects over $250,000, the applicant is responsible for ensuring that the
section 106 process is carried out.
(2) For
projects under $250,000 dollars the Board will assume responsibility for
identification, evaluation, assessment and mitigation. In this case the applicant will allow the
Board access to the project area when necessary to carry out these
procedures.
2. All archaeological/cultural/historic resources within
the project, use or activity area shall be identified and evaluated for significance
by a trained cultural resource specialist.
a. A trained cultural resource specialist includes an
archaeologist; historian, or anthropologist who shall possess at least a
masters of arts in their field and have one year of supervisory experience in their
field.
b. The identification and evaluation shall be documented
in a report following the American Samoa Historic Preservation Office
guidelines. The report shall be
submitted to the Board for review with a cover letter signed by the
applicant.
3. An archaeological/cultural/historic resource is
significant if the resource is:
a. at least fifty (50) years old, possesses historic
integrity, and
b. is associated with events that have made a significant
contribution to the broad patterns of Samoan history; or
c. is associated with the lives of persons significant in
Samoan past; or
d. embodies the distinctive characteristics of a type,
period, or method of construction, or that represents the work of a master, or
that possess high artistic values, or that represent a significant and
distinguishable entity whose components may lack individual distinction; or
e. has yielded, or may be likely to yield, information
important in prehistory or history.
4. If the archaeological/cultural/historic resource is
significant, an assessment shall be made as to whether the project may affect
the historic resource. If the project
may affect the historic resources, an assessment shall be made as to whether
that effect will be adverse.
a. A project has an effect on an archaeological/cultural/historic
resource when the project, use or activity may alter characteristics of the
resource that qualify the resource as significant.
b. A project, use or activity is considered to have an
adverse effect when the effect on an archaeological/cultural/historic resource
may diminish the integrity of a location, design, settling, materials,
workmanship, feeling, or association of a resource. Adverse effects on archaeological/cultural
historic resources include, but are not limited to:
(1) Physical
destruction, damage, or alteration of all or part of the resource.
(2) Isolation
of the resource from or alteration of the character of the property’s setting
when that character contributes to the significance of the resource.
(3)
Introduction of visual, audible, or atmosphere elements that are out of
character with the property or alter its setting.
(4) Neglect of
a property resulting in its deterioration or destruction.
c. The assessment shall be documented in a letter report
to the Board prepared by a cultural resource specialist and signed by the
applicant. The letter report shall make
and justify one of the following determinations:
(1) No effect;
or
(2) No adverse
effect (there will be an effect, but not an adverse one, e.g. repairing a roof
on a historic structure with historically accurate materials and not altering
the roof line); or
(3) Adverse
effect.
5. If the effect on the historic resource may be adverse,
mitigation shall be conducted by the applicant.
a. The applicant, in consultation with the Board, shall
enter into a mitigation agreement that determines what mitigation shall occur.
b. Mitigation may include, but is not limited to:
(1) Avoidance of the historic property.
(2) Monitoring with data recovery.
(3) Data recovery.
(4) Museum displays related to the historic property
adversely affected.
(5) Educational videos related to the historic property
adversely affected.
(6) Research projects related to the historic property
adversely affected.
6. If the effect will be adverse and no mitigation
agreement can be reached, the Board may deny a permit to protect the historic
resource.
7. The Board shall not grant a land use permit to an
applicant who, with intent to avoid the requirements of this section, has
intentionally adversely affected an archaeological/cultural/historic resource
to which the land use permit would relate, or having legal power to prevent it,
allowed such an adverse effect to occur; provided that the Board, after
consultation with the applicant, determines that circumstances justify granting
a land use permit despite the adverse effect created or permitted by the
applicant and the applicant enters into a mitigation agreement with the
Board.
D. Commercial agricultural development
1. Agricultural development shall be promoted in a manner
consistent with sound agricultural practices which means the use of methods and
technologies that maximize the potential for the long-term maintenance of soil
fertility, and which minimize the escape of soil particles or agricultural
chemicals to receiving waters.
2. Commercial and subsistence agriculture shall be
encouraged on lands suitable for cultivation.
Agricultural action shall be accompanied by best management practices
designed to protect land and water resources and maintain crop yields, which
include:
a. cultivation on suitable slopes;
b. use of adequate ground cover to prevent soil erosion;
c. proper use of pesticides, herbicides, and fertilizers;
d. techniques to maintain soil fertility; e.g. fallow
periods; and
e. techniques to reduce non-point source pollution and
protect water quality.
E. Major facility siting.
1. Major facility means, but is not limited to,
construction or major repair of the following:
a. water supply systems;
b. water or sewage treatment plants;
c. solid-waste disposal areas and facilities;
d. power production, distribution and transmission
facilities;
e. roads, highways, seaports, airports, aids to
navigation;
f. major recreation areas; and
g. national defense installations.
2. Major facilities shall be sited and designed to
minimize adverse environmental and social impacts and promote orderly and
efficient economic development.
a. Major facilities not dependent on a waterfront
location shall be located elsewhere, unless no feasible alternative sites
exist;
b. All efforts shall be made so that water-dependent
major facilities are accommodated through planning.
3. The Territory shall recognize identified regional
benefits and national interests in the siting of
major facilities and shall adequately consider them in major facility siting decisions.
4. A public hearing as provided by this chapter shall be
required for all major facilities.
F. Marine resources, reef, and fisheries protection and
development
1. Living marine resources and their habitats shall be
protected from over harvesting or degradation, in accordance with ASCA §§
24.0300 et. seq., the Department of Marine and Wildlife Resources Act.
2. Coral reefs shall be protected and restored.
a. Coral means any living aquatic organism of the
subphylum cnidaria that are capable of secreting hard
skeletal parts or can incorporate stony secretions within or around their
tissues, including, but not limited to, hermatiyic
corals, black coral, organpipe corals, fire corals,
and lace corals.
b. Coral reef means a structure which may or may not be
adjacent to the shoreline, formed and bounded by the gradual deposition and
calcareous secretions of coralline materials.
c. Coral reefs and other submerged lands shall not be dredged,
filled, or otherwise altered or channeled unless it can be demonstrated that
there is a public need, there are no feasible, environmentally preferable
alternatives, and unless measures are taken to minimize adverse impacts.
d. Coral reefs shall be protected from sedimentations,
over fishing, runoff, and the impacts resulting directly and indirectly from
other activities to the maximum extent feasible. Degraded reefs shall be restored wherever
feasible.
3. Fisheries development shall be promoted in a manner
consistent with sound fisheries management.
a. Shoreline areas suitable and necessary for the support
of fishery development shall be reserved for such use.
b. Fisheries development shall be guided by a fisheries
management program which conserves stocks, protects marine habitats, and
maintains sustained yields.
4. Permissible uses for marine resources and
habitats:
a. maintenance of highest levels of water quality;
b. non-structural projects preserving fish and wildlife
habitat, and
c. creation of underwater preserves.
5. Conditional use for marine resources and habitats:
Dredging of low or moderately productive corals and reefs associated
with permitted uses and activities for which there is a demonstrated public
need.
6. Prohibited uses for marine resources and
habitats:
a. destruction of reefs and corals not associated with
permitted projects; and
b. taking corals for other than scientific study.
7.
a. The irreplaceable marine and coastal resources of
b. Land use permit applications for sites adjacent to Ofu Territorial Marine Park and Fagatele
Bay National Marine Sanctuary, shall be rigorously reviewed to ensure minimum
adverse impact to marine and coastal resources, including water-quality,
habitat, fish and wildlife, and recreational opportunities.
G. Recreation and public access
1. Recreation opportunities and shorefront public access
shall be improved and increased for the public.
a. The acquisition, siting,
development, and maintenance of varied types of recreation facilities that are
compatible with their surrounding landscape and land uses, and which serve the
recreation and shorefornt public access needs of
villages shall be promoted.
b. Acquisition and/or use agreements and minimal
development of passive recreation sites such as marine and wildlife
conservation areas, scenic overlooks, trails, parks, and historic sites shall
be promoted.
1. Public access to and along the ocean shall be
maintained, improved and increased in accordance with ASCA §§ 18.0100 et. seq.,
the Department of Parks and Recreation Act., including:
a. shorefront areas suitable for recreation use shall be
reserved for such use and physical access to these areas shall be provided where
feasible; and
b. visual access to the ocean from the road parallel to
and near the shoreline shall be maintained where feasible.
2. Public lands shall be managed to maintain physical and
visual public access. Where public
access must be eliminated because of security or other reasons, similar access
shall be created as near as practical to the curtailed access.
H. Water and air quality
1. Water quality shall be maintained.
a. Territorial water quality standards shall be the
standards of the American Samoa Coastal Management Program and land use permit
applications shall adhere to those standards, in accordance with ASCA §§
24.0100 et. seq., the Environmental Quality Act.
b. Consistent with Territorial water quality standards,
degraded water quality shall be restored to acceptable levels and potential
threats to water quality shall be prevented where feasible.
c. Non-point source pollution shall be controlled through
implementation of best management practices.
2. Safe drinking water shall be protected and
maintained.
a. Territorial safe drinking water standards shall be the
standards of the American Samoa Coastal Management Program and land use permit
applications shall adhere to those standards, in accordance with ASCA §§
24.0100 et. seq., the Environmental Quality Act.
b. Drinking water sources, including aquifer recharge
areas, above and below ground, shall be protected from contamination due to
sedimentation, saltwater intrusion, or other sources of pollution.
c. Drinking water systems shall be improved to protect
public health and welfare.
3. High standards of air quality shall be
maintained.
a. Territorial air quality standards shall be the
standards of the American Samoa Coastal Management Program and land use permit
applications shall adhere to those standards, in accordance with ASCA §§
24.0100 et. seq., the Environmental Quality Act.
b. Consistent with Territorial air quality standards,
degraded air quality shall be restored to acceptable levels and potential
threats to air quality shall be prevented when feasible.
I. Unique Areas
1. Unique areas and their values shall be protected from
adverse impacts. Development in areas
adjacent to unique areas shall be rigorously reviewed to prevent impacts that
would significantly degrade such areas.
2. Critical habitats shall be protected, conserved and
managed in the Territory.
a. Critical habitat means a land or water area where
sustaining the natural characteristics is important or essential to the
productivity of plant and animal species, especially those that are threatened
or endangered.
b. Threatened or endangered species means a species
listed by the Department of Marine and Wildlife Resources as being threatened,
or endangered, in accordance with ASCA §§ 24.0700 et. seq., the Endangered
Species Act and ASCA §§ 24.2300 et. seq., the Conservation of Flying Foxes
Act.
c. No taking of endangered or threatened species shall be
allowed.
26.0221 Special Management Areas
A. Special Management Areas mean those areas duly
designated by the Act or the provisions of this chapter that possess unique and
irreplaceable habitat, products or materials, offer beneficial functions or
affect the cultural values or quality of life significant to the general
population of the Territory and fa’aSamoa.
B. Designated Special Management Areas
1. The following boundaries delineate the Special
Management Areas of American Samoa:
a. Pago Pago Harbor Special
Management Area is delineated by a line drawn from Goat Island Point to the
jetty at Leloaloa and includes all land and water
resources on the sami side of the American Samoa
Highway 001 paralleling the shoreline around the
b. The Leone Pala Lagoon is delineated by a line drawn
parallel with the shoreline at the ocean terminus of the Leafu
stream, and adjacent wetlands as delineated by the provisions of this chapter;
and
c. The Nu’uuli Pala Lagoon is
delineated by a line drawn from Avatele Point, the
eastern most point of the airport, to Mulinu’u Point,
the nearest part of Coconut Point, and includes all water resources of the
lagoon, plus adjacent wetlands as delineated by the provisions of this
chapter.
1. Boundary maps, at a minimum of 1”=2’ scale, for all
wetland areas included as Special Management Areas shall be maintained for public
inspection at the Department of Commerce.
2. Any proposed project, use or action in a Special
Management Area shall be deemed a major project, and all proposed projects,
uses, or activities in any Special Management Area, other than the Pago Pago Harbor Special Management Area, shall require a public
hearing as provided by this chapter.
C. Policy for Special Management Areas
1. The functions, values and benefits of Special
Management Areas shall be protected so that their benefits can be enjoyed by
present and future generations of the Territory.
2. Actions that degrade, limit, or eliminate Special
Management Areas functions, values, and benefits to the public shall be
prohibited.
3. Lagoon, and reef areas. Any project proposed for location within a
designated Special Management Area which also is characterized as a lagoon or
reef area shall comply with the following standards:
a. subsistence usage of coastal areas and resources shall
be insured;
b. living marine resources, particularly fishery
resources, shall be maintained for optimum sustainable yields;
c. adverse impacts to reefs and corals shall be
prevented;
d. lagoon and reef areas shall maintain or enhance
subsistence, commercial and sport fisheries;
e. lagoon and reef areas shall be protected to assure the
maintenance of natural water flows, natural circulation patterns, natural
nutrient and oxygen levels and to avoid the discharge of toxic wastes, sewage,
petroleum products, siltation and destruction of productive habitat;
f. areas and objects of historic and cultural
significance shall be preserved and maintained; and
g. underwater preservation areas shall be
designated.
4. Wetland areas.
Any project proposed for location within a designated Special Management
Area and a wetland shall be evaluated to determine its compatibility with this
section and the wetlands section of this chapter.
5. Shoreline Areas.
Any project proposed for location within a designated Special Management
Area and a shoreline area shall be evaluated to determine its compatibility
with this section, the wetlands section of this chapter, and with the following
standards:
a. the impact of on shore activities upon wildlife,
marine or aesthetic resources shall be minimized;
b. the effects of shoreline development on natural beach
processes shall be minimized;
c. removal of hazardous debris from beaches and coastal
areas shall be required; and
d. where possible, public landholding along the shore
shall be maintained and increased, for the purpose of access and hazard
mitigation; and in addition to deciding whether the proposed project is
consistent with the above standards, Board members shall consider the following
in their review of coastal land permit applications:
(1) whether the
proposed project is water-dependent or water-related in nature;
(2) whether the
proposed project is to facilitate or enhance coastal recreational, subsistence,
or cultural opportunities (i.e. docking, fishing, swimming, picnicking,
navigation devices);
(3) whether the
existing land use including the existence of roadways, has irreversibly
committed the area to uses compatible with the proposed project, particularly
water-oriented uses, and provided that the proposed project does not create
cumulative and secondary adverse impacts;
(4) whether the
proposed project is single-family dwelling in an existing residential area and
would occur on private property owned by the same owner as of the effective
date of the program, of which all or a significant portion is located in the
Special Management Areas or no reasonable alternative is open to the property
owner to trade land, relocate or sell to the government;
(5) whether the
proposed project would be safely located on a rocky shoreline and would cause
adverse impacts to wildlife, marine or scenic resources;
(6) whether the
proposed project is designated to prevent or mitigate shoreline erosion; and
(7) whether the
proposed project would be more appropriately located in the port and industrial
area.
6. Notwithstanding any other provisions of this chapter,
any proposed project, use or action in the Pago Pago
Harbor Special Management Area shall be evaluated in connection with the
following objectives and priorities of use:
a. The
(1)
the value as a working port and safe harbor; and
(2)
to protect the natural resources and water quality;
b. Priorities of use:
(1)
Water-dependent uses and activities shall have highest priority.
(2)
Water-related uses and activities shall have second priority.
(3) Uses and
activities which are neither water-dependent nor water-related, but which are
compatible with water-dependent and water-related uses and activities or are
for recreational activities or a public use shall receive third priority.
(4) All other
uses and activities shall have lowest priority and will normally be
denied.
c. Any project proposed for location as a port or
industrial project in the Pago Pago Harbor Special
Management Area shall comply with the following standards:
(1) siting of port and industrial development shall comply with
the long-term economic and social goals of the Territory;
(2) development
proposals shall be considered from the perspective of port-related
opportunities and constraints which are applicable to the Territory;
(3) the limited
availability of the port and industrial resources shall be recognized in making
land use allocation decisions;
(4) development
shall ensure respect for the Territory’s inherent natural beauty;
(5) shoreline
locations shall be limited to water-dependent and water-related projects;
(6) the amount
of shoreline frontage utilized by any project, regardless of the extent to
which the project may be water-dependent, shall be minimized to the greatest
extent practicable; and
(7) to the
maximum extent practicable, petroleum based coastal energy facilities shall be
located within the port and industrial area.
D. Procedures to establish a Special Management Area
1. Pursuant to the Act, the Board is authorized to
recommend to the Governor areas of the Territory to be designated as Special
Management Areas, and authorized to propose modifications to the established
boundary of any existing Special Management Area.
2. The following procedures shall apply to nominations
for designation or modification of the boundary of a Special Management Area:
a. Proposals. Any
territorial agency, any public funded organization representing no less than
twenty-five (25) members, or no less than twenty-five (25) members of the
public, may propose to the Board the designation or modification of a Special
Management Area.
b. Supporting documentation. Proposals for the designation or modification
of a Special Management Area shall include detailed documentation supporting
the proposal. The documentation shall
address the criteria for consideration set forth in this section, and may
include other information pertinent to the area proposed for designation or
modification.
c. Public Notice.
Within thirty (30) days of receipt by the Board of the proposal for
designation or modification, the Board shall cause to be published in a
newspaper of general circulation, at least once a week for three (3)
consecutive weeks, public notice of the proposed designation or
nomination. The Board shall further
cause such public notice to be personally served upon the Secretary of Samoan
Affairs and the pulenu’u of each village adjacent to
a proposed Special Management Area. Such
notice shall describe the area involved, advise the public that a record of the
proposal is available for inspection, that comments by the public will be
accepted for a period of forty-five (45) days from date of first publication of
the notice, that comments received will be considered by the Board in reviewing
the proposal, and advising the public of the places and dates of no less than
two (2) public hearings which shall be held in order to consider the
proposal.
d. Technical findings.
On all proposals to designate or modify a Special Management Area,
technical findings on the proposal and its potential impacts shall be prepared
by each Board member agency. The Board
member agency shall determine the appropriateness of the proposal to that agency’s
respective jurisdiction and permitting authority, and may further comment on
the appropriateness of the proposal under the Act and the provisions of this
chapter. The technical findings shall be
prepared and made available to the public prior to the public hearings, and
shall be considered by the Board in making its decision.
e. Public hearings.
Within forty-five (45) days of the receipt of a proposal for designation
or modification of the boundary of a Special Management Area, no less than two
public hearings shall be held to consider the proposal. One public hearing shall be held at a place
convenient to the general public. A
second public hearing shall be held at or as near as reasonably practicable to
the area affected by the proposal.
f. The Project Notification and Review System decisions
to nominate. Within thirty (30) days of
the closure of the comment period, upon review of the entire record of the
proposal for designation or modification of a Special Management Area,
including technical findings, supporting documentation, and public comments,
the Board shall determine whether to nominate the proposal to the
Governor. The Board may, in accepting a
proposal for nomination, make minor amendments to the proposal; provided that
any amendment which increases the size of the affected area, or alters the
nature of the designation, shall require further public hearings in accordance
with this section. A decision by the
Board to nominate, nominate with amendments, or deny the proposal shall be accompanied
by written findings of fact and conclusions of law.
g. Upon a decision by the Board to nominate to the
Governor a proposal to designate or modify a Special Management Area, the
Manager shall certify the nomination as being in compliance, or not in
compliance, with the Act and the provisions of this chapter. If in compliance, the Manager shall transmit
the nomination to the Governor for approval.
The nomination shall be either approved, or disapproved, by the Governor
within thirty (30) days of receipt of the nomination. The Governor’s decision to approve, or
disapprove, is final.
E. Criteria for designation or modification of a Special
Management Area
1. In reviewing a proposal for designation or
modification of a Special Management Area, the Board shall consider the
following natural resource criteria for special management status:
a. areas of unique, scarce, fragile, or vulnerable
natural habitat or areas of historical significance, cultural value, or scenic
importance (including resources on or eligible for the National Register of
Historic Places);
b. areas of high natural productivity or critical habitat
for living resources, including threatened or endangered species;
c. areas of outstanding recreational value or potential;
d. areas which, if development were permitted, might be
subject to significant hazard due to storms, landslides, floods, erosion,
settlement, or salt water intrusion.
e. areas needed to protect, maintain, or replenish
coastal lands or resources, including coastal floodplain, aquifers and their
recharge areas, estuaries, coral reefs and beaches; or
f. areas needed for the preservation or restoration of
coastal resources due to the value of those resources for conservation,
recreational, ecological, or aesthetic purposes.
2. The following commercial criteria shall also be considered
for special management status:
a. areas where developments and facilities are dependent
either upon the utilization of, or access to, coastal waters or of geographic
significance for industrial or commercial development;
b. areas of urban concentration where shoreline
utilization and water uses are highly competitive;
26.0222 Wetlands
A. Wetlands means those areas that are inundated or
saturated by surface or ground water at a frequency and duration sufficient to
support, and under normal circumstances do support, a prevalence of vegetation
typically and adapted for life in saturated soil conditions.
1. The phrase “under normal circumstances” which, as used
in the definition of wetlands, means situations in which the vegetation,
hydrology and soils have not been substantially altered by human activity.
2. Wetlands include but are not limited to pala, cultivated and non-cultivated marshes, mangroves,
streams, springs, swamps, aquifer recharge areas, floodplains, streams,
watersheds, and nearshore waters.
a. Watershed means a distinct area bordered by features
of highest continuous elevations that is usually accepted by surface drainage
leading to the ocean.
b. Stream means a natural pathway for surface water
drainage or runoff, often intermittent in flow, and usually characterized by
unique riparian plant and animal communities.
c. Nearshore waters means those waters within the territorial
sea.
d. Mangroves means the characteristic littoral plant
________ of tropical and subtropical sheltered coastlines. Generally mangroves are trees and bushes
growing up to the high tide level along coastlines or into stream mouths. Mangrove root systems are regularly inundated
with saline water, thought freshwater surface runoff and flooding may result in
brackish conditions.
e. Aquifer recharge means a distinct area from which
surface water runoff is concentrated and enters the earth where the water is
then stored in a stratum of permeable rock, and or gravel, and flows freely
through the intervening spaces of the rock.
When the underlying rock is impermeable an aquifer acts as a groundwater
reservoir which supplies water for wells and springs.
3. Adjacent wetlands are wetlands separated from other
waters of the
4. The following Samoan
terminology applies to wetlands:
a. Pala approximately translates to mangrove swamp;
b. Taufusi approximately translates to taro freshwater march;
c. Laueleele susu approximately
translates to land that is wet;
B. Delineation of Wetlands.
1. Delineation by the American Samoa Coastal Management
Program shall use wetlands delineation techniques established in the 1987
Federal Manual for Identifying and Delineating Jurisdictional Wetlands, or
revised standards as adopted.
2. Wetland delineation shall be determined with evidence
of a minimum of three positive indicators, at least one from each of the three
parameters of hydrology, soils, and vegetation.
a. Under normal circumstances all three must be found
before a positive determination can be made.
b. In atypical situations, evidence may be developed form
historical data, recent existing data and observations made in the field.
C. Policy on wetlands
1. Wetlands areas shall be protected from significant
disruption of their physical, chemical, and biological characteristics and
values. Only uses dependent upon such
areas may be permitted.
2. Wetlands shall be preserved, protected, conserved, and
managed in the Territory.
a. Despoliation and destruction of wetlands shall be
prevented by insuring that development adjacent to wetlands areas shall be
designed and sited to prevent impact that would significantly degrade such
areas;
b. The present and potential value of wetlands shall be
protected for food production, wildlife habitat, storm and flood control, water
quality, recreation, education, and research; and
c. The use and development of wetlands areas shall be
regulated in order to secure the natural benefits of wetlands, consistent with
the general welfare of the Territory, including:
(1) adequate
water flow, nutrients and oxygen levels shall be ensured;
(2) the natural
ecological and hydrological processes and mangrove areas shall be preserved;
(3) critical
habitat that is in a wetlands shall be maintained and, where possible, enhanced
so as to increase the potential for survival of rare and endangered flora and
fauna;
(4) public
landholding in, and adjacent to, wetlands areas shall be maintained and, to the
extent possible, increased, for the purpose of access and/or hazard mitigation;
and
(5) wetlands
resources shall be utilized for appropriate agriculture, recreation, education,
public open space and other compatible uses which would not degrade productivity.
3. A policy of “no net loss” of wetlands in the Territory
is established that includes no net loss of wetlands value and function, as
well as, actual acreage loss. Providing
wetlands conservation in order to achieve no net loss include the protection of
the following values:
a. flood and storm control by the hydrological absorption
and storage capacity of freshwater wetlands;
b. wildlife habitat by providing breeding, nestling, and
feeding grounds and cover for the many forms of wildlife, wildfowl and
shorebirds, including migratory wildfowl and rare species such as the
Australian gray duck;
c. protection of subsurface water resources and
provisions for valuable watersheds and recharging groundwater supplies;
d. recreation areas by providing areas for hunting,
fishing, boating, hiking, bird watching, photography, swimming;
e. erosion control by serving as sedimentation areas and
filtering basins, absorbing silt and organic matter thereby protecting
channels, and coral reefs;
f. educational and scientific research opportunities;
g. sources of nutrients in freshwater and brackish water
food cycles, nursery and feeding grounds, and sanctuaries for fish species; and
h. agricultural uses such as taro production and harvest
of natural wetlands products.
D. Wetlands jurisdictional limits.
1. The jurisdictional limits of authority of the American
Samoa Coastal Management Program with regard to wetlands is determined by the
Submerged and Tidal Lands Act of 1974, 48 USC 1705(a).
a. The
b. Subject to valid existing rights, all right, title,
and interest of the United States in lands permanently or periodically covered
by tidal waters up to but not above the line of mean high tide and seaward to a
line three geographical miles distant from the coastline of American Samoa, as
heretofore or hereafter modified by accretion, erosion, and reliction,
and in artificially made, filled in, or reclaimed lands which were formerly
permanently or periodically covered by tidal waters, were conveyed to the government
of American Samoa, to be administered in trust for the people thereof.
2. Waters of the
a. all waters which are currently used, or were used in
the past, or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide; and
b. all other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation or destruction of which could affect interstate or
foreign commerce including such waters:
(1) which are
or could be used by interstate or foreign travelers for recreational or other
purposes;
(2) from which
fish or shellfish are or could be taken and sold in interstate or foreign
commerce; or
(3) which are
used or could be used for industrial purposes by industries in interstate
commerce.
c. all impoundments of waters otherwise defined as waters
of the
d. tributaries of waters identified in paragraphs (2)(a)
thru (d) of this section.
3. Limits of jurisdiction of the waters of the
a.
(1) A baseline
is a continuous line which encircles an island or atoll and
(2) A baseline
is measured as follows:
(a)
The baseline of an island or portion of an island lacking a barrier
reef, fringing reef, or other reef system is seaward from the ordinary high
water mark; or
(b)
The baseline of an atoll or island or portion of an island having a
barrier reef, fringing reef, or other reef system, is the seaward edge of the
reef system, i.e. those outermost elevations of the reef which are above water
at low tide.
b. Tidal Waters of the
(1) Tidal
waters means those waters that rise and fall in a predictable and measurable
rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a predictable rhythm
due to masking by hydrologic, wind or other effects.
(2) The
landward limits of jurisdiction in tidal waters:
(a)
extends to the high tide line which means the line of intersection of
the land with the water’s surface at high tide.
The high tide line may be determined in the absence of actual data by a
line along the shore that consists of a more or less continuous deposit of fine
shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gauges, or other
suitable means, or
(b)
when adjacent non-tidal waters of the
c. Non-tidal waters of the
(1) in the
absence of adjacent wetlands, the jurisdiction extends to the ordinary high
water mark which means that line on the shore established by the fluctuations
of water and indicated by physical characteristics such as a clear, natural
line impressed on the bank, shelving,
changes in the character of soil, destruction of terrestrial vegetation, or
other appropriate means that consider the characteristics of the surrounding
areas.
(2) when
adjacent wetlands are present, the jurisdiction extends beyond the ordinary high
water mark to the limit of the adjacent wetlands; or
(3) when the
waters of the
E. Wetland buffer and prohibited activity.
1. Buffer zone means a set back area in which development
of any kind is prohibited.
2. A buffer zone around the wetland delineated boundary,
including streams, shall be established in the following manner:
a. A twenty-five (25) foot buffer zone shall be established
between a wetland delineated boundary and non-commercial or non-industrial
development.
b. A fifty (50) foot buffer zone shall be established
between a wetland delineated boundary and commercial or industrial
development.
3. Human alteration of sand dunes and mangroves stands is
prohibited within VE and V zones of American Samoa Federal Insurance Rate Maps,
which would increase potential flood damage.
F. Wetlands regulated activities; permitted and
prohibited projects, uses or activities; and violations.
1. Regulated activities includes:
a. Village ordinances adopted by the village councils,
including but not limited to:
(1) The
Resolution by the Leone Village Council, a resolution to protect and preserve
the Leone Pala, including mangroves and streams, ratified on
(2) The Nu’uuli Wetland Agreement, a declaration to protect and
preserve the Nu’uuli Pala Lagoon, ratified on
(3) The Ofu (Vaoto) Marsh Resolution, a
resolution recognizing the valuable natural resources of the Ofu wetland and an agreement to preserve and protect the Ofu Marsh, ratified on
b. Altering wetlands, which includes, but is not limited
to:
(1) The act of
placing fill.
(2) The
filling, dumping, or depositing of any soil, stones, sand, gravel, mud,
aggregate of any kind or garbage, either directly or indirectly, on or in any
coastal wetlands;
(3) The
dredging, excavating or removal of soil, mud, sand, gravel, flora, fauna or
aggregate of any kind form any coastal wetlands;
(4) killing or
materially damaging any flora or fauna on or in any coastal wetland; and
(5) the
erection on coastal wetlands of structure which materially affect the ebb and
flow of the tide.
2. Permissible uses of wetlands:
a. preservation and enhancement of wetlands; and
b. preservation of wildlife, primary productivity,
conservation areas and historical properties in both wetlands and unique
areas.
3. Conditional use wetlands:
a. Projects for which there is demonstrated public need
which cause a minimal amount of damage to the wetlands and other coastal
resources.
b. Any such use shall take into consideration the no net
loss policies enumerated in this section.
c. Any such use shall include “off-set” measures, which means
least-damaging practicable alternatives:
avoidance, minimization, and compensatory mitigation as determined by
the Board.
d. All projects, uses, or activities on condition that
any adverse impact to the wetland is compensated in kind, meaning that for
every acre adversely impacted a specific acreage shall be rehabilitated:
(1) creating
new wetlands at a minimum 1:1 ratio or restoration of former wetlands at a
minimum 1:1 ratio, and
(2)
rehabilitation of deteriorated wetlands at a minimum 1:2 ratio.
4. Prohibited uses of wetlands:
a. Land fill, dumping of solid waste, discharge of
pollutants, and clearing, grading or removal of natural vegetation or any other
activity or use not associated with a conditional use which limits or
eliminates beneficial functions or values of wetlands or unique areas; and
b. Adverse impact on natural drainage patterns, the
destruction of important habitat, and the discharge of toxic substances shall
be prohibited.
5. Violations
a. It shall be a violation of this section for any person
to fill, make deposits on, or in any fashion create or attempt to create,
artificial land, or augment or add to the natural shoreline of any coastal area
or wetland area or drain a wetland area without a land use permit or in
violation of a permit. This section
applies to principals, their agents, and contributors.
b. It shall be a violation of this section for any person
to fill, make deposits on, or in any fashion attempt to create artificial land,
or augment the area within the buffer area of a wetland. This includes alteration of the surface of
the land, disturbance of vegetation or alteration of the hydrology.
c. Any person who violates this section is guilty of a
class B misdemeanor and shall be subject to civil fines according to law.
26.0223 Coastal hazards
A. Coastal hazards policy
1. Coastal hazards means hazards to life and property
from flooding, tsunamis, landslides, slope, and shoreline erosion, storm surge,
and winds.
2. Life and property shall be protected from such coastal
hazards.
3. Projects, uses or activities in coastal hazards areas,
including floodplains, storm wave inundation areas, landslide hazard areas, and
erosion-prone areas shall normally be denied, unless:
a. there is a public need, including recreational; and
b. the development is located and designed to minimize
risks to public safety; and
c. is water-dependent or water-related, if adjacent to
the shoreline; and
d. is compatible with adjacent land uses; and
e. traditional Samoan uses; and
f. has no feasible, environmentally preferable,
alternative sites, provided that:
(1) individual
and/or communal family lands have been exhausted; and
(2) the
proposed project, use or activity does not pose adverse environmental
impact.
g. alterations of the natural shoreline, streams, and
hillsides are minimized; and
h. adverse effects on habitats, streams, and drainage are
minimized.
4. Projects, uses or activities permitted in areas prone
to flooding, landslides, and erosion shall meet the standards of the American
Samoa Floodplain Management Regulation.
a. Development in areas prone to flooding, landslides,
and erosion that will not require protection through dikes, dams, levees,
groins, seawalls, retaining walls, shoreline protection or other structures
shall be preferred over uses that require such protection.
b. Structures to protect existing development against
flooding, landslides, and erosion shall comply with the following
criteria:
(1) remedial
protective measures must avoid impacts on adjacent properties;
(2) there are
no feasible environmentally preferable alternatives;
(3) alterations
of the natural shoreline, streams, and hillsides are minimized.
B. Shoreline development policy
1. In the area measured two hundred (200) feet
horizontally inland from the mean high-tide mark, projects, uses or activities
shall normally be denied.
2. In villages with a ratified Village Mitigation
Ordinance, the minimum setback established in a Village Mitigation Ordinance
shall be imposed between the proposal project, use or activity and identified
coastal hazards lands.
a. Village mitigation ordinance means a village
regulatory instrument established collectively with a village council and the
American Samoa Coastal Management Program that sets forth village or municipal
mitigation policies for future village development which compliment and
supplement Village Regulations including the most feasible coastal hazards
setbacks specific to village geography.
b. Village Mitigation Ordinances have been developed and
ratified in the following villages of
(1) Eastern
District:
(a) Alofau, ratified on
(b)
(c) Aua, ratified on
(2) Western
District:
(a) Nua & Se’etaga, ratified
(b) Utulei & Gaiaivai, ratified
(c) Afao, ratified
(d) Amanave, ratified
(3) Manua District:
(a) Fitiuta, ratified
c.
C. Soil erosion policy.
1. All clearing, grading, or construction on slopes shall
use best management practices or avoid or minimize soil erosion, including but
not limited to:
a. conducting a soils survey and providing a geological
report of the affected project, use or activity;
b. minimizing on-site disturbance by utilizing careful
design and knowledge of soils, vegetation, and terrain and other available
techniques;
c. retaining earth slopes through use of retaining walls
and professionally designed slope stabilization techniques; and
d. controlling off-site movement of surface soils during
construction through use of silt fences, berms,
dikes, desilting ponds, ground netting, and other
temporary measures to be maintained throughout construction.
2. Development on steep slopes
a. Projects, uses or activities that develop slope areas
of grades zero to twenty percent (0-20%), outside of known landslide paths, and
having stable soils for the intended use shall generally be permitted.
b. Projects, uses or activities that develop slope areas
of grades twenty to forty percent (20-40%), outside of known landslide paths,
and having stable soils for the intended use may be conditionally
permitted.
c. Projects, uses or activities that develop slope areas
of grades greater than forty percent (40%), shall normally be denied; provided
that feasible environmentally preferable alternatives to the proposed action
exist.
3. Road building and construction activities that
severely alter land contours, are located in steep areas, or may otherwise
promote soil erosion shall be minimized and controlled to reduce or eliminate
soil erosion.
26.0224 Territorial environmental assessments
A. Procedures
1. Environmental assessment means a written evaluation to
determine whether an action may have a significant adverse impact on the
coastal zone.
2. Activities subject to these provisions. The Board shall require an environmental
assessment if:
a. any member or members of the Board with permitting or
regulatory jurisdiction over the application request(s) an environmental
assessment.
b. the Board finds a new or expanded source of pollutants
resulting in a potentially dangerous condition having a significant adverse
impact on the health, safety, and welfare of the public;
c. the Board finds a significant adverse impact to
critical habitat;
d. a project, use or activity is Federally funded;
e. a project, use or activity costs more than $250,000;
or
f. a petition signed by not less than twenty-five (25)
members of the public is submitted to the Board.
3. Scoping meetings for proposed actions. For land use permit applications subject to
this section, a scoping meeting of the Board may be requested by the land use
project applicant or by any Board member.
Scoping meetings may be held at a regular or special meeting of the
Board. Scoping sessions shall be held
for the purposes of identifying potential significant adverse impacts to
coastal resources which the project may cause and determining whether an
environmental assessment will be required for the particular application.
4. Contents of an environmental assessment. Persons proposing actions requiring an
environmental assessment shall prepare an environmental assessment of each
proposed action and state whether the anticipated impacts constitute a
significant adverse impact to coastal resources. An environmental assessment shall contain the
following information:
a. title and executive summary;
b. identification, qualifications and credentials of the
preparers and those consulted in preparing the assessment;
c. general description of the technical, economic,
social, and environmental characteristics of the project, including an
operational plan, if applicable, and all applicable drawings, maps and plans
necessary to understand the project;
d. summary description of the affected environment,
including a vicinity map and site plan;
e. identification and summary of potential adverse
impacts to coastal resources;
f. source of funding, if federal monies are being used
for the project, and any federal permits needed for which application has been
made;
g. determination of whether alternatives or mitigation
are feasible; and
h. findings and reasons supporting determination.
5. Determination of significant impact or finding of no
significant impact.
a. Board review of an environmental assessment. The applicant shall submit ten (10) copies of
the environmental assessment to the Manager for distribution to the Board and
public. At a regular or special meeting
called by the Board, the Board shall review the environmental assessment and
determine whether the proposed project meets the requirements of this
chapter. Where necessary, the Board
shall instruct the applicant to amend or furnish additional information
necessary for the Board to reach a decision of adequacy of the assessment.
b. Determination of significant impact or finding of no
significant impact. A determination
shall be made by the Board as to whether significant adverse impacts can
reasonably be expected to occur from the proposed action.
(1) If measures
have not been identified that will adequately avoid or mitigate the significant
impacts a determination of significant impact shall be issued and a mitigation
action plan shall be requested from the applicant.
(2) If no
significant impact is found, or if impacts can be adequately avoided or
mitigated, a finding of no significant impact shall be issued and considered in
determining whether a land use permit should be approved.
c. Decision-making Criteria
(1) In determining
whether an action may have a significant impact on coastal resources, the Board
shall consider whether, every phase of a proposed action, the expected
consequences, both primary and secondary, and the cumulative effects of the
action comply with the standards and criteria as provided by this chapter.
(2) In most
instances, an action shall receive a determination of significant impact on the
environment if the action:
(a)
Involves an irrevocable commitment to loss or destruction or alteration
of any natural or cultural resource;
(b)
Curtails the range of beneficial uses of the environment;
(c)
Conflicts with any of the Territory’s long-term environmental policies
or goals, statutes. Rules. Amendments, court decisions, or executive orders;
(d)
Affects public health or safety;
(e)
Adversely affects the economic or social welfare of the community or
Territory;
(f)
Causes cumulative or secondary impacts that increase costs to the
public, such as substantially increasing demands on public facilities;
(g)
Involves a substantial degradation of environmental quality;
(h)
Is individually limited but cumulatively has considerable effect upon
the environment or involves a commitment for larger actions;
(i) Affects a threatened or endangered species or
critical habitat;
(j)
Detrimentally affects air or water quality or ambient noise levels; or
(k)
Affects an environmentally sensitive area such as a floodplain,
erosion-prone area, geologically hazardous area (including landslide hazard
area), wetland, surface water or ground water, or coastal waters.
d. Documentation of review and decision; public comment
and notice. The Board shall document
review of an environmental assessment of a proposed action for future reference,
and shall make a determination of significant impact or a finding of no
significant impact in writing. The
actual determination shall be filed with the Manager and notice of availability
shall be published in a newspaper of general circulation in the Territory,
soliciting comments from other agencies and the general public. A comment period of thirty (30) days shall
follow the date of the first publication of the notice in a paper of general
circulation in the Territory and shall be cited in the notice. Associated documents pertaining to this
section or written public comments pertaining to these documents shall become
public documents in the applicants file.
6. Addressing a determination of significant impact: mitigation action plan.
a. If the Board issues a determination of significant
impact, the applicant shall prepare a mitigation action plan in consultation
with the jurisdictional agencies that issued the determination of significant
impact.
(1) Mitigation
action plan means a document that describes the plan for implementing
commitments made in an environmental assessment to mitigate adverse
environmental impacts associated with a project, use or activity.
(2) Mitigation
includes:
(a)
Avoiding the impact altogether by not taking a certain action or parts
of an action;
(b)
minimizing impacts by limiting the degree or magnitude of the action and
its implementation;
(c)
Rectifying the impact by repairing, rehabilitating or restoring the
affected environment;
(d)
Reducing or eliminating the impact over time by preservation and
maintenance operation during the life of the action; and
(e)
Compensating the impact by replacing or providing substitute resources
or environments.
(3) Factors
that the Board will consider when determining the acceptability of appropriate
and practicable mitigation action plan include, but are not limited to:
(a) To be
practicable, the mitigation must be available and capable of being achieved,
considering costs, existing technology, and logistics in light of overall
project purposes;
(b) To the
extent appropriate, applicants should consider restoration, creation,
replacement, enhancement, or preservation of the area requiring
mitigation.
(c) Mitigation that
may be appropriate and practicable includes, but is not limited to:
i) reducing the size
of the project;
ii)
establishing buffer zones to protect coastal resources; and
iii) replacing
the loss of costal resources by creating, restoring, and enhancing similar
functions and values.
b. The Board shall review the mitigation action plan and
determine whether the pan is acceptable and whether a land use permit should be
issued.
(1) The record
shall describe those mitigation measures to be undertaken which shall make the
selected alternative environmentally acceptable.
(2) The Board
may discuss preferences among alternatives based on relevant factors including
economic and technical considerations and Board agency statutory missions.
c. The period for public review and comment on a
mitigation action plan shall commence as of the date the notice of availability
is published in a newspaper of general circulation in the Territory and shall
continue for a period of thirty (30) days.
Written comments to the Manager shall be forwarded to the Board and the
applicant.
B. Supplemental statements
1. Change of circumstances. An environmental assessment or mitigation
action plan that is accepted with respect to a particular action is qualified by
the size, scope, location, and timing of the action. If there is a substantial change in the
project or an amended land use permit in accordance with the provisions of this
chapter, a supplemental statement shall be prepared and reviewed as provided in
this section.
2. Project Notification and Review System determination
of applicability.
a. A supplemental statement shall be warranted when:
(1) the scope
of an action has been substantially increased,
(2) the
intensity of environmental impacts may be increased,
(3) the
mitigation action plan originally planned cannot be implemented, or
(4) new
circumstances or evidence may result in different or likely increased
environmental impacts.
b. The Board shall be responsible for determining whether
a supplemental statement is required.
This determination will be submitted to the Manager for written
notification to the applicant that a supplemental statement shall be required
for public review.
3. Contents. The
contents of the supplemental statement shall be the same as required for an
environmental assessment and a mitigation action plan and may incorporate by
reference unchanged material from the same; however, the supplemental statement
shall fully document the proposed changes from the original environmental
assessment and mitigation action plan, discuss the process followed to address
these changes, and discuss the positive and negative aspects of these
changes.
4. Procedures. The
requirements of consultation, filing public notice distribution, public review,
comments and response, and acceptance procedures, shall be the same for the
supplemental statement as prescribed for an environmental assessment.
26.0225 National Environmental Policy Act
A. Applicability.
When a proposed project, use or activity is be subject both to the
National Environmental Policy Act, as amended, 42 USC §§ 432____ - 4370, as
amended by Public Law 94-52 and Public Law 94-83; and this section, the
following shall occur;
B. The applicant shall notify the responsible federal agency
and the Board of the situation.
C. The National Environmental Policy Act requires that a
draft environmental assessment or environmental impact statement be prepared by
the responsible federal agency. When the
responsibility of preparing an environmental assessment or an environmental
impact statement is delegated to a territorial agency, the Board shall
cooperate with relevant agencies to the fullest extent possible to reduce
duplication between the federal and territorial requirements. This cooperation shall include, where
appropriate, a joint environmental impact statement or environmental
assessment, with concurrent public review and processing at both levels of
government, so that one document shall comply with all applicable laws.
26.0226 Federal Consistency
A. Application.
Federal actions (including direct federal activities and development
projects, federal license or permit activities, and federal assistance
activities) shall be conducted consistent the provisions of this chapter, if
the action is reasonably likely to affect any land or water use of natural
resource of American Samoa’s coastal zone, pursuant to the federal regulations,
15 C.F.R. part 930 and any federal consistency guidance provided by the
American Samoa Coastal Management Program.
B. American Samoa Coastal Management Program
responsibility. The Manager is
responsible for reviewing a federal agency’s consistency determination, an
applicant’s consistency certification, and a territorial or local government’s
application for financial assistance, and shall inform the Board of the
undertaking and shall inform all other government agencies with relevant
jurisdiction and permitting authority to apply the goals, purposes, policies
and objectives of the Act and the provisions of this chapter; and applicable
territorial air and water quality standards, rules, and regulations.
C. Public comment.
Public comments are invited on the American Samoa Coastal Management
Program’s review of a federal agency’s consistency determination and an
applicant’s consistency certification.
1. Direct federal activities. The American Samoa Coastal Management Program
shall publish in a newspaper of general circulation in the Territory, a public
notice in accordance with the provisions of this chapter on major projects,
which will include: a summary of the
proposal; state that the information submitted by the federal agency is
available for public inspection; and that public comments may be made to the
Manager within thirty (30) days of the first publication.
2. Federal license or permit activities. An applicant for a federal approval that is
subject to the requirements of this chapter shall publish, on forms provided by
the American Samoa Coastal Management Program, in a newspaper of general
circulation in the Territory, a public notice which shall include: a summary of the proposal; state that the
information submitted by the applicant agency is available for public
inspection; and that public comments may be made to the Manager within thirty
(30) days of the first publication.
D. Territorial permits.
If any federal action subject to this chapter also requires a land use
permit or any other permit or approval from the Territorial Government, the
project proponent shall prepare a land use permit application simultaneously
with their federal consistency determination or certification.
E. Listed Federal licenses or permits. The federal agency licenses and permits that
the Manager shall review for consistency with the American Samoa Coastal
Management Program are:
1. Permits required from the Department of Commerce,
Office of Ocean and Coastal Resource Management, Sanctuaries and Reserves
Division, for activities within Marine Sanctuaries under 33 USC 1401-1444;
2. Permits required from the Department of Defense, U.S.
Army Corps of Engineers for:
a. Permits under sections 9 and 10 of the Rivers and
Harbors Act, authorizing the construction of dams and dikes, and the
obstruction of navigable waters.
b. Permits under section 4(F) of the Outer Continental
Shelf Lands Act and amendments, authorizing artificial islands or fixed
structures on the Outer Continental Shelf.
c. Permits under section 103 of the Marine Protection
Research and Sanctuaries Act, authorizing the transport of dredged material for
ocean dumping.
d. Permits under section 404 of the Clean Water Act,
authorizing discharges of dredged and fill material into navigable waters (also
subject to state certificate of reasonable assurance, under section 401 of the
Clean Water Act).
3. Permits required by the Department of Energy and the
Federal Energy Regulatory Commission for:
a. Licenses required for non-Federal hydroelectric
projects and primary transmission lines under section 3(ll),
4(e), and 15 of the Federal Power Act, 16 USC 796(ll),
797(e) and 808).
b. Certificates of public convenience and necessity for
the construction and operation of natural gas pipeline facilities, including
both interstate pipeline and liquid natural gas terminal facilities under
section 7 (c) of the Natural Gas Act, 15 USC 717(f)(c)).
4. Permits required by the Environmental Protection
Agency for:
a. Permits required under section 402 of the 1972 Federal
Water Pollution Control Act and amendments, authorizing discharge of pollutants
into navigable waters. (Also, subject to
state certificate of reasonable assurance, Clean Water Act section 401.)
b. Permits required under section 405 of the 1972 Federal
Water Pollution Control Act and amendments, authorizing disposal of sewage
sludge.
c. Permits for new sources or for modification of
existing sources and waivers of compliance allowing extensions of time to met
air quality standards under section 112(c)(1) of the 1972 Clean Air Act.
d. Exemption granted under the Clean Air Act for
stationary sources.
5. Permits and licenses required for the Nuclear
Regulator Commission for the siting, construction,
and operation of nuclear facilities.
6. Permits required for the Department of
Transportation.
a. Permits for construction of modification of bridge
structures and causeways across navigable waters.
b. Permits for siting,
construction, and operation of deep water ports.
c. If, in the future, it is found that the issuance of
other types of federal permits and licenses cause direct and significant impact
on coastal land and water resources, the Manager will either seek to review the
activity as an unlisted activity pursuant to 15 CFR 930.54 and/or the Manager
will seek to amend this list.
26.0227 Public information and education.
A. The American Samoa Coastal Management Program shall
make information and educational materials available to the public and any
Territorial agencies and officials. The
information shall, to the extent practicable, be in the vernacular appropriate
for
B. The American Samoa Coastal Management Program shall
provide ongoing technical assistance and education to villages to assist the
villages in preparing and maintaining any local coastal management program or
village ordinance in support of coastal management objectives.
C. The American Samoa Coastal Management Program shall
maintain a current series of island maps clearly showing the Territory’s
Special Management Areas, wetlands, and other unique areas.
26.0228 Public records
A. The Department of Commerce shall retain and preserve
the following records for a minimum of five (5) years following their receipt,
or in the case of a land use permit, for five (5) years following the last
agency action. After five (5) years, the
following materials shall be safely archived:
1. Land use permit applications and the action taken
thereon.
2. Board meetings and public hearing records, including
all minutes, transcripts and audio or video tape recordings.
3. The American Samoa Coastal Management Program materials,
including all studies, guides, plans, policy statements, special reports,
educational materials, memorandums of understanding, or other information
obtained or prepared by the Department of Commerce or the American Samoa
Coastal Management Program in order to provide public information and education
or improve interagency coordination.
B. All the American Samoa Coastal Management Program
records on file at the Department of Commerce shall be available for public
inspection during normal business hours.
Minutes of Board meetings and transcripts or tapes of meetings or public
hearings shall be made available upon request within thirty (30) days after the
meeting or hearing, except where the disclosure would be inconsistent with the
law. Reasonable fees and costs incurred
in researching and reproducing the records may be charged.
26.0229 Severability. If any provision of this chapter, or the
application of any provision of this chapter to any person or any other
instrumentality, shall be held invalid by a court of competent jurisdiction,
the remainder of this chapter shall not be affected.