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explanation which runs counter to the evidence; or (4) the decision is so implausible that
it cannot be the result of differing viewpoints or the result of agency expertise. Id., 103
S.Ct. at 2867.
II. Lack of Federal Consistency Determination
The Public Notice for a Section 404 permit prior to federal consistency
determination and certification is premature and should be postponed due to lack of
information.
Under Section 307 (c) (3)(A) of the Coastal Zone Management Act (CZMA), 16 USC
Section 1456 (c) (3)(A), federally permitted activities that effect any land or water use or
natural resource of the coastal zone are required to be consistent with the affected state's
coastal management program. Coastal Consistency Certification must be in compliance
with Section 930.50 et seq. of the National Oceanic and Atmospheric Administration
Federal Consistency Regulations (Title 15 Code of Federal Regulations Part 930).
The proposed project must comply with the enforceable policies of California's approved
management program and will be conducted in a manner consistent with such program
(15 CFR § 930.57(b)). At this time, there is no basis for a finding of federal consistency
with applicable laws and regulations, since the draft environmental impact statement is
pending.
The proposed project does not comply with state and federal law at this time, and
therefore it is unlikely that federal consistency will be met by this project as submitted.
There is not sufficient information for either the public or trustee agencies to adequately
review this project at this time. It would be irresponsible and premature for the ACOE to
issue a Section 404 permit without further information. A new Public Notice should be
issued after the consistency determination is made, and when sufficient information is
submitted to evaluate the effects of this project.
III. Impacts to Botanical Resources
Direct, indirect, and cumulative impacts to rare, threatened and endangered plant
species are not adequately addressed by the project proposal.
Direct impacts to botanical resources cannot be evaluated at this time due to lack of
substantial information. Botanical surveys conducted according to state and federal
standards (CDFG 2000; U.S. FWS 1996) must be conducted and the results submitted for
review before impacts to sensitive species can be evaluated. A determination on
significant impacts of the project in the absence of this information would be
inappropriate and illegal, and does not conform with the California Coastal
Commission's general procedures for evaluating the performance of wetland mitigation
projects as described in Hymanson and Kingma­Rymek (1995).