2018 Louisiana Laws
Revised Statutes
TITLE 49 - State Administration
RS 49:214.5.2 - Functions and responsibilities; Coastal Protection and Restoration Authority Board

§214.5.2. Functions and responsibilities; Coastal Protection and Restoration Authority Board

            A. The board shall:

            (1) Represent the state's position in policy relative to the protection, conservation, enhancement, and restoration of the coastal area of the state through oversight of integrated coastal protection projects and programs and by addressing activities which require a coastal use permit which could significantly affect integrated coastal protection projects and programs, all consistent with the legislative intent as expressed in R.S. 49:214.1.

            (2) Develop, coordinate, make reports on, and provide oversight for a comprehensive coastal protection master plan and annual plans, working in conjunction with state agencies, political subdivisions, including flood protection authorities, levee districts, and federal agencies. The master plan shall include a comprehensive strategy addressing the protection, conservation, enhancement, and restoration of the coastal area through the construction and management of integrated coastal protection projects and programs, all consistent with the legislative intent as expressed in R.S. 49:214.1. The annual plan shall be developed as the annual implementation of the comprehensive master plan and shall be submitted to the legislature for approval as set forth in R.S. 49:214.5.3. The annual plan shall include a description and status of all projects and programs pertaining to integrated coastal protection, including privately funded wetland enhancement projects or plans, and addressing those activities requiring a coastal use permit which significantly affect projects set forth in the plan, all consistent with the legislative intent as expressed in R.S. 49:214.1.

            (3) Submit to the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources and the House Committee on Transportation, Highways and Public Works and the Senate Committee on Transportation, Highways and Public Works the integrated coastal protection plans developed pursuant to R.S. 49:214.5.3. Upon approval of the plans by the legislative committees and prior to implementation of the plans, in whole or in part, the plans shall be approved by the legislature as provided in R.S. 49:214.5.3(E).

            (4) Have the discretion to approve all requests for integrated coastal protection programs and projects in the coastal area, insofar as such requests are for funds to be appropriated from the Coastal Protection and Restoration Trust Fund.

            (5) Be authorized to delegate any of its powers, duties, and functions to the chairman of the board, to the executive director of the Coastal Protection and Restoration Authority, or to state agencies, political subdivisions, including flood protection authorities, or levee districts.

            (6) Develop procedures in accordance with the Administrative Procedure Act and take actions against any entity, including political subdivisions, to enforce compliance with the comprehensive master coastal protection plan. Such procedures and actions may include but are not limited to determinations of noncompliance; appeal from such determinations; the taking of administrative action, including the withholding of funds; and civil action, including the seeking of injunctive relief, or any other remedy necessary to ensure compliance with the plan.

            (7) Have the power and authority to enter into any contract with the federal government or any federal agency or any political subdivision of the state or private individual for the study, planning, engineering, design, construction, operation, maintenance, repair, rehabilitation, or replacement of any integrated coastal protection project and to this end, may contract for the acceptance of any grant of money upon the terms and conditions, including any requirement of matching the grants in whole or part, which may be necessary.

            (8) Have the power and authority to maximize the use of non-federal funds and in-kind donations to provide for the costs associated with non-federal cost-share requirements associated with integrated coastal protection projects.

            (9) Develop guidelines for cost-sharing agreements with public and private entities participating in approved integrated coastal protection projects.

            (10) Be the responsible party for the Westbank Hurricane Protection projects in accordance with R.S. 38:100 et seq., and the Lower Atchafalaya River Interim Flood Protection projects in accordance with R.S. 38:106 et seq.

            (11) Have the power to enter into any agreement with a parish governing authority located wholly or partially within the coastal area but which is not part of a levee district for the construction, operation, maintenance, repair, rehabilitation, or replacement of any coastal protection, conservation and restoration, hurricane protection, infrastructure, storm damage reduction, integrated coastal protection, or flood control project. The board shall have the power to provide in the agreement for the use and exercise by the parish governing authority of any and all powers of levee districts or levee and drainage districts.

            B. The board may:

            (1) Accept and use, in accordance with law, gifts, grants, bequests, endowments, or funds from any public or private source for purposes consistent with responsibilities and functions of the board and take such actions as are necessary to comply with any conditions required for such acceptance.

            (2) Utilize the services of other executive departments of state government upon mutually agreeable terms and conditions.

            (3) Take such other actions not inconsistent with law as are necessary to perform properly the functions of the board.

            (4) Adopt rules and regulations in accordance with the Administrative Procedure Act to implement the provisions of this Subpart.

            (5) Delegate signing authority for contracts to the chairman of the board, the executive director of the Coastal Protection and Restoration Authority, or an authorized designee of either. Such designation by the chairman or the executive director shall be by authentic act.

            C. Approval by the board shall be required for any request by a state agency or department for any funds to finance research, programs, mitigation, or projects involving integrated coastal protection, including hurricane protection or the conservation and restoration of coastal wetlands resources; however, this Subsection shall not affect self-generated or dedicated funds.

            D. No state agency or entity shall enter into a contract with the United States Army Corps of Engineers which would require the state to assume liability for or provide the cost of operations and maintenance for a hurricane protection project unless the contract provides for independent third-party review and evaluation in accordance with the best available science and technical capabilities to confirm the project's anticipated level of protection against hurricane flooding prior to the state or political subdivision assuming liability and operations and maintenance obligations. The independent third-party reviewer and evaluator provided for in the contract shall be approved by both the United States Army Corps of Engineers and the nonfederal sponsor. However, the provisions of this Subsection shall not apply to contracts for routine maintenance or other minor construction or repairs, or in cases where there is imminent threat to life or property, or when the chairman of the Coastal Protection and Restoration Authority Board, with the approval of the board, determines that an emergency exists whereby compliance with the provisions of this Subsection would create an unreasonable hardship.

            E. Notwithstanding any other provision of law to the contrary, the Department of Wildlife and Fisheries may enter into a cooperative endeavor agreement with the authority, board, or a levee district to allow the use of the department's personnel, equipment or lands owned or leased by the state to satisfy wetland mitigation requirements imposed upon the authority or levee district by federal, state, or local law.

            F. Upon the approval by the board, and notwithstanding any law to the contrary, the authority, the state, or any political subdivision thereof, may use its own resources for satisfying any mitigation requirements resulting from or related to an integrated coastal protection project.

            G. Notwithstanding any law to the contrary, the Coastal Protection and Restoration Authority, upon approval by the board, may enter into a contract for the study, investigation, and cleanup of, or response to, hazardous substances directly with any person or entity who has entered into a contract with the United States Army Corps of Engineers for an integrated coastal protection program or project where the hazardous substance is located and if federal law, rules, regulations, guidance, or the terms of a cooperative, partnership, or other agreement for the program or project require the state of Louisiana to directly take action with regard to the study, investigation, and cleanup of, or response to, the hazardous substance. Nothing in this Section shall prevent the authority from contracting with any person or entity in any other manner permitted by law. In approving the contract with the United States Army Corps of Engineers contracting entity or person, the board shall do all of the following:

            (1) Make a determination that the United States Army Corps of Engineers entered into the contract with its contractor through a public bid process.

            (2) Obtain from contractors other than the one under contract with the United States Army Corps of Engineers, at least two estimates for the needed work to be conducted under the contract for study, investigation, and cleanup of, or response to, hazardous substances from persons or entities qualified to conduct such work, as determined by the board.

            (3) Obtain an estimate for the needed work from the United States Army Corps of Engineers contractor.

            (4) Make a determination that contracting directly with the United States Army Corps of Engineers contractor is economical, feasible, and in the best interest of the health, safety, and welfare of the citizens of the state of Louisiana.

            H.(1) The board may establish a natural resource damages restoration banking program as an alternative method to offset injuries to natural resources sustained as a result of oil spills in coastal areas as defined in R.S. 49:214.2, consistent with the Oil Pollution Act of 1990 and the Oil Spill Prevention and Response Act, R.S. 30:2451 et seq. A "restoration bank" is a site where land or resources are restored, created, enhanced, or preserved for the purpose of restoring natural resources injured by oil spills in Louisiana's coastal areas. "Restoration" is an umbrella term whose meaning encompasses the creation, enhancement, preservation, rehabilitation, or replacement of natural resources. Such restoration bank program shall be established through the promulgation of rules and regulations under the Administrative Procedure Act and shall be submitted to the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources for oversight. The rules and procedures developed by the board shall do the following:

            (a) Set forth a process and procedures for the certification and establishment of restoration banks in the state, including criteria for adoption of a restoration banking instrument. "Restoration banking instrument" is the documentation of state and bank sponsor agreement on the objectives and administration of the bank that describes in detail the physical and legal characteristics of the bank, including the service area, the types and numbers of restoration credits expected to be generated, and how the bank will be established and operated. "Restoration credit" means a unit of trade generated by a restoration bank certified by the state and representing the increase in the ecological value of the bank site, as measured by acreage, ecological function, or another recognized assessment method.

            (b) Ensure certification is provided only to restoration banks meeting the requirements of this Chapter and the rules and procedures promulgated by the board.

            (c) Ensure priority for certification is given to restoration banks that enhance the resilience of coastal resources to inundation and coastal erosion.

            (d) Ensure certification is provided only to restoration banks for which the restoration banking sponsor has secured adequate financial assurance and permanent legally enforceable protection for any restored lands or resources. "Financial assurance" means the money or other form of financial instrument required of the sponsor of a restoration bank to ensure that the functions of the bank are achieved and maintained over the long term.

            (e) Establish criteria for determining service areas for restoration banks.

            (f) Establish criteria for operation and monitoring of restoration banks.

            (g) Establish ecological success criteria or performance standards for restoration banks.

            (h) Establish a system for calculating the number and type of restoration credits generated by a restoration bank.

            (i) Establish a system for the transfer or sale of restoration credits to a responsible party or natural resource trustee and for the transfer of liability for restoration from a responsible party to the restoration bank sponsor in a manner that provides natural resource trustee agencies with certainty as to restoration outcomes.

            (2) Neither the state nor any state agency may act as a natural resource damage restoration bank sponsor under the provisions of this Subsection. For the purposes of this Subsection, a "bank sponsor" is a person or entity responsible for developing and operating a natural resource damage restoration bank.

            I. The board may adopt rules establishing a compensation schedule for the unauthorized discharge of oil in coastal areas. The compensation schedule shall be adopted under the provisions of the Administrative Procedure Act and submitted to the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources for oversight. "Unauthorized discharge of oil" means any actual or threatened discharge of oil not authorized by a federal or state permit as provided in R.S. 30:2451 et seq., the Oil Spill Prevention and Response Act. Any compensation schedule adopted pursuant to this Section shall reflect adequate compensation for unquantifiable damages or for damages not quantifiable at reasonable cost and shall take into account the following:

            (1) Characteristics of any oil spilled, such as toxicity, dispersibility, solubility, and persistence, that may affect the severity of the effects on the receiving environment, living organisms, and recreational and aesthetic resources.

            (2) The sensitivity of the affected areas as determined by such factors as the following:

            (a) The location of the spill.

            (b) Habitat and living resource sensitivity.

            (c) Seasonal distribution or sensitivity of living resources.

            (d) Areas of recreational use or aesthetic importance.

            (e) The proximity of the spill to important habitats for birds, aquatic mammals, fish, or to species listed as threatened or endangered under state or federal law.

            (f) Significant archaeological resources as determined by the division of archaeology of the Department of Culture, Recreation and Tourism.

            (g) Other areas of special ecological or recreational importance, as determined by the authority.

            (3) Actions taken by the party who spilled oil or any other responsible party for the spill that include the following:

            (a) Demonstrating a recognition and affirmative acceptance of responsibility for the spill, such as the immediate removal of oil and the amount of oil removed from the environment.

            (b) Enhancing or impeding the detection of the spill, the determination of the quantity of oil spilled, or the extent of damage, including the unauthorized removal of evidence such as injured fish or wildlife.

            J. The board shall submit to the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources by January fifteenth of each calendar year a report listing each restoration bank certified under the provisions of Subsection H of this Section, including the names of the principals involved in the bank, every restoration credit traded over the past twelve months, and the two parties between whom the credits were traded.

            K.(1) The board shall broadcast over the internet live audio and video streams of all its board meetings in which votes are scheduled to occur.

            (2) All meetings broadcast in accordance with Paragraph (1) of this Subsection shall be recorded, archived, and made accessible to the public for at least six years after the date of the meeting.

            (3) The provisions of this Subsection shall not apply to executive sessions held in accordance with the Open Meetings Law as provided in R.S. 42:11 et seq.

            (4) The audio and video records created pursuant to this Subsection shall not be construed in a manner to be the official record, or any part of the official record, of the proceedings of a meeting of the board.

            (5) If the board is precluded from fulfilling the requirements of this Subsection due to a technical problem beyond its control, or when the only meeting room available lacks the equipment necessary to facilitate internet broadcast, the failure to broadcast or record the proceedings of a meeting of the board shall not be construed to be a violation of the provisions of this Subsection. However, the board shall take no votes at this meeting.

            Acts 2009, No. 320, §1; Acts 2009, No. 523, §3, eff. July 10, 2009; Acts 2010, No. 734, §6; Acts 2012, No. 604, §3, eff. June 7, 2012; Acts 2014, No. 527, §1, eff. June 5, 2014; Acts 2015, No. 69, §1; Acts 2016, No. 362, §1; Acts 2018, No. 157, §1, eff. May 15, 2018.