Coastal Zone Management Rules & Regs

Plaintiff’s motion for declaratory and injunctive relief to allow proposed work on its coastal property to be characterized as ‘repair‘ of hurricane damage exempt from permit requirements rather than ‘development‘ under this chapter required dismissal; some evidence supported a finding that work in question constituted development within the express statutory language and statute’s basic goals, and therefore plaintiff was required to comply with permit requirements and exhaust its administrative remedies prior to judicial review. Water Island Hotel & Beach Club, Ltd. v. Government of Virgin Islands, 764 F. Supp. 1051, 26 V.I. 276, 1991 U.S. Dist. LEXIS 13424 (D.V.I. 1991).

Determination of whether an activity in a coastal zone constitutes ‘development‘ and therefore requires a coastal zone permit can only be made on a case by case basis. 10 V.I. Op. Att’y Gen. 39.

In construing the meaning of the term ‘development‘ in the Coastal Zone Management Act, the Coastal Zone Management Commission should be primarily concerned with effectuating the purpose of the Act., 10 V.I. Op. Att’y Gen. 39.

In determining whether any activity requires a coastal zone permit, it must first be determined whether that activity constitutes a development within the meaning of the Coastal Zone Management Act., 10 V.I. Op. Att’y Gen. 39.

Cited.

Cited in La Vallee Northside Civic Ass’n v. Virgin Islands Coastal Zone Mgt. Comm’n, 866 F.2d 616, 1989 U.S. App. LEXIS 640 (3d Cir. 1989); LaVallee Northside Civic Ass’n v. Virgin Islands Coastal Zone Mgt. Comm’n, 23 V.I. 406, 1988 U.S. Dist. LEXIS 7037 (D.C.V.I. 1988); La Vallee Northside Civic Ass’n v. Virgin Islands Bd. of Land Use Appeals, 30 V.I. 9, 1994 V.I. LEXIS 6 (Terr. Ct. St. C. 1994); Virgin Islands Conservation Soc’y, Inc. v. Virgin Islands Bd. of Land Use Appeals, 30 V.I. 191, 857 F. Supp. 1112, 1994 U.S. Dist. LEXIS 8364 (D.C.V.I. 1994); Environmental Ass’n v. Virgin Islands Bd. of Land Use Appeals, 31 V.I. 9, 885 F. Supp. 792, 1994 V.I. LEXIS 19 (Terr. Ct. St. T. and St. J. 1994).

12 V.I.C. § 902, VI ST T. 12 § 902

Statutes current through Act 8310 of the 33rd Legislature, including all code changes through July 21, 2020.

Table 1.

Minimum Setback Requirements for OSDS

NOTES:

(1) Includes beds, trenches or chambers in mounds.

(2) 1.5 times the slope of the existing land in percent to the nearest 5%, but no less than 5 feet.

(3) Includes cisterns and wells.

(4) Coastal wetlands only, measured from the mean high tide line or the landward edge of the mangrove trees, whichever is greater.

(5) Ditches, stream beds or guts. The distance shall be measured from the top of the stream bed/gut embankment, or the calculated interface of the land and the 10-year flood level, whichever is greater.

(6) Downslope is perpendicular to slope of land. Sideslope is parallel to the slope of the land.

(7) For cisterns, may be reduced to 15 feet if the top of the tank, or the top of the disposal field or sand filter, or the irrigation line is below the bottom of the cistern respectively, or if the cistern is above ground.

(8) Escarpments or cuts over 3 feet deep.

d. No person may locate an OSDS anywhere, except on the property occupied by the structure to be served.

e. An operations and maintenance manual or plan must accompany all applications.

f. A Site Soil Map and a Site Soil Analysis must accompany the application. The site soil analysis must describe the suitability of the soils and site conditions for the disposal of the effluent. The soil’s parent material, textural classification, drainage conditions, bulk density, color and the depth to limiting factors must be identified. The presence of swelling clays, seasonally saturated soils, depth to bedrock, and the groundwater elevation must also be included. An applicant may rely upon the property’s soil classification and characteristics as defined by the USDA-NRCS in the “Classification and Correlation of the Soils of the Virgin Islands of the United States”, 1995, instead of conducting a site soil analysis.

g. Any test pit that is required for a proper soil analysis must be excavated to a depth of 48 inches, or until bedrock, impervious soils or swelling clays are encountered. Test pits must be sampled according to the procedures outlined in the handbook and the results must be submitted with the application.

(3) General Design Criteria for All OSDS

a. OSDS sewerage flow specifications for a single-family dwelling are 100 gallons per day (gpd) per bedroom. The minimum sewerage flow must be 200 gpd.

b. Sewerage flow specifications for other than a single-family residential building may be established through actual water use records that have been collected over a minimum of a one-year period. Readings must have been taken from the actual establishment or a similar establishment. If this methodology is used, then sewerage flow must be the calculated flow plus ten (10) percent.

c. Sewerage flow specifications may be calculated as required by the plumbing code adopted by DPNR/Division of Permits rules and regulations. See National Standard Plumbing Code (National Association of Plumbing – Heating – Cooling Contractors, 1996, or most recent update).

d. Reductions in Calculated Sewerage Flow

(1) Combinations and additive reductions are allowed for alternative toilets connected to a separate laundry disposal system or a low volume toilet connected to a separate laundry disposal system. Maximum allowable reductions in calculated sewerage flows are:

(a) Alternative Toilets: 30%. Alternative toilets may be connected to a graywater disposal system. If so, the conventional septic tank and disposal area are not required.

(b) Low Volume Toilets: 10%

(c) Separate Laundry Disposal System: 20%. A separate graywater disposal system is required when this option is proposed. See V.I. R & REGS tit. 12, § 910-1.(e)(8).

(2) The OSDS must be enlarged to original specifications if the conservation device or system is removed or malfunctions.

e. Any addition of one or more bedrooms, the replacement of an alternative toilet, or any other modification of a structure that increases the sewerage flow of a system requires that the OSDS be upgraded to meet the requirements of the rules and regulations under this section.

f. Community or cluster systems serving more than one dwelling must have a sewerage flow of the total individual dwellings’ sewerage flows.

g. The liquid capacity of an OSDS must meet the requirements of the National Standard Plumbing Code or other plumbing code adopted by DPNR/Division of Permits rules and regulations. See National Standard Plumbing Code (National Association of Plumbing – Heating – Cooling Contractors, 1996, or most recent update), but must be 1000 gallons or more.

h. Materials used in the installation and construction of the OSDS must meet all requirements of the National Standard Plumbing Code or other plumbing code adopted by DPNR/Division of Permits rules and regulations. See National Standard Plumbing Code (National Association of Plumbing – Heating – Cooling Contractors, 1996, or most recent update).

(4) Conventional Septic System Design Criteria and Requirements

a. A septic or treatment tank must be pumped at least once every five years by a licensed septic tank cleaner.

b. No permits will be issued for a septic system with a sewerage flow of more than 1000 gallons per day (gpd), or for flows that are other than domestic in composition, except for a constructed wetland system.

c. Community or cluster systems serving more than one dwelling must not exceed 1000 gpd sewerage flow, unless a constructed wetland system is utilized.

d. If a disposal area is to be utilized, the approximate corners of the disposal area must be located in the field and clearly marked.

e. If a conventional OSDS is unsuitable for a site due to any limiting factor, then a constructed wetland or other alternative disposal system must be utilized.

f. If a conventional OSDS malfunctions and cannot be repaired to a condition that meets current OSDS standards, a replacement system must be installed. The replacement system must be either a constructed wetland disposal system design or other alternative disposal system approved by DPNR. A replacement system application shall be considered an application for a new OSDS.

g. Wastewater from a septic tank must be discharged to an in-ground trench, bed or chamber; mound, sand filter or other discharge system. The disposal area and system must be constructed parallel to the ground contour and meet the requirements of the National Standard Plumbing Code or other plumbing code adopted by DPNR/Division of Permits rules and regulations. See National Standard Plumbing Code (National Association of Plumbing – Heating – Cooling Contractors, 1996, or most recent update).

(1) In-ground Trench Disposal Area Details

An In-ground Trench Disposal Area must be designed to a length as specified in Table 2 and according to the following criteria.

(a) Trenches must range in depth from 2 to 5 feet; the minimum required width is 24 inches.

(b) The trenches must be separated by a minimum of 6 feet and must not exceed 100 feet in length.

(c) A minimum of 12 inches of stone or other durable and insoluble material of uniform size, 1/2 to 2 1/2 inches in diameter must be placed in the bottom of the trench. Stone must be free of fines, dust, ashes and clay. The distribution line must be completely surrounded by the stone. The distribution line must be designed to uniformly disperse the wastewater throughout the entire trench length using one of the following methods:

(i) Perforated distribu-tion pipe must be installed and aligned so that the holes are located in the lower half of the pipe.

(ii) A pressure distribu-tion system that utilizes a small diameter pressure pipe.

(d) The stone must be completely covered with a minimum of 2 inches of compressed hay, 1 layer of approved non-woven filter fabric, or 1 inch of fiberglass insulation.

(e) Clean backfill, at least 12 inches in depth, must be carefully placed over the hay layer or approved substitute.

(f) An In-ground Trench Disposal Area must be located away from any paved area, driveway, roadway, well, other water supply or waterbody.

(2) In-ground Bed Disposal Area Details

An In-ground Bed Disposal Area must be designed to a size as specified in Table 2 and according to the following criteria.

(a) An In-ground Bed must range in depth from 2 to 5 feet.

(b) Maximum bed length must be 100 feet and a distance of two (2) times their width must separate multiple fields.

(c) Distribution lines must be installed a maximum of 5 feet from the bed’s edge and at intervals of no more than 5 feet.

(d) A minimum of 12 inches of stone or other durable and insoluble material of uniform size, 1/2 to 2 1/2 inches in diameter must be placed in the bottom of the trench. Stone must be free of fines, dust, ashes and clay. The distribution system must be completely surrounded by the stone. The distribution system must be designed to uniformly disperse the wastewater throughout the entire bed area using one of the following methods.

(i) Perforated distribution pipe must be installed and aligned so that the holes are located in the lower half of the pipe.

(ii) A pressure distribution system that utilizes a small diameter pressure pipe.

(e) The stone must be completely covered with a minimum of 2 inches of compressed hay, 1 layer of approved non-woven filter fabric, or 1 inch of fiberglass insulation.

(f) Clean backfill, at least 12 inches in depth, must be carefully placed over the hay layer or approved substitute.

(g) An In-ground Bed Disposal Area must be located away from any paved area, driveway, roadway, well, other water supply or waterbody.

(3) In-ground Chamber Disposal Area Details

(a) Maximum allowable reductions in calculated disposal area are:

(i) In-ground Trench Disposal Area: 40% of the trench length.

(ii) In-ground Bed Disposal Area: 15% of the bed disposal area.

(b) Only chambers designed for H-20 wheel load are allowed for installation under driveways or parking areas.

(c) Chambers must be vented per manufacturer’s specifications.

(d) The 12-inch stone layer and barrier material required for an In-ground Trench Disposal Area or an In-ground Bed Disposal Area may be eliminated with the use of an In-ground Chamber Disposal Area.

(e) A minimum of 12 inches of soil must cover the in-ground chamber.

(4) Mound Disposal Area Details

(a) All vegetation must be removed from the proposed disposal area and fill extension. The topsoil must not be stripped.

(b) The grade tolerance for the bottom of the disposal area and distribution line must be one inch per 100 feet.

(c) Fill must be free of foreign material, placed in 12-inch lifts, and lightly compacted. Fill must be sandy loam or coarser, be specified on the permit application and extend a minimum of 24 inches above the original ground surface.

(d) The finished grade of a mound disposal area must extend 5 feet beyond the edge of the disposal area and have a 3% slope. Beyond the 5-foot outer limit, the fill must be sloped at a uniform grade of no greater than 33% (3:1) to the original ground.

(e) The land adjacent to the mound disposal area must be graded to prevent surface water from accumulating or flowing across the mound disposal area.

(f) The finished mound disposal area and fill extension must be seeded or otherwise vegetated. Woody shrubs are not allowed on the mound disposal area.

(5) Sand Filter Details

(a) The filter area must be calculated by the methods in Table 2. Disposal of filter effluent must be by subsurface disposal or, where surface irrigation will be employed, the effluent must be disinfected after discharge from the sand filter and prior to use for irrigation.

(b) Filter Sand – The filter sand must be clean, coarse sand, passing a screen having four meshes per inch (U.S. Std. Sieve No. 3 1/2). The effective size of the sand must be between 0.3 mm (Sieve No. 50) and 0.6 mm (Sieve No. 30) and preferably be between 0.4 mm (Sieve No. 40) and 0.6 mm. The uniformity coefficient must be less than 4.0. Total organic matter and/or clay particles must not exceed 1%.

• Effective Size = the screen size (opening) which passes no more than 10% of the dried sample.

• Uniformity Coefficient = the screen size (opening) which passes 60% of the dried sample effective size.

(c) Crushed stone – Except for an open sand filter, clean, washed, crushed stone must surround underdrains and distribution pipes. All of the stone must pass a 1–1/2 inch screen and must be retained on a 1/2-inch screen.

(d) Design Details

(i) The treatment tank and dosing chamber pipes must uniformly distribute wastewater throughout the entire sand filter.

(ii) The effluent must be collected in underdrains and directed to a disinfection unit before final discharge. The disinfection unit must be regularly inspected and maintained by a DPNR-approved technician.

(iii) The property owner must have the effluent from the disinfection unit tested every six months for bacterial and fecal conform counts and proper chlorine levels and must report the test results to DPNR.

(e) Construction Details for Buried Sand Filter

(i) General – Following site excavation, the bottom must be hand graded to remove any material that can puncture a plastic liner. The excavation must be backfilled with 2 inches of select fill or sand. If the excavation is in bedrock, 6 inches of select fill must be placed below the liner.

(ii) Filter Liner – The filter must be sealed by a liner on the bottom and sides to at least the height of the distribution piping. The liner may be a minimum of two layers seamless or sealed seam polyethylene, PVC, hyperlon or EPDM rubber at least 20 mils (0.5 millimeters) thick each. A minimum of 4-inch thick reinforced concrete may be used as a liner.

(iii) Areas where piping passes through the liner must be thoroughly sealed and water-proofed.

(iv) Excess liner must not be folded over the top of the filter.

(v) Two inches of select fill or sand must be placed over the liner to prevent punctures. An eight-inch layer of washed gravel 1/2 to 1 1/2 inches in diameter must be placed over the select fill or sand.

(vi) The underdrain pipes must be centered in the 8 inch layer of gravel. A 15-inch wide layer of geotextile filter must be installed over each of the underdrain pipes.

(vii) A sand depth of 24 to 36 inches must be placed over the geotextile filter.

(viii) Eight inches or more of stone or other durable and insoluble material of uniform size, 3/4 to 2 1/2 inches in diameter must be placed on top of the sand. Stone must be free of fines, dust, ashes and clay. The distribution system must be completely surrounded by the stone and must be designed to uniformly disperse the wastewater throughout the entire mound area using one of the following methods.

(a) A perforated distribution pipe system that is installed and aligned so that the holes are located in the lower half of the pipe.

(b) A pressure distribution system that utilizes a small diameter pressure pipe.

(ix) The sand filter must be covered with 6 to 10 inches of loamy material and seeded with grass.

(x) Diversion dikes or ditches may be constructed to divert surface runoff.

(xi) Pipes outside of the sand filter must have a slope of 2.0% or more.

(f) Construction Details for Open (Free Access) Sand Filter

(i) General – The container for the sand filter must be constructed of reinforced concrete or other durable material approved by the Department. Container walls must be constructed to a sufficient height to prevent external surface water from entering the container.

(ii) The minimum thickness of concrete for the bottom and sides of the filter box must be 4 inches. A liner of seamless or sealed seam polyethylene, PVC, hyperlon or EPDM rubber consisting of a minimum of two layers that are at least 20 mils (0.5 millimeters) thick each may be used to waterproof the filter box.

(iii) The filter box must have a removable cover. The cover must be secured to prevent its unauthorized removal or being blown off by wind. A space of 12 to 24 inches must remain between the cover and the top of the sand filter surface.

(iv) The bottom of the filter box must be sloped to effect drainage into the under-drain pipe(s). The underdrain pipes must be centered in a 10-inch layer of gravel or stone between 1/2 to 1 1/2 inches in diameter. The perforated underdrain pipes must be 4 inches in diameter and slope between 0.5% to 1.0%. The upstream end of the underdrain pipe must be vented with a vertical pipe that ends above the filter surface but within the covered area. A 15-inch wide layer of geotextile fabric must be installed over each underdrain.

(v) A sand depth of 24 to 36 inches must be placed over the geotextile filter.

(vi) The distribution system must be designed so no scouring or erosion of the sand surface occurs.

(vii) Piping outside of the sand filter must have a minimum slope of 2.0%.

Table 2.

Design Matrix

Limiting Factors and Sizing of Disposal Area (1)

TYPE OF SYSTEM ALLOWED

A = Alternative OSDS – Constructed Wetland variety.

I = Inground system: Leach beds or trenches with system bottom a minimum of 24″ above bedrock. Chamber size minimum is 60% of trench length or 85% of bed area.

M = Mound system: Leach beds or trenches constructed in sandy loam or coarser sand fill with the system bottom a minimum of 36″ above bedrock.

S = Sand filter with chlorinated discharge or irrigation system disposal.

NA = Not allowed

SF = Sewerage flow (see Section 910-1E.3 in these CZM rules and regulations or section 3.2 in the Handbook).

NOTES:

(1) The sizing for beds, mounds and sand filters is in square feet, and for trenches it is in feet.

(2) Wetland cell size is 0.75 cubic feet per gallon of septic tank.

(3) Slope limit does not apply to wetland systems.

(4) Trench width minimum is 24 inches.

(5) Rock means solid or fractured rock.

(6) Measured from the original ground surface.

(5) Holding Tank System and Holding Tank

a. Holding Tank System

On or after the effective date of this subsection no holding tank system will be permitted.

b. Holding Tank

On or after the effective date of this subsection a holding tank will be permitted only under the following conditions:

(1) As a temporary replacement of an existing failed system when no other means of disposal is possible, and

(2) when connection to a public sewer system or an OSDS is made within one year of the permit’s approval.

c. A holding tank permit is valid for only one year and is not subject to renewal.

d. A copy of a signed contract between a licensed septic tank cleaner and the applicant for a holding tank permit must accompany an application for a holding tank. The contract must identify one or more DPNR approved sites to which the sewage will be hauled.

e. Holding tanks must be waterproofed and be fitted with an audio and visual warning device that indicates when the tank is three-quarters (3/4) full and requires pumping.

f. The owner of the property on which a holding tank has been installed must retain all receipts for pumping services and must submit copies of the receipts to DPNR on a quarterly basis.

(6) Abandoned Septic or Holding Tanks

An abandoned septic or holding tank must be disconnected and either filled with soil or be removed from the property.

(7) Seepage Pits, Boreholes and Cesspools Seepage pits, boreholes and cesspools for the disposal of septic tank or aeration tank effluent are not allowed.

(8) Graywater System

a. The graywater system must not connect to any potable water system and must not result in any surfacing of graywater.

b. The graywater system must accept all graywater connected to the OSDS.

c. The graywater system must have it’s own septic tank. The graywater septic tank can be no smaller than 65% the size of the septic tank required for the entire OSDS.

d. The minimum setback requirements for a graywater system are as follows:

Table 3.

Minimum Setback Requirements for Graywater Systems

NOTES:

(1) Downslope is perpendicular to slope of land. Sideslope is parallel to slope of land.

(2) Includes cisterns and wells

(3) For cisterns, may be reduced to 10′ if top of tank or irrigation pipe is below bottom of cistern elevation.

(4) Measured from toe of slope on mound system and sand filter.

(5) Coastal wetlands only, measured from the mean high tide line or the landward edge of mangrove trees, whichever is greater.

e. The sewerage flow for the graywater system must be calculated using the following parameters:

(1) Showers, bathtubs, kitchen sinks, dishwashers and wash basins–40 gpd per bedroom,

(2) Laundry facilities–20 gpd per bedroom.

f. The required total length for subsurface irrigation lines must be 1.7 times the sewerage flow.

g. All other specifications must meet any applicable requirements of the National Standard Plumbing Code, or other plumbing code adopted by DPNR/Division of Permits rules and regulations, whichever is higher. See National Standard Plumbing Code (National Association of Plumbing–Heating–Cooling Contractors, 1996, or most recent update).

(9) Alternative Toilets

a. Blackwaste may be disposed in an alternative toilet. Chemical toilets are not permitted.

b. Alternative toilets must be installed, maintained, repaired and replaced according to these rules and regulations, DPNR/Division of Permits rules and regulations, or the manufacturer’s recommendations.

(10) Experimental Systems

a. An application for an experimental system must:

(1) Demonstrate that a suitable backup system can be installed in the event the experimental system malfunctions,

(2) Supply documentation of the theory and applied research that supports the experimental system, and

(3) Include a monitoring plan for the installation and use of the experimental system.

b. Maintenance and Operation

(1) Applicants must provide DPNR with documents as proof that they have obtained training from the experimental systems’ manufacturer and are qualified to operate and maintain the experimental system, or

(2) Applicants must provide DPNR with documents as proof that a contractor that has obtained training from the experimental system’s manufacturer and is qualified to operate and maintain the experimental system has been contracted to maintain the experimental system. Copies of all maintenance contracts must be submitted to DPNR.

(11) Alternative OSDS Design Criteria and Requirements

a. Alternative OSDS will be permitted only for domestic wastewater flows.

b. Septic tanks utilized in this system must meet size requirements of section 910-1(e)(3). Septic tanks with a liquid capacity of 1000 gallons must be not less than two chamber tanks. Septic tanks with a liquid capacity greater than 1000 gallons must be three chamber tanks. Existing septic tanks must be retrofitted to have three chambers when the OSDS is converted to the system in this section.

c. Stormwater runoff must not enter wetland cells. Drainage from wetland cells must not reach any domestic water supply.

d. The wetland cells must be constructed parallel to the ground contour.

e. The wetland cells must be constructed to facilitate gravity flow through the system.

f. Wetland cells must have a minimum of three four-inch (4″), perforated inspection tubes available for the taking of effluent samples. Inspection tubes must be capped and placed in the beginning, middle and end of the wetland cell system.

g. Wetland cells must be able to be emptied by submersible pump, gravity drains or other approved method.

h. The total volume of the wetland cells must provide at least 0.75 cubic feet for each gallon of septic tank capacity. The width and depth of the wetland cell (trench or concrete trough) must be 2 feet or more.

i. The floor and walls of all wetland cells must be impervious. If impervious liners are used, they must be unpunctured and must be inspected prior to and during filling by DPNR.

j. The bottom layer of material must consist of clean, washed rock or gravel from 1 inch to 3 inches in diameter and must rise no closer than 8 inches from the top of the cell.

k. The rock or gravel must be completely covered by a pervious fabric separator.

l. The effluent in the wetland cells must be maintained at least 1″ below the pervious fabric separator.

m. The pervious fabric separator must be woven tightly enough to prevent soil particles from entering the gravel bed.

n. Six inches of soils with a low clay content or a high loam or sand content or washed pea gravel must be carefully placed over the fabric separator.

o. Any plants utilized in this system must have a well-established root system and must be firmly rooted prior to commencing system operation.

p. A Minor CZM Permit and all required Building and Plumbing Permits must be obtained prior to increasing the septic tank capacities and the size or number of wetland cells.

q. The requirements of the Zoning Code must be met prior to increasing the septic tank capacities and the size or number of wetland cells. See Zoning and Subdivision Law V.I. Code Annot. tit. 29 §§ 221 et seq.

(12) Cluster or Community System Maintenance/Ownership Agreement

a. Each permittee on a cluster system must be a party to a legally binding agreement regarding ownership, service, and maintenance of the cluster system. The agreement must:

(1) Be legally binding on all parties and ensure each owner of a unit that uses the cluster system for either treatment or disposal, or both, is a party to the agreement;

(2) Allow all permittees free access and use of the system;

(3) Provide a reliable management structure for performing system service, maintenance, and inspection;

(4) Provide a plan for apportioning and collecting all costs associated with using and maintaining the system;

(5) State that all parties to the agreement are jointly and severally responsible for the system’s proper maintenance and functioning.

b. The application for a cluster system must include a certified copy of an affidavit that has been duly recorded with the Office of the Recorder of Deeds for the district in which the real property is located. The affidavit must state that the property must not be transferred to a new owner without the new owner being advised that the property is part of a cluster system and that the new owner must become a party to the Maintenance/Ownership Agreement described in part a, this subsection. This affidavit must be added to the real property deed on which the cluster system is located and must be added to the real property deed of each permittee.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-1, 12 VI ADC § 910-1

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-2

910-2. Waiver of Permit Requirement; Determination of Vested Rights; Clearing for Agricultural Purposes.

(a) Whenever a waiver of the permit requirement is desired on the grounds of emergency, the applicant may orally request such a waiver; Provided, however, That he submits a letter to the Commissioner stating the type and the location of the work, the length of time necessary to complete the work, the name of the person(s) conducting the work, and the reason for requesting a waiver within forty-eight (48) hours of such oral request.

(b) Whenever a claim of vested rights pursuant to the Act is made, prior to any development, such claim shall be made in writing to the Commissioner accompanied by all supporting documentation. The letter so claiming must describe the type and location of the work, the name of the person(s) proposing to conduct the work, the date(s) of obtaining all necessary and required permits, and evidence of commencement of construction in good faith prior to the effective date of the Act. The burden of proof shall be on the person claiming a vested right.

(c) Prior to any activities related to or undertaken in conjunction with the cultivation, use or subdivision of land for agricultural purposes, the Division of Coastal Zone Management shall be notified in writing in order to determine potential impacts on coastal waters and to prescribe appropriate preventive measures. Any preventive measures prescribed by the Division of Coastal Zone Management shall be strictly followed.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-2, 12 VI ADC § 910-2

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-3

910-3. Content of Coastal Zone Applications.

(a) Application Form Design: The permit application form(s) shall be as approved and amended from time to time by resolution of the Commission. Approval may be preceded by consultation with the public and interested persons. This subsection shall not be construed to require Commission approval of nonsubstantive changes in format.

(b) Authority and Signatures: Upon filing an application, the applicant(s) shall be required to evidence in writing his legal interest in and right to perform development upon all property upon which work would be performed if the application were approved, including submission of all relevant legal documents. Where the applicant(s) is not the owner(s) of the property, the owner(s) must co-sign the application before it will be accepted for filing, except when the owner is the Government of the Virgin Islands, co-signatures may not be required. The applicant(s) shall have the burden of demonstrating to the satisfaction of the Commissioner the current validity of the legal interest upon which he bases all or any part of his application, before such application can be deemed complete pursuant to the Act and section 910-7 of these regulations.

Every application shall be dated and signed by the applicant(s), attesting to the truth, completeness and accuracy of the contents under penalty of perjury.

(c) Classification of Projects for Which a Coastal Zone Permit Is Required: Projects for which a Coastal Zone Permit is required shall be classified as either major or minor, as defined in section 910 of the Act except that the dollar figures used to classify projects may be annually adjusted by regulations of the Commission from time to time to reflect changes in economic conditions from the effective date of the Act. Appropriate statistics and formulae prepared by the U.S. Department of Labor shall be used for that purpose.

(d) Information Requested: Application form(s) shall request, and each application filed shall contain, such information, statements, drawings, maps and supplementary data as are reasonably required to determine whether the project applied for complies with the criteria of the Act.

(1) Minor Coastal Zone Permit applications for work to be performed on fastland (excluding land subdivisions) shall include:

(A) Coastal Zone Permit application form;

(B) Drawings for minor permits;

(C) Zoning requirements table;

(D) Public Work Department map;

(E) Proof of legal interest form; and

(F) Application fee.

(2) Minor Coastal Zone Permit applications for work to be performed on submerged land shall include:

(A) Application letter to Department of Conservation and Cultural Affairs;

(B) U.S. Army Corps of Engineers drawings;

(C) U.S. Army Corps of Engineers application form;

(D) Environmental Assessment Report for minor projects in coastal waters and shorelines;

(E) Affidavit of ownership or control form; and

(F) Application fee.

(3) Minor Coastal Zone Permit applications for land subdivisions shall include:

(A) Coastal Zone Permit application form;

(B) Drawings for subdivisions;

(C) Public Works Department map;

(D) Affidavit of ownership or control form; and

(E) Application fee.

(4) Minor Coastal Zone Permit applications for work on filled submerged lands shall include:

(A) Coastal Zone Permit application form;

(B) Drawings for minor permits;

(C) Zoning requirements table;

(D) Public Works Department map;

(E) Environmental Assessment Report for minor projects on filled land;

(F) Proof of legal interest (only if land other than filled submerged land is involved as well) and application form for a use permit or lease on filled submerged land; and

(G) Application fee.

(5) Major Coastal Zone Permit applications for work to be performed on fastland shall include:

(A) Coastal Zone Permit application form;

(B) Environmental Assessment Report for major projects;

(C) Drawing requirements for major Coastal Zone Permit applications;

(D) Public Works Department map;

(E) Affidavit of ownership or control form;

(F) Major project summary data; and

(G) Application fee.

(6) Major Coastal Zone Permit applications for work to be performed on submerged lands shall include:

(A) Application letter to Department of Conservation and Cultural Affairs;

(B) U.S. Army Corps of Engineers drawings;

(C) U.S. Army Corps of Engineers application form;

(D) Environmental Assessment Report;

(E) Affidavit of ownership or control form; and

(F) Application fee.

(7) Major Coastal Zone Permit applications for work to be performed on filled submerged land shall include:

(A) Coastal Zone Permit application form;

(B) Environmental Assessment Report;

(C) Drawings for major Coastal Zone Permit applications;

(D) Public Works Department map;

(E) Affidavit of ownership or control and application for a use permit or lease on filled submerged lands;

(F) Major project summary data; and

(G) Application fee.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-3, 12 VI ADC § 910-3

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-4

910-4. Amendment of Coastal Zone Permit Applications.

(a) Amendments to applications for minor Coastal Zone Permits will be accepted at any time prior to granting or denial of such permits unless the Commissioner determines that the proposed amendment would substantially modify the scope, nature or characteristics of the proposed development. If the Commissioner has acted on a minor Coastal Zone Permit before the expiration of the statutory time limit for processing, the action shall be considered complete, and the permittee shall apply for a modification of approved coastal permit under section 910-14 for any change.

(b) Amendments to applications for major Coastal Zone Permits will be accepted at any time within thirty (30) days of receipt of the original completed application or at least thirty (30) days before the public hearing on the application, whichever is earlier, unless the Commissioner determines that the proposed amendment would substantially modify the scope, nature or characteristics of the proposed development. However, even if an amendment does not substantially modify the scope, nature or characteristics of the proposed development, the processing schedule, as set forth in section 910(d) of the Act, shall recommence from the date the amendment is filed.

(c) When the Commissioner determines that a proposed amendment to a Coastal Zone Permit application would substantially modify the scope, nature or characteristics of the proposed development, the original proposal shall be deemed withdrawn. The Commissioner shall promptly so notify the applicant. In such case, the applicant shall submit a new application for a Coastal Zone Permit prior to any further consideration of the development as originally proposed or as amended.

(d) The Commissioner may waive in whole or in part administrative processing fees and/or informational requirements for processing such an application referred to in subsection (c) based on the extent to which information or fees previously submitted are adequate for processing of the new application. (Section 910-5 of these regulations sets forth general provisions governing fees.)

Current through December 28, 2020

12 V.I. R. & Regs. § 910-4, 12 VI ADC § 910-4

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-5

910-5. Fees.

(a) Any person submitting an application for a Coastal Zone Permit shall pay a nonrefundable administrative processing fee as set forth herein.

(b) Any person securing a Coastal Zone Permit which includes a permit or lease for the development or occupancy of trustlands or other submerged or filled lands shall pay full economic rentals as set forth herein.

(c) All moneys paid to the Department of Conservation and Cultural Affairs pursuant to these regulations shall be deposited into the Natural Resources Reclamation Fund.

(d) Administrative Processing Fees:

(1) Applicants for the following transactions shall accompany their applications with an application processing fee as follows:

(A) Minor Coastal Zone Permit Application

(i) For estimated construction cost of $10,000 or less………. $50.00

(ii) For estimated construction cost greater than $10,000 but less than $25,000 ……….$125,000

(iii) For estimated construction cost of $25,000 or greater ……….$200.00

(B) Major Coastal Zone Permit Application

(i) For estimated construction cost of $250,000 or less……….$500.00

(ii) For estimated construction cost of $250,000 but less than $500,000 ……….$750.00

(iii) For estimated construction cost of $500,000 or greater ……….$1,000.00

(C) Amendment of Minor Coastal Zone Permit………. $50.00

(D) Amendment of Lease or Major Coastal Zone Permit ……….$500.00

(E) Assignment of Minor Coastal Zone Permit………. $50.00

(F) Assignment of Lease or Major Coastal Zone Permit ……….$500.00

(G) Pledge of Minor Coastal Zone Permit ……….$50.00

(H) Pledge of Lease or Major Coastal Zone Permit……….$500.00

(I) Modification of Minor Coastal Zone Permit………. $50.00

(J) Modification of Lease or Major Coastal Zone Permit ……….$500.00

(K) Subdivision – one to four (1-4) lots……….$100.00

– five (5) or more lots ……….$30.00/Lot

(2) The Commissioner may prescribe additional reasonable administrative fees for major Coastal Zone Permit applications if he finds that consideration of the application requires significant administrative expenditures in excess of those typically required on such applications, including the hiring of consultants when skills, knowledge, or expertise are needed but unavailable in the Department.

(e) All leases and permits issued pursuant to the Act and these regulations for trustlands or other submerged or filled lands shall contain provisions for the payment of annual rentals and fees.

The Commissioner or his duly authorized representative shall enter into negotiations with potential lessees or permittees for the establishment of such rentals and fees which shall be based on the fair market value of the land or improvements, gross receipts of commercial operations, and any other factors that may be pertinent thereto; provided however, that the weight being given to the criteria used shall be attached to the lease or permit and that no such lessee or permittee shall be charged a rental or fee less than the minimum provided below, subject to the provisions of subsection (f) of this section.

(1) Commercial Lease: ………. $1,000 minimum rental

(2) Non commercial lease: ………. $500 minimum rental

(3) Filled submerged land permit: ………. $500 minimum rental

(4) Permit for pier or structure on submerged land: ………. $500 minimum rental

(5) Submerged land permit for boat docking at a pier or structure: ………. $500 minimum rental

(6) Dredge permit:………. $1.00 per cubic yard; plus a minimum of 20% of the retail price for which such dredged sand or aggregate is sold

(7) Cables ………. $200 minimum rental

(8) Pipelines: ………. $200 minimum rental.

(f) Waiver or Reduction of Rental:

(1) The Commissioner may waive or reduce rentals when he determines that such a waiver or reduction is in the public interest. The Commissioner must render such a waiver or reduction of rental in writing and specify the reasons therefor. A copy of said decision must accompany the permit or lease when it is transmitted to the Governor for approval and to the Legislature for ratification.

(2) In making a determination pursuant to this section, the Commissioner shall consider:

(A) External factors, not the result of the applicant’s own action, tending to reduce the value of the rental;

(B) General public benefit;

(C) Specific public need; and

(D) Educational, research, scientific or charitable purposes.

(3) In any permit or lease in which, the rental fee has been waived or reduced pursuant to this section, provision shall be made for a reconsideration and/or reassessment of the fee no more than three (3) years after its effective date.

(g) Any person who has obtained a Coastal Zone Permit may pledge such permit to a commercial lending institution as security for a loan from such institution, or its assignee, to the permittee; provided the permittee does all of the following:

(1) pays an application fee of $50.00 (Minor Permit) or $500.00 (Major Permit);

(2) files with the Director an affidavit executed by an appropriate officer of the lending institution which attests to the lending institution’s commitment to comply with the terms and conditions of the permit upon succeeding to title to the permit or the real property covered by or associated with the permit after default and foreclosure of the lending institution’s lien;

(3) files with the Director evidence of the lending institution’s lien against the permit or the encumbrance over the real property covered by or associated with the permit; and

(4) satisfies the Director that all conditions of the permit have been or are being complied with.

The pledge shall be effective upon, the Director’s written acceptance of the document(s) submitted and the written consent of the appropriate Committee or the Commissioner.

(h) Upon foreclosure of a loan which includes a Coastal Zone Permit as security for said loan by a commercial lending institution under the terms of a pledge approved by the appropriate Committee or Commissioner in accordance with Section 910-5(g), the subsequent assignment or transfer of said permit to a purchaser (other than the foreclosing commercial lending institution) at a foreclosure sale or from the lending institution by private sale shall be subject to the provision of Section 910-15; provided, however, that such assignment or transfer shall not be subject to the provisions of Subsection 910-15(e) nor considered to be a modification of an approved Coastal Zone Permit subject to the provisions of Section 910-14 unless, as a part of the application to assign or transfer such permit, actual application is made to modify the permit. The lending institution shall make full disclosure to the Committee of the terms of the proposed assignment, transfer or sale.”

Current through December 28, 2020

12 V.I. R. & Regs. § 910-5, 12 VI ADC § 910-5

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-6

910-6. Application Withdrawal and Temporary Removal from Active Consideration.

(a) At any time before the Commissioner or a Committee acts on an application, an applicant may withdraw the application or remove it temporarily from the Commissioner’s or the Committee’s active consideration.

(b) Withdrawal shall be by signed writing and shall not require the concurrence of the Commissioner or the Committee.

(c) Temporary removal from active consideration shall include:

(1) A signed written statement which requests the consideration of the application by the Commissioner or a Committee meeting on a date not less than twenty-one (21) days later or agrees to give no less than twenty-one (21) days’ written notice prior to the time at which consideration of the application is desired; and

(2) An express waiver of the statutory time limit provisions of the Act and extension of the statutory time limit by the same number of days that consideration of the application is postponed by request of the applicant.

(d) One such temporary removal from active consideration may be made without concurrence of the Commissioner or the Committee; however, all subsequent temporary removals must have the concurrence either of the Commissioner, in the case of a minor permit, or of the Committee, in the case of a major permit.

(e) The Committee or Commissioner may remove an application from active consideration if the applicant fails to provide any of the requested information within the appropriate time limits. The applicant must be given written notice that the application will be deemed withdrawn if the information requested is not provided within 10 days of the service of the notice on the applicant.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-6, 12 VI ADC § 910-6

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-7

910-7. Review of Coastal Zone Permit Applications.

(a) Upon receipt of an application for any Coastal Zone Permit, the Commissioner shall determine whether such application is complete. If the Commissioner determines that an application is not complete, he shall so notify the applicant within fifteen (15) working days from receipt of the application. An application may be resubmitted. Each time an application is resubmitted, the Commissioner shall notify the applicant within fifteen (15) working days whether the application is complete, and, if not, the nature of any further deficiencies. Each time an applicant submits new information, the Commissioner shall have fifteen (15) working days to determine the completeness of the application.

All responses must be submitted within 90 days of the Notice of Deficiency, unless a request for extension is granted. Failure to provide the requested information may be deemed a withdrawal of the application pursuant to Section 910-6(e) of these Rules and Regulations.

The factors to be evaluated in every determination of completeness shall include:

(1) Whether the application contains all documents, data, drawings and other materials specified in the application form;

(2) Whether the application contains sufficient information to enable the Division of Coastal Zone Management and the Committee or Commissioner to evaluate the application; and

(3) Proof of adequate legal interest, including submission of all relevant legal documents, co-signatures of owner(s) of the property where the applicant is not the owner, and if the owner is the Government of the Virgin Islands, demonstration to the satisfaction of the Commissioner of the current validity of the legal interest upon which the applicant bases all or any part of his application.

(b) When the Commissioner determines that an application for a major Coastal Zone Permit is complete, he shall so notify the applicant, send a copy of such application to all relevant public agencies for review and comment within thirty (30) days from receipt thereof, and schedule a public hearing on such application to be held within sixty (60) days from the date on which the Commissioner determines the application is complete. (Section 910-8 sets forth the procedures for public hearings on Coastal Zone Permit applications.)

(c) When the Commissioner determines that an application for a minor Coastal Zone Permit is complete, he shall promptly give written notice of such application to any person who he determines would be affected by or interested in such development, any person who has requested in writing to be notified concerning such development, and to the owner(s) of any/all lot(s) within or adjacent to the site of the proposed development. Upon a request from any such person, the Commissioner shall transmit a copy of the application to such person and request comments thereon within 30 days.

In addition, the Commissioner may give further notice of the project by publishing in a newspaper of general circulation an advertisement setting forth the nature and location of the proposed development and the location of any materials available for public inspection.

(d) The Committee shall act on a major Coastal Zone Permit application within thirty (30) days after the conclusion of the public hearing on such application unless the applicant agrees in writing to expressly waive and extend the statutory time limit. Written notification of the action taken and any condition(s) attached thereto shall be mailed to the applicant or made available to him at the Division of Coastal Zone Management within five (5) working days after the date on which the action is taken. A written summary describing the action, the findings and conclusions, and any conditions attached thereto shall be mailed to the applicant or made available to him at the Division of Coastal Zone Management within twenty (20) working days after the date on which the action is taken.

(e) The Commissioner shall act on a minor Coastal Zone Permit application within sixty (60) days of determination that the application is complete unless the applicant agrees in writing to expressly waive and extend the statutory time limit.

(f) Upon written request by an applicant or upon its own initiative, the Committee may, in its discretion, reconsider any condition which it has imposed as part of its approval of a Coastal Zone Permit application where new facts, not previously available to the Committee through no fault of the applicant, are presented, or where fulfillment of any condition appears impossible or impracticable. Where the applicant requests reconsideration of any condition, he shall have the burden of demonstrating the foregoing.

(g) The Division of Coastal Zone Management may establish a schedule for the orderly receipt and processing of major Coastal Zone Permit applications and a schedule for holding public hearings on major Coastal Zone Permit applications. If established, such schedule shall be prominently posted at the Division of Coastal Zone Management, and copies shall be available to all interested persons. Such schedule may include a set number of public hearings per month and may require that an applicant submit a completed application by a set date in order to have his application heard at the public hearing regularly scheduled for that month.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-7, 12 VI ADC § 910-7

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-8

910-8. Coastal Zone Committee Hearings on Permit Applications.

(a) When the Commissioner determines that an application for a major Coastal Zone Permit is complete, he shall notify the applicant and shall promptly transmit a copy of such application to all relevant public agencies for review and comment within thirty (30) days of receipt thereof, and shall schedule a public hearing to be conducted by the appropriate Committee of the Commission on such application within sixty (60) days of the date on which the Commissioner determines the application is complete. (Section 910-7 sets forth provisions regarding review of Coastal Zone Permit applications.)

(b) Notice of public hearings shall include:

(1) An advertisement setting forth the nature and location of the proposed development, the time and place of the public hearing, and the location of any materials available for public inspection, published in a newspaper of general circulation at least twice before the public hearing;

(2) Written notice to any person whom the Commissioner determines would be affected by or interested in such development, to any person who has requested to be notified of the hearing, and to the owner(s) of any/all lot(s) within or adjacent to the site of the proposed development at least ten (10) days prior to the date of the public hearing; and

(3) A notice setting forth the general purpose, and the time and place of the public hearing posted at the site of the proposed development. (Section 910-7 sets forth provisions regarding review of Coastal Zone Permit applications, including notice.)

(c) The Chairman of the appropriate Committee or, in his absence, his designee shall conduct public hearings on major Coastal Zone Permit applications. At least three members of the Committee shall be present during such public hearings, except where there is a finding by the Chairman of the appropriate Committee (or his designee) of emergency circumstances, in which case a public hearing may be held with fewer than three members of the Committee present.

(d) The Chairman or, in his absence, his designee shall have the power to exclude irrelevant, immaterial, unduly repetitious or argumentative statements or questions and to limit the length of testimony. Any person may submit additional materials in writing for the record, within seven (7) days after the hearing.

(e) Public hearings on Coastal Zone Permit applications shall ordinarily proceed in the following order:

(1) Identification of the application.

(2) Presentation by or on behalf of the applicant.

(3) Other speakers concerning the application.

(4) Other matters or adjournment.

Questions or statements by Committee members, the Commissioner, or the staff of the Division of Coastal Zone Management will be in order at any time.

(f) Records: Evidence submitted to the Committee in connection with Committee actions for which a public hearing has been announced will be available for public inspection at the office of the Director prior to the public hearing. All such evidence shall be retained and made available to the public for inspection after final Committee action.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-8, 12 VI ADC § 910-8

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-9

910-9. Coastal Zone Committee Meetings on Coastal Zone Applications.

(a) The Chairman of a Committee, upon his own motion or upon the request of a Committee member, the Commissioner, or the Director may schedule meetings of the Committee on Coastal Zone Permit applications. (Procedures governing Coastal Zone Committee meetings on matters other than permit applications are set forth in section 904-4.)

(b) All meetings of a Committee shall be entered on a schedule to be maintained at the office of the Director, which schedule shall be available for public inspection during regular business hours. The schedule entry of a Committee meeting shall include an agenda of items to be considered by the Committee at the meeting.

(c) Minutes shall be kept of all meetings of a Committee. Minutes may include a short summary of the business which was conducted by the Committee and a record of all official actions taken, if any, by the Committee. Such minutes shall be available for public inspection.

(d) The Committee shall conduct site visits whenever it determines that such visits would be helpful in evaluating Coastal Zone Permit applications, Coastal Zone Permits and compliance therewith.

(e) At a vote on any matter, including but not limited to applications for Coastal Zone Permits, a tie vote on a motion shall be deemed disapproval of the motion.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-9, 12 VI ADC § 910-9

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-10

910-10. Coastal Zone Permit Provisions.

(a) Coastal Zone Permits for coastal zone applications which have been approved shall include:

(1) A concise and accurate description of the development authorized by the Coastal Zone Permit.

(2) Identification of any documents, incorporated by reference, which are required to clarify the terms of the Coastal Zone Permit or to facilitate carrying out the intent of the Committee or the Commissioner.

(3) The date on which the permit becomes effective (which date shall be the date on which it is signed by the Committee or the Commissioner) and, where appropriate, the date on which the permit shall expire.

(4) A statement that construction of any development approved by a Coastal Zone Permit shall begin within twelve (12) months from the date such permit becomes effective and shall be continuous until completion and that failure to so commence work within such period and continuously construct thereafter until the completion of construction, shall cause the permit to terminate automatically and render it null and void, unless the permittee requests an extension in writing and demonstrates to the satisfaction of the Committee or Commissioner that good cause exists for granting such extension. If a permittee requests an extension of a major Coastal Zone Permit, notice shall be published of such request, and the public shall have the right to comment in writing concerning such request.

(5) A statement that the permit may not be transferred or assigned except as provided in section 910-15 of these regulations.

(6) A statement that the Commission, its Committees, the Commissioner or their authorized agents or representatives shall have the power to enter at reasonable times upon any lands or waters in the coastal zone for which a Coastal Zone Permit has been issued, and that the permittee shall permit such entry, for the purpose of inspecting and ascertaining compliance with the terms and conditions of said Coastal Zone Permit, and that the permittee shall provide access to such records as the Commission, its Committees or the Commissioner, in the performance of its or his duties under the Act, may require the permittee to maintain. Such records may be examined, and copies shall be submitted to the Commission, its Committees or the Commissioner upon request.

(7) A statement that if the permit is revoked or expires, the permittee shall, upon order of the Committee or the Commissioner, and in their sole direction:

(A) Remove all structures authorized by the permit and restore the area in the manner specified by the Division of Coastal Zone Management; and/or

(B) Modify such structure or site; and/or

(C) Comply with any reasonable directive of the Committee or the Commissioner in satisfying the original permit conditions in such time and manner as the Committee or the Commissioner may direct.

(8) A statement that if the development or occupancy of trustlands or other submerged or filled lands, or other development in the coastal zone, requires separate and distinct approval from the United States Government or any agency, department, commission or bureau thereof, then no such development or occupancy shall begin before receipt of all such permits and approvals.

(9) A statement that the development will operate so as to assure optimum public access to recreational opportunities at the shoreline. (This provision shall not be included in minor Coastal Zone Permits.)

(10) A statement that a placard evidencing the permit shall be posted conspicuously at the project site during the entire period of work.

(11) A statement that in issuing this permit, the Committee or the Commissioner has relied on the information and data provided by the permittee and that if, after the issuance of this permit, such information or data prove to be false or inaccurate, then the Committee or the Commissioner may modify, suspend, or revoke the permit, in whole or in part, and institute appropriate legal proceedings.

(12) A statement that when the activity authorized or required by a Coastal Zone Permit is complete the permittee shall promptly so notify the Director and provide him with a certification of compliance that the plans and specifications of the project and all applicable Department of Conservation permit requirements have been met.

(13) A statement that if the permittee abandons, deserts or vacates the premises or discontinues its operations at the premises for a period totalling six (6) consecutive months, then the permit will terminate automatically and be rendered null and void.

(b) In addition to those provisions required by subsection (a), the Committee or the Commissioner may require additional conditions to be included.

(c) In addition to those provisions required by subsections (a) and (b), all Coastal Zone Permits for the occupancy or development of trustlands or other submerged or filled lands shall include:

(1) The amount and manner of payment of rental and/or use fees.

(2) A statement that a Coastal Zone Permit that includes an occupancy or development permit is issued for a definite term, shall not constitute a property right, and shall be renewable only if the requirements of 12 V.I.C. § 911 are satisfied.

(3) A statement that a Coastal Zone Permit for the occupancy or development of trustlands or other submerged or filled lands shall be subject to approval by the Governor and ratification by the Legislature or, if the Legislature is not in session, then by the Committee on Conservation, Recreation, and Cultural Affairs of the Legislature.

(d) All Coastal Zone Permits shall contain a statement that violation of any provision of the permit shall result in revocation of the permit.

“(14) A statement that the applicant shall sign and return the permit document to the Department within 60 days of receipt thereof. Failure to return the signed permit within the time period specified herein will be considered a rejection of the terms and conditions of the permit and will render the offer of the permit null and void, unless a written extension is requested and granted.”

Current through December 28, 2020

12 V.I. R. & Regs. § 910-10, 12 VI ADC § 910-10

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-11

910-11. Issuance of Major Coastal Zone Permits; Easements.

(a) Development for which a major Coastal Zone Permit has been approved shall not begin until the Committee has signed and issued the Coastal Zone Permit to the applicant.

(b) If approval of a major Coastal Zone Permit has been given subject to conditions, including but not limited to a condition requiring conveyance of an easement or right-of-way, then no Coastal Zone Permit shall be issued until all such conditions have been met, including but not limited to receipt of an easement or right-of-way conveyance acceptable to the Committee; Provided, however, That the Committee, in its discretion, may issue a Coastal Zone Permit prior to compliance with all conditions where:

(1) The applicant has evidenced his intent to comply with the condition;

(2) The applicant has satisfied the Committee and demonstrated in writing why the condition cannot be partly or fully complied with before issuance of the permit; and

(3) No reasonable grounds for insecurity have arisen as to the applicant’s compliance with, or intent to comply with, the condition(s).

(c) Notwithstanding the provisions of subsection (b), if any condition of a major Coastal Zone Permit requires the applicant to submit a plan for satisfaction of a condition to the Division of Coastal Zone Management and/or to the Committee for review and approval, no Coastal Zone Permit shall be issued until such plan(s) has been reviewed and approved.

(d) If a Committee requires grant of an easement or public access way as a condition of a major Coastal Zone Permit application, then the following procedures shall apply:

(1) Any such easement shall be granted to the Government of the Virgin Islands and shall allow free and unrestricted access to the shoreline by the public;

(2) Any such easement shall be in a form sufficient to satisfy the requirements of the Virgin Islands Code; and

(3) Any such easement shall be delivered to the Director, who shall promptly record the easement at the Office of the Recorder of Deeds.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-11, 12 VI ADC § 910-11

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-12

910-12. Conservation Practices.

Any development for which a Coastal Zone Permit is required and issued shall be performed in accordance with the standards set forth in applicable local and federal law and regulations.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-12, 12 VI ADC § 910-12

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-13

910-13. Certificates of Occupancy.

(a) No structure which has been constructed pursuant to a Coastal Zone Permit shall be occupied or used until a Certificate of Occupancy has been applied for, approved, and issued by the Commissioner pursuant to his duties as Zoning Administrator under the Act and Title 29 V.I.C., chapter 3.

(b) An applicant for a Certificate of Occupancy may make joint application for said Certificate (to be issued by the Commissioner) and for a Certificate of Use and Occupancy pursuant to Title 29 V.I.C., chapter 5 (to be issued by the Commissioner of the Department of Public Works) under a joint application form.

(c) The joint application form shall be as approved and amended from time to time by the Commissioner of the Department of Public Works and the Commissioner of the Department of Conservation and Cultural Affairs. Approval may be preceded by consultation with the public and interested persons.

(d) The joint application form shall request, and each application filed shall contain, such information, statements and supplementary data as are reasonably required to determine whether the project complies with all land and water use laws and regulations administered by the Departments of Public Works and Conservation and Cultural Affairs.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-13, 12 VI ADC § 910-13

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-14

910-14. Modification of Approved Coastal Zone Permits.

(a) An application for modification of the provisions of a Coastal Zone Permit shall be treated as a new application for a Coastal Zone Permit unless the Commissioner determines that such modification would not substantially alter or modify the scope, nature or characteristics of the existing permit or approved development.

(b) Where the Commissioner finds that such proposed modification would not substantially alter or modify the scope, nature or characteristics, the Committee may nevertheless impose such conditions to approval of the modification as it deems necessary to satisfy the provisions of the Act.

(c) The Commissioner may waive in whole or in part administrative processing fees and/or information requirements for processing such new application. He shall base such a waiver on the extent to which information or fees previously submitted are adequate for processing of the new application. (Section 910-4(d) and 910-5 set forth additional provisions relating to Coastal Zone Permit fees.)

Current through December 28, 2020

12 V.I. R. & Regs. § 910-14, 12 VI ADC § 910-14

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 910. Coastal Zone Permits

12 V.I. R. & Regs. § 910-15

910-15. Assignment and Transfer of Coastal Zone Permits.

(a) If an applicant transfers or assigns his interest in a development for which a Coastal Zone Permit has been applied, but not yet acted upon, a new permit application shall be required. The Commissioner may waive in whole or in part administrative processing fees, informational requirements and/or time limits for processing such an application if the development is substantially similar to the one for which the permit application is pending and no significant question appears concerning the capacity of the transferee or assignee to comply with any applicable permit conditions.

(b) Any person who has obtained a Coastal Zone Permit may request the Committee (in the case of a major permit), or the Commissioner (in the case of a minor permit) to assign or transfer such permit to another person. In order to assign or transfer a Coastal Zone Permit, the applicant must:

(1) Submit an application fee of $75.00 to the Director. (Only for assignment or transfer of a major Coastal Zone Permit.)

(2) File with the Director an affidavit executed by the assignee or transferee which attests to his promise to comply with the terms and conditions of the permit.

(3) File with the Director evidence of the assignee’s or transferee’s legal interest in the real property involved and of his capacity to satisfy the provisions of the permit. In the case of a transfer from a person who filed a voluntary petition in bankruptcy or a petition or answer seeking an arrangement or a reorganization or the readjustment of indebtedness under the federal bankruptcy laws or who was adjudged bankrupt under such laws or from a person against whom an order was made approving a petition filed by any of its creditors under such laws, the Director shall require copies of appropriate documents from the bankruptcy court.

(4) File with the Director the original permittee’s request to assign or transfer all rights to undertake the development to the assignee or transferee.

(5) Satisfy the Director that all conditions of the permit have been or are being complied with.

(c) The applicant for assignment or transfer shall submit the required documents to the Director together with a completed application form provided by the Director. The assignment shall be effective upon the Director’s written acceptance of the documentation submitted and written consent of the appropriate Committee or the Commissioner.

(d) No person except the permittee may perform or undertake development under the permit except by assignment or transfer of the permit pursuant to these regulations.

(e) An assignment or transfer of a Coastal Zone Permit shall be considered a modification of an approved Coastal Zone Permit subject to the provisions of section 910-14.

Current through December 28, 2020

12 V.I. R. & Regs. § 910-15, 12 VI ADC § 910-15

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 913. Enforcement

12 V.I. R. & Regs. § 913-1

913-1. Cease and Desist Orders.

(a) The Commissioner or the Committee may issue a written order directing any person to cease and desist from any activity which may constitute a violation of the Act. Said activities shall include but not be limited to the following:

(1) Undertaking, or in any manner threatening to undertake, any activity that may require a Coastal Zone Permit without first securing such a permit.

(2) Any activity which is inconsistent with or in violation of any provision of a Coastal Zone Permit.

(3) Failure to timely submit to the Committee or the Commissioner, in accordance with the provisions of a Coastal Zone Permit, any required information, or failure to submit such information in a complete and accurate fashion.

(b) A cease and desist order shall be effective upon issuance by the Committee or the Commissioner and shall be served by certified mail or by hand delivery upon the person or persons whose activity may constitute a violation of the Act, upon the permittee, and/or upon the owner of record of the property on which the violation has or will take place, or upon the agent or agents of any such person.

(c) A cease and desist order shall state the alleged violation and may state the steps necessary to ensure compliance with the Act including but not limited to the immediate removal of any fill or other material, or the setting of a time limit within which a Coastal Zone Permit shall have been applied for.

(d) A cease and desist order shall state the time and place for a hearing for the purpose of determining the facts relating to the alleged violation of the Act and of determining an appropriate remedy. The hearing shall be scheduled for a date no later than seven working days after issuance of the order, provided that a reasonable postponement may be granted on the request of the person to whom the order is directed. A hearing is required regardless of whether the person or persons whose activity is alleged to constitute a violation of the Act chooses to attend or be represented; Provided, That the hearing may be cancelled if the violation is remedied prior to the date of the hearing.

(e) In the case of a cease and desist order issued by the Commissioner, the Commissioner or his designee shall preside at the hearing; otherwise, the Chairman of the Committee or his designee (who shall be a member of the Committee) shall preside. If he deems it necessary, the presiding officer may arrange for a verbatim transcript of the hearing to be prepared.

(f) At any hearing the person or persons whose activity is alleged to constitute a violation of the Act shall have an opportunity to be heard, to present evidence, and to cross-examine witnesses.

(g) Promptly after the hearing, the presiding officer shall make his determination in writing, which shall be accompanied by findings of fact and conclusions of law in support thereof. In the case of a cease and desist order issued by the Committee, the Committee shall have an opportunity to review and amend said determination and the supporting findings and conclusions. Said determination, together with supporting findings and conclusions, shall be promptly served on all persons upon whom the cease and desist order was served and shall be made available to other interested persons. If the presiding officer determines that a violation has occurred, then the determination may also include:

(1) In the case of violation of an existing Coastal Zone Permit, an order that the violations be remedied by fulfilling the requirements and conditions of the permit (including restoration); or that an amendment to the Coastal Zone Permit be applied for;

(2) In the case of undertaking of activity without obtaining a Coastal Zone Permit, an order that application be made for a Coastal Zone Permit and/or that appropriate remedial action be taken at the site of the violation;

(3) A statement that the cease and desist order shall remain in effect until lifted by the presiding officer only after prescribed steps are taken which are designed to ensure compliance with the Act;

(4) A recommendation that a revocation proceeding be instituted (see section 913-2);

(5) A recommendation that violations be prosecuted by the Attorney General or other appropriate authority before the appropriate court or administrative tribunal (see section 913(c) of the Act); and

(6) Any other appropriate statement, order of remedial action, or recommendation.

If the presiding officer determines that there has been no violation of the Act, then the cease and desist order shall immediately terminate.

Current through December 28, 2020

12 V.I. R. & Regs. § 913-1, 12 VI ADC § 913-1

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 913. Enforcement

12 V.I. R. & Regs. § 913-2

913-2. Revocation of Coastal Zone Permits.

(a) Failure of a permittee or applicant to comply with the requirements of the Act, these regulations, or the provisions of a Coastal Zone Permit shall constitute grounds for revocation of the permit.

(b) When the Commissioner has reason to believe that grounds for revocation exist or upon the request of the Committee or the Commission to investigate whether such grounds exist, the Commissioner or his designee shall conduct an investigation if such investigation has not previously been conducted. If as a result of his investigation the Commissioner determines that grounds for revocation do exist, he shall schedule a public hearing of the Committee to consider the matter. Otherwise, the Commissioner or his designee shall report the results of the investigation to the Committee which may, on its own motion, determine that sufficient grounds exist to schedule a public hearing on the matter.

(c) Upon the Commissioner’s or the Committee’s determination to schedule a hearing, notice containing the following information shall be served by certified mail or hand delivery upon the permittee or his authorized agent or representative and shall be published in a newspaper of general circulation:

(1) Identification of the permit in question.

(2) The grounds which gave rise to the Commissioner’s or the Committee’s determination that a hearing should be held.

(3) The place of the hearing.

(4) The time of the hearing which shall be at least seven (7) working days after notice is served on the permittee.

(5) That failure of the permittee to appear or be represented at the hearing may result in a decision to revoke being rendered in his absence.

(d) The Chairman of the Committee or his designee (who shall be a member of the Committee) shall preside at the hearing, at which a quorum of the Committee shall be in attendance. The presiding officer shall cause a verbatim transcript of the hearing to be prepared.

(e) At the hearing, the permittee and the Commissioner or his designee shall each have an opportunity to be heard, to present evidence, and to cross-examine witnesses; the Committee shall have an opportunity to question witnesses.

(f) Promptly after the hearing, the Committee shall make its determination in writing, which shall be accompanied by findings of fact and conclusions of law in support thereof. Said determination, together with supporting findings and conclusions, shall be promptly served on the permittee. The Committee may determine either to revoke the permit or to take other appropriate action including but not limited to:

(1) Requiring the permittee to apply for an amendment to the permit;

(2) Ordering that violations of the permit be remedied by a particular date (including restoration);

(3) Ordering the permittee to cease and desist from further violations of the terms and conditions of the permit or of the Act or these regulations;

(4) Recommending that violations be prosecuted by the Attorney General or other appropriate authority before the appropriate court or administrative tribunal (see section 913(c) of the Act).

Current through December 28, 2020

12 V.I. R. & Regs. § 913-2, 12 VI ADC § 913-2

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 913. Enforcement

12 V.I. R. & Regs. § 913-3

913-3. Administrative Assessment of Civil Fines and Penalties.

(a) Purpose and Scope. This section implements Title 12, V.I. Code, chapter 21, section 913(c)(5) by establishing procedures for the administrative assessment of civil penalties for violations of the CZM Act. [FN1]

[FN1]

12 V.I.C. § 901 et seq.

(b) Authority. These regulations are promulgated pursuant to authority contained in Title 12, V.I. Code, chapter 21, section 913(c)(5).

(c) Definitions.

“Act” means the Coastal Zone Management Act, [FN1] as amended, or rules and regulations which implement the Act.

 [FN1]

12 V.I.C. § 901 et seq.

“Adjudication” means the Department’s process for formulating a final administrative decision.

“Commission” means the Coast Zone Management Commission, its St. Croix Committee, its St. John Committee or its St. Thomas Committee.

“Commissioner” means the Commissioner of the Department of Planning and Natural Resources.

“Conservation Enforcement Officer” means any person authorized to enforce the laws and regulations under the Act.

“Conservation ticket” means a form, prescribed by the Commissioner, upon which a Notice of Violation or Notice of Violation and Assessment may be written.

“Decision” means an initial or final decision of the Hearing Officer.

“Department” means the Department of Planning and Natural Resources.

“Final administrative decision” means an order or decision of the Department assessing a civil penalty or permit sanction which is not subject to further Departmental review under this subchapter and which is subject to collection proceedings and judicial review in an appropriate court, as authorized by law.

“Forfeiture” includes, but is not limited to, surrender or relinquishment of any claim to an item by written agreement or otherwise; or loss of any claim to, and transfer of title to an item to the Department by court order or by order of the Commissioner, pursuant to statute.

“Hearing Officer” means any person designated by the Commissioner to preside over hearings under this subchapter.

“Initial decision” means a decision of the Hearing Officer which, under applicable statute and regulation, is subject to review by the Commissioner, but which becomes the final administrative decision in the absence of such review.

“Notice of Violation (NOV)” means a written notice issued by a Conservation Enforcement Officer and which accuses a respondent of violation of the Act.

“Notice of Violation and Assessment (NOVA)” means a written notice issued by the Commissioner or his designate, which accuses a respondent of violation of the act and assesses a civil penalty for the violation.

“Party” means a respondent or the Department. Also, it includes, a joint and several respondent, vessel owner or permit holder and any other person allowed to participate in any hearing.

“Payment agreement” means any promissory note, security agreement, settlement agreement or other contract, specifying terms according to which a permit holder agrees to pay a civil penalty.

“Permit” means any license, permit, certificate or other approval issued by the Commission, Commissioner or Department pursuant to the CZM Act.

“Permittee” means the holder of a permit or any agent or employee of the permittee.

“Permitting” means the process for granting, revoking, renewing, denying or otherwise limiting, amending or conditioning a permit.

“Person” means any individual, corporation or governmental body, other than a party, competent to make an oath or affirmation, offer testimony and otherwise assist in the adjudication process.

“Respondent” means the person or entity accused of violation of the Act.

“Sanction” means suspension, revocation or modification of a permit; assessment of damages, including liquidated damages, reimbursement, restitution, compensation, costs, charges or fees; imposition of a penalty or fine; or taking other compulsory or restrictive action.

“Vessel owner” means the owner of any vessel that is liable in rem for any civil penalty under this subchapter, or whose permit may be subject to sanction as a result of civil penalty proceedings under this subchapter.

(d) Procedures.

(1) In general, the requirements of due process are met when the responding party is afforded:

(A) Timely and adequate notice;

(B) A hearing or other opportunity to confront adverse witnesses and present oral evidence on his own behalf;

(C) The right to be accompanied, represented and advised by counsel or other representative;

(D) A determination or decision based solely on the record and that identifies the evidence relied upon and specifies the reasons for the decision;

(E) An impartial decision-maker.

(e) Written Warnings.

(1) A written warning may be issued, in lieu of other law enforcement action that could be taken for violation of the Act, by any person authorized to enforce the laws and regulations under the Act. The written warning shall:

(A) state that it is a written warning;

(B) state the factual and statutory or regulatory basis for its issuance;

(C) advise the violator of its effect in the event of a future violation;

(D) state that the warning is kept on file for reference in determining the appropriate legal or administrative action to take if there is a subsequent violation;

(E) inform the violator of the right of review and appeal under subsection (s).

(2) The Department will maintain a record of written warnings that are issued.

(3) If, within 120 days of the date of service of the written warning, further investigation discloses a prior written warning to or violation by the respondent for the same offense within three (3) years from the date of service, or that the violation is more serious than realized at the time the written warning was served, the Department may withdraw the warning and commence any other enforcement which may be taken under the Act.

(4) The written warning will be noted on the face of and attached to all Coastal Zone Permits issued, transferred or assigned to the respondent.

(5) A violation is considered to be minor if:

(A) no watercourses or trustlands are disturbed or impacted by activity which is the subject of the NOV;

(B) no fill or debris is placed upon land area greater than 200 square feet;

(C) it involves an earth change of no more than 200 square feet;

(D) it involves a structure covering land area no more than 200 square feet, not exceeding a height of ten (10) feet above ground level or above the height of any structure to which it is attached, or is placed in the earth to a depth of no more than twelve (12) inches.

(6) A violation is of a technical nature if:

(A) it involves activity, not including development, which is required by a permit issued to the respondent, but which the respondent has failed to do; or

(B) it involves development pursuant to a CZM permit, performed after and within 30 days of the expiration of the permit.

(7) An NOV may be appealed as follows:

(A) Within 30 days of service of the NOV, a written request seeking review must be addressed to the Commissioner and delivered to the Office of the Commissioner at the main office of the Department.

(B) The request must present the facts and circumstances that explain or deny the violation described in the NOV.

(8) The Commissioner may, in his or her discretion, affirm, expunge or modify the NOV and will notify the person of the decision in writing. The decision constitutes the final agency action.

(f) Notice of Violation and Assessment.

(1) A Notice of Violation and Assessment (NOVA) is issued by the Commissioner or his designate and served personally or by mail, return receipt requested, upon each respondent. A copy of the NOVA is similarly served upon the permit holder, if the holder is not the respondent. The NOVA is required to contain:

(A) A concise statement of the facts believed to show a violation;

(B) specific reference to the provisions of the Act, regulation, permit, or order allegedly violated;

(C) the findings and conclusions upon which the Department bases the assessment;

(D) the amount of the civil penalty assessed; and

(E) a copy of the regulations in this section governing the proceedings.

The NOVA is also required to advise the respondent of his rights upon receipt of the NOVA.

(2) In assessing a civil penalty, the Department takes into account information available to the Department concerning any factor to be considered under the applicable statute, and any other information that justice or the purposes of the statute requires.

(g) Procedure Upon Receipt of a NOVA.

(1) The respondent has thirty (30) days from the receipt of the NOVA in which to respond. During this time the respondent may:

(A) Accept the penalty by taking the actions specified in the NOVA;

(B) Seek to have the NOVA amended, modified, or rescinded under clause (2) of this subsection;

(C) Request a hearing under clause (5) of this subsection;

(D) Request an extension of time under clause (3) of this subsection; or

(E) Take no action, in which case the NOVA becomes final in accordance with subsection (h) of this section.

(2) The respondent or the permit holder may seek amendment or modification of the NOVA to conform with the facts or law as that person sees them by notifying the Department’s official specified in the NOVA. Where amendment or modification is sought, the Department’s official will either amend the NOVA or decline to amend it, and so notify the respondent or permit holder, as appropriate, in writing.

(3) The respondent, within the 30-day period specified in clause (1) of this subsection, may request an extension of time to respond. The Department’s official may grant an extension of up to 30 days, unless the official determines that the respondent could, exercising reasonable diligence, respond within the 30-day period.

Where the Department’s official does not respond to the request within 72 hours of its receipt, the request is granted automatically for the extension requested, up to a maximum of 30 days. A response to the request by telephone within 72 hours of receipt followed by a written confirmation is an effective response.

(4) The Department’s official may, for good cause, grant an additional extension beyond the 30-day period specified in clause (3) of this subsection.

(5) Where the respondent or the permittee desires a hearing, he shall mail to the address specified in the NOVA or serve in person a written and dated request. The request shall include a copy of the NOVA or refer to the relevant Coastal Zone Management case number. The Department’s official shall promptly forward the request for hearing to the Commissioner for scheduling.

(6) Any denial, in whole or in part, of any request under this subsection that is based on untimeliness is required to be in writing.

(h) Final Departmental Decision.

(1) If no request for hearing is timely filed, as provided in subsection (g)(1)(C) of this section, the NOVA becomes effective as the final administrative decision and order of the Department of Planning and Natural Resources on the 30th day after service of the NOVA or on the last day of any delay period granted.

(2) Where a request for hearing is timely filed in accordance with subsection (g)(1)(C) of this section, the date of the Final Departmental Decision is 30 days after service of the written decision upon the respondent.

(i) Payment of Final Assessment.

(1) Respondent shall make full payment of the Civil Penalty assessed within 30 days of the date upon which the assessment becomes effective as the Final Departmental Decision and Order of the Department of Planning and Natural Resources. The respondent is required to mail or deliver to the Department a certified check or money order made payable in United States currency the amount of the assessment to the Department of Planning and Natural Resources.

(2) Upon any failure to pay the civil penalty assessed, the Department may request the Department of Justice to recover the amount assessed in the Territorial or District Court of the Virgin Islands, or may act under subsection (j) of this section.

(j) Compromise of Civil Penalty. The Department, in its sole discretion, may compromise, modify, remit, or mitigate with or without conditions, any civil penalty imposed, or which is subject to imposition.

(k) Factors Considered in Assessing Penalties.

(1) Factors to be taken into account in assessing a penalty may include the nature, circumstances, extent, and gravity of the alleged violation; the respondent’s degree of culpability, any history of prior offenses; and such other matters as justice may require.

(l) Administrative Hearing.

(1) Scope of Applicability. This section sets forth the procedures governing the conduct of hearings and the issuance of initial and final decisions of the Department of Planning and Natural Resources in administrative proceedings involving alleged violations of the Act and its implementing regulations.

(m) Case Docketing. Each request for hearing, promptly upon its receipt for filing in the Office of the Commissioner, is assigned a docket number and, thereafter, the proceeding is referred to by this number. Written assignment of a hearing to a hearing officer and notice of date, time and place of the hearing are promptly given to the parties.

(n) Duties and Powers of the Hearing Officer. The hearing officer is designated by the Commissioner and has all powers and responsibilities necessary to preside over the parties and the proceeding, to hold pre-hearing conferences, to conduct the hearing, and to make the decision in accordance with these regulations, including but not limited to, the authority and duty to do the following:

(1) To rule on a request to participate as a party in the proceeding by allowing, denying or limiting the participation (the ruling considers the views of the parties and is based on whether the requester can be expected to contribute materially to the disposition of the proceedings);

(2) to schedule the time, place and manner of conducting the hearing, to continue or adjourn the hearing to a later date or different place, and reopen the hearing at any time before issuance of the decision, all in the hearing officer’s discretion, having due regard for the convenience and necessity of the parties and witnesses;

(3) to schedule and regulate the course of the hearing and the conduct of the participants;

(4) to administer oaths and affirmations to witnesses;

(5) to rule on motions, procedural requests, and similar matters;

(6) to examine and cross-examine witnesses and introduce into the record on the hearing official’s own initiative, documentary or other evidence;

(7) to rule on requests for appearance of witnesses or production of documents or requests for admissions and take appropriate action upon failure of a party to effect the appearance or production of a witness or document ruled relevant and necessary to the proceedings; as authorized by law, issue subpoenas for the appearance of witnesses or production of documents;

(8) to take official notice of any matter not appearing in evidence that is among traditional matters of judicial notice; or technical or scientific facts within the general specialized knowledge of the Department of Planning and Natural Resources as an expert body; or any reasonably available public document on condition that the parties are advised of the matter noticed;

(9) to prepare and submit a decision or other appropriate disposition document and certify the record;

(10) to grant preliminary or interim relief.

(o) Disqualification of Hearing Official.

(1) The hearing official may withdraw from a particular case when the hearing official considers himself disqualified.

(2) A party may in good faith request the hearing officer to withdraw on the ground of personal bias or other disqualification. The party seeking the disqualification is required to file with the hearing officer a timely affidavit or statement setting forth in detail the facts alleged to constitute the grounds for disqualification, and the hearing officer is required to rule on the matter. If the hearing officer rules against disqualification, the hearing officer is required to place all matters relating to such claims of disqualification in the record.

(p) Appearances.

(1) A party may appear in person or by or with counsel or other representative.

(2) Where a party fails to appear after proper notice, the hearing officer may consider the failure of the party to appeal a waiver of any right to a hearing and consent to the making of a decision on the record.

(q) Conduct of the Hearing. The hearing officer shall provide the respondent with an opportunity for a fair, open and impartial hearing. The respondent has the right and the hearing officer is required to afford the opportunity to defend and meet the claims or allegations of violations by argument, proof, and cross-examination of witnesses. The hearing officer shall make findings of fact and conclusions of law and enter an order in accordance with the facts proved at the hearing. The Department, in accordance with well-settled law, is not held to strict conformity with judicial procedure required in a court of law and a hearing may be fair even though informal or summary. However, the hearing officer shall provide a hearing in which ample opportunity is given to all parties to make, by evidence and argument, a showing fairly adequate to establish, from a standpoint of justice, the steps asked to be taken. The hearing officer, before entering his order on the basis of the record and recommendations, shall provide opportunity to the parties to submit for his consideration exceptions to the recommended findings or conclusions and supporting reasons for the exceptions, such submission to be made within ten (10) days of issuance. The hearing officer shall issue written notice of this order to the respondent. The order of the hearing officer is final and binding on all parties unless appealed or otherwise presented for judicial review to the courts within thirty (30) days after notice has been sent to the respondent.

(r) Initial and Final Decisions.

(1) The hearing officer shall issue a written decision upon the record in the case, setting forth:

(A) Findings and conclusions, and the reasons or basis for them on all matters of fact, law or discretion presented in the record, and the rulings on any proposed findings or conclusions presented by the parties;

(B) a statement of facts noticed or relied upon in the decision; and

(C) such other matters as the hearing officer considers appropriate.

(2) The hearing officer may at the termination of the hearing announce the decision, subject to later issuance of a written decision under paragraph (A) of clause (1).

(3) The hearing officer shall serve the written decision on each of the parties personally or by mail, return receipt requested and shall promptly certify to the Commissioner the record including the original copy of the decision as complete and accurate.

(4) Unless the hearing officer orders a stay or unless a petition for discretionary review is filed or the Commissioner issues an order to review upon his own initiative, an initial decision becomes effective as the final administrative decision of the Department of Planning and Natural Resources thirty (30) days after service.

(s) Administrative Review of Decision.

(1) Subject to the requirements of this section, any party may petition for review of an initial decision of the hearing officer within thirty (30) days after the date the decision is served. The petitioner shall address the petition to the Commissioner and file at the main office of the Department of Planning and Natural Resources.

(2) Review by the Commissioner of an initial decision is discretionary and is not a matter of right. A petition for review is to be served upon all parties. Where a party files a timely petition for discretionary review, or action to review is taken by the Commissioner upon his own initiative, the effectiveness of the initial decision is stayed until further order of the Commissioner.

(3) Petitions for discretionary review may be filed only upon one or more of the following grounds:

(A) A finding of a material fact is clearly erroneous based upon the evidence in the record;

(B) a necessary legal conclusion is contrary to law or precedent;

(C) a substantial and important question of law, policy or discretion is involved including the amount of the civil penalty; or

(D) a prejudicial procedural error has occurred.

(4) Each issue is required to be separately numbered, concisely stated, and supported by detailed citations to the record, statutes, and regulations. Issues of law or fact not argued before the hearing official may not be raised on review unless they were raised for the first time in the initial decision or could not reasonably have been foreseen and raised by the parties during the hearing. The Commissioner shall not consider new or additional evidence that is not a part of the record before the hearing officer.

(5) No oral argument on petitions for discretionary review is allowed.

(6) Where the Commissioner declines to exercise discretionary review, the order is served on all parties personally or by mail, return receipt requested, and specifies the date upon which the hearing officer’s decision becomes effective as the final decision of the Department of Planning and Natural Resources. The Commissioner need not give reasons for declining review.

(7) Where the Commissioner grants a petition for discretionary review, he issues an order specifying the issues to be argued in written form and the date by which written arguments are to be filed. No oral argument is permitted.

(8) After the expiration date for filing briefs under clause (7) of this subsection, the Commissioner shall transmit the decision to each of the parties either personally or by mail, return receipt requested. The Commissioner’s decision becomes the final administrative decision on the date it is served, unless otherwise provided in the decision.

Current through December 28, 2020

12 V.I. R. & Regs. § 913-3, 12 VI ADC § 913-3

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-1

914-1. Purpose and Construction of Regulations.

These regulations are promulgated pursuant to section 914, chapter 21, Title 12 of the Virgin Islands Code, as amended (“Statute”).

These regulations are intended to establish uniform and coordinated procedures for the administration of the Statute. The interpretation and application of these regulations shall be consistent with the policies and mandates of the Statute and construed to secure the just, speedy, and inexpensive determination of every controversy.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-1, 12 VI ADC § 914-1

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-2

914-2. Definitions.

(a) “Aggrieved person” means any natural person, association, or legal entity who has:

(i) appeared in person or through a representative,

(ii) or has, in writing, indicated its interest in an application for a major or minor coastal zone permit made under the statute and has been adversely affected by a decision by the Coastal Zone Management Commission (“Commission”), a Committee of the Commission (“Committee”), or the Commissioner of Conservation and Cultural Affairs (“Commissioner”) in connection with such application.

(b) “Appellant” means an aggrieved person or applicant who has a right to appeal to the Board of Land Use Appeals (“Board”) under Title 12 V.I.C. § 914 and files a Petition for Appeal.

(c) “Applicant” means any natural person, association, or other legal entity which has applied for a major or a minor coastal zone permit.

(d) “Authority-below” means the Commission, Committee, or the Commissioner who rendered a decision in connection with an application for a major or a minor coastal zone permit, and whose decision is final and conclusive upon the applicant.

(e) “Appeal” means an appeal of the decision-below taken by an appellant to the Board. In an appeal, the Board is restricted to a review of the decision-below based on evidence tendered in the proceeding-below and arguments of the appellants, intervenors and the authority-below.

(f) “Decision-below” means any decision of an authority-below which is final and conclusive upon an applicant.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-2, 12 VI ADC § 914-2

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-3

914-3. What is Reviewable.

The Board may review any decision-below in which the findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional, Organic Act of 1954, or statutory provisions;

(b) in excess of the statutory authority of the Commission, Committee, or Commissioner,

(c) made upon unlawful procedure,

(d) affected by other error of law,

(e) erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-3, 12 VI ADC § 914-3

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-4

914-4. Who May Appeal.

Any applicant or aggrieved person alleging a legal wrong because of a decision-below or adversely affected by the decision-below on matters within the statute is entitled to appeal that decision.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-4, 12 VI ADC § 914-4

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-5

914-5. Time.

(a) Time Within Which To File an Appeal: A Petition for an Appeal is effective if filed with the Chairman, Administrative Officer, or Counsel of the Board within forty-five (45) calendar days after the decision-below has been rendered in written form, is final and conclusive as to the applicant, and has been served on the applicant by personal delivery or by mail to his last known address.

(b) Continuances and Enlargement: In order to secure a just and speedy determination of any controversy brought before the Board, all parties have a significant burden in proving the need for any continuance of enlargement of time.

(c) Construction of Time Provision: To assure fairness to all aggrieved persons or applicants, the time provision of 12 V.I.C. § 914 shall be construed by the Board as directory rather than as mandatory.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-5, 12 VI ADC § 914-5

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-6

914-6. The Record.

The original papers and exhibits filed in the proceeding-below and the transcript in the proceeding-below constitute the record.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-6, 12 VI ADC § 914-6

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-7

914-7. Control of Appeal Proceeding.

The Chairman of the Board shall preside at all appeal proceedings of the Board, shall open and close the proceeding, swear in witnesses, make all rulings of evidence, and in general, superintend the entire conduct of the hearing.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-7, 12 VI ADC § 914-7

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-8

914-8. Consolidation of Controversies.

When controversies involving a common question of law or of fact or when multiple proceedings involving the same party or parties having substantially identical interests are pending, the Board may order a joint hearing of any or all matters in issue, may order all controversies consolidated, or may make such other orders concerning the proceedings as may be convenient or may tend to avoid unnecessary costs or delay.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-8, 12 VI ADC § 914-8

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-9

914-9. Amicus Curiae.

The Board may, in its discretion, permit an amicus curiae to file briefs or appear on oral argument on such terms and conditions as the Board determines. To insure an orderly presentation, the Board may align an amicus curiae on the side of the appellant or the authority-below.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-9, 12 VI ADC § 914-9

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-10

914-10. Pre-hearing Conference.

If deemed required or desirable, the Board may order all parties before it to a pre-hearing conference to narrow and specify the facts or issues to be presented and to dispose of such other matters as may be conveniently handled prior to the hearing.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-10, 12 VI ADC § 914-10

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-11

914-11. Decisions of the Board.

(a) Bases and Form: All decisions of the Board shall be based on the record of the proceedings below. Decisions of the Board shall be in writing and shall state its findings of fact, conclusions of law, and the decision.

(b) Vote Required for Decision: A concurring vote of a majority of the members of the Board then in office shall determine every final decision rendered by the Board.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-11, 12 VI ADC § 914-11

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-12

914-12. Rule of Decision.

Where these rules fail to provide sufficient guidance to the Board, the Board shall be guided by the Federal Rules of Evidence on evidentiary matters, and by the Federal Rules of Appellate Procedure insofar as practicable and in conformity with the general principles of due process.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-12, 12 VI ADC § 914-12

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-13

914-13. Governing Law.

The Board shall be first governed by the statutory and decisional law of the Virgin Islands, the Restatement of Law, the decisional law of the Third Circuit Court of Appeals, the co-ordinant District Courts within the Third Circuit, and the United States Supreme Court. Persuasive Authority shall be any other decision by any other U.S. Circuit Court of Appeals, U.S. District Court, and the state or other territorial court decisions, in the order of listing.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-13, 12 VI ADC § 914-13

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-14

914-14. Appeals to the District Court for the Virgin Islands.

If any decision of the Board is appealed to the District Court for the Virgin Islands, then the appellant is responsible for the costs of reproducing the record, pending any further order of the District Court.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-14, 12 VI ADC § 914-14

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-15

914-15. Petition for Appeal.

The appellant shall file with the Board nine (9) copies of its Petition for Appeal. Such Petition shall contain:

(a) Name(s) of appellant and authority-below.

(b) Name, address, and phone number of the legal representative of the appellant.

(c) A copy of the decision appealed from.

(d) A short and plain statement of the facts relied upon to assert a legal wrong in the decision-below, or in lieu thereof, a statement that there exists no genuine issues of material fact and an offer to make a written statement of the facts material and relevant to a review.

(e) A short plain statement of the legal principles relied upon to assert a legal wrong in the decision-below.

(f) A statement that the transcript of the record below, if made, has been ordered and directed to be delivered to the Board.

(g) A certificate that such a notice has been personally delivered or sent to the authority-below by mail.

Where known, the appellant shall also submit the names and addresses of other aggrieved persons.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-15, 12 VI ADC § 914-15

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-16

914-16. Notice of Hearing.

In addition to public notice, personal notice of public hearings shall be served on the authority-below, the applicant and aggrieved persons, any person who has requested in writing to be notified of such public hearing date, and any person who testified at any public hearing held by the authority-below, not less than twenty (20) days prior to such hearing.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-16, 12 VI ADC § 914-16

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-17

914-17. Petition to Intervene.

Any aggrieved person or applicant may intervene in an appeal by filing a petition with the Board not less than ten (10) days prior to the public hearing.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-17, 12 VI ADC § 914-17

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-18

914-18. Argument.

(a) Order and Content of Argument: The appellant is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case.

(b) Submission on Briefs: By agreement of the parties and with the consent of the Board, an Appeal may be submitted for decision on the briefs.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-18, 12 VI ADC § 914-18

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-19

914-19. Non-parties.

No person who is not an appellant, intervenor or the authority-below may participate in the hearing proceeding. Any other person, with the permission of the Board, may address the Board on any matter presently before it, but only after the record of the proceeding has been closed.

Current through December 28, 2020

12 V.I. R. & Regs. § 914-19, 12 VI ADC § 914-19

Virgin Islands Administrative Code ^Currentness

Title 12. Conservation

Chapter 21. Virgin Islands Coastal Zone Management

Subchapter 914. Board of Land Use Appeals

12 V.I. R. & Regs. § 914-20

914-20. Effective Date.

Prior to the effective date of these regulations the Board shall use these regulations as guidance in the conduct of hearings and appeals filed as of the date of approval of these regulations.