Section 34-0108. Rules and regulations

1. After consultation with affected state agencies and representatives
  of local governments, and after conducting public hearings and review of
  any  other  comments  submitted,  the commissioner shall adopt rules and
  regulations implementing the  provisions  of  this  article  within  one
  hundred eighty days after the effective date hereof.
    2. The rules and regulations adopted by the commissioner shall include
  a  procedure  pursuant  to  which any owner of land in an erosion hazard
  area identified pursuant to section 34-0104 of this article  may  appeal
  from  the  inclusion  of  such  land in such erosion hazard area.   Such
  procedure shall provide that the sole basis for  such  appeal  shall  be
  technical  information  indicating either (a) that the long-term average
  annual recession or other method used in identifying the erosion  hazard
  area was incorrect, or (b) that an area has been identified as a natural
  protective area erroneously, and that the commissioner shall decide such
  appeal  within  thirty  days after receipt thereof, and shall adjust the
  boundaries of the identified erosion hazard area or  identified  natural
  protective features accordingly.
    3.  The  rules and regulations adopted by the commissioner pursuant to
  sections 34-0105, 34-0106 and 34-0107 of this  article  shall  establish
  minimum   standards   and  criteria  to  be  applied  to  activities  or
  development in erosion hazard areas. Such standards and  criteria  shall
  be used to deny, condition or modify a proposed action, if necessary, to
  implement  the  policies  and  purposes  of  this article. Standards and
  criteria promulgated pursuant to this section shall  include  but  shall
  not be limited to:
    (a) minimum setback requirements for structures within coastal erosion
  hazard  areas taking into consideration recession rates, the useful life
  of the proposed  structure,  and  the  protection  afforded  by  natural
  protective features and existing erosion protection structures.
    (b)  regulation  of  activities or development, including placement of
  erosion protection structures or use of non-structural measures so there
  will be no measurable increase in erosion to the development site or  at
  other locations.
    (c)  regulation  of  activities or development, including placement of
  erosion protection structures, so as to minimize  adverse  effects  upon
  natural  protective  features, existing erosion protection structures or
  natural resources, such as significant fish and wildlife habitat.
    (d) standards and  criteria  shall  provide  that  erosion  protection
  structures  that  are  proposed for construction or reconstruction shall
  have a reasonable probability of controlling long-term  erosion  on  the
  immediate  site  for  a  period  of  at  least  thirty  years and that a
  long-term maintenance program is provided for such  structures;  however
  such  standards and criteria may allow for such protection structures to
  be constructed of materials which by themselves have a working  life  of
  less  than  thirty years, when the maintenance program assures that they
  will be regularly maintained and replaced as  necessary  to  attain  the
  required thirty years of erosion protection.
    (e)  restoration  and stabilization standards for activities which are
  to be undertaken in connection with activities or development to  insure
  that  land areas are maintained and where necessary restored to minimize
  erosion on the site or to other nearby lands.
    4. The rules and regulations shall provide procedure pursuant to which
  the strict application of their standards and criteria may be varied  or
  modified  in cases where practical difficulty or unnecessary hardship is
  shown, provided that  in  granting  any  such  variance,  the  following
  criteria are met:

    (a) for any proposed activities and development where public funds are
  utilized  the  public  benefits  clearly outweigh the long-range adverse
  effects.
    (b) no reasonable prudent alternative site is available.
    (c)  all responsible means and measures to mitigate adverse impacts on
  natural systems in the area have  been  incorporated  into  the  project
  design and will be implemented at the developer's expense.
    (d)  the  development  will  be reasonably safe from flood and erosion
  damage.
    (e) the variance provided will be the minimum  necessary  to  overcome
  the practical difficulty or unnecessary hardship which was the basis for
  requesting such variance.
    5.  Notwithstanding section 34-0105 or 34-0106 of this article, in the
  case of any department, bureau, commission, board or other agency of the
  state, or any  public  benefit  corporation,  any  member  of  which  is
  appointed  by  the  governor,  a  permit  shall  be  obtained  from  the
  department  pursuant  to  section  34-0109  of  this  article  provided,
  however,  in cases where there is a local law or ordinance in effect the
  commissioner shall make a finding prior to the issuance  of  the  permit
  that  the  conditions  of  such  local  law  or ordinance have been met,
  insofar as such conditions relate to the standards and criteria  adopted
  pursuant to section 34-0108 of this article.