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What is Federal Consistency?

Federal consistency is a review process that coastal states with federally approved coastal programs undertake, every time a federal activity is proposed in that state's Coastal Zone. The review process is usually triggered under three circumstances; when the federal activity is proposed by a federal agency, when a federal permit is needed for a proposed project, or when a project receives federal assistance (e.g. funding).

Review for federal consistency can also take place outside of the Coastal Zone if the proposed activity will have an effect on coastal resources and uses within the Coastal Zone boundary. For more information, visit Where Federal Consistency Applies.

Federal consistency review also occurs for outer continental shelf activities in areas that have been leased for oil and gas exploration/development or production. The outer continental shelf is not inside of Oregon’s Coastal Zone, but by law, Oregon's Coastal Management Program has authority to review these activities.

In the simplest terms, the federal consistency review process ensures that Oregon's interests are taken into account when the federal government proposes an activity, would like to permit an activity, or would like to provide assistance for an activity within the coastal zone.

The review process provides an opportunity for Oregon and the federal action agency, applicant for a federal permit, or federal assistance recipient to work together. It fosters cooperation and coordination between coastal states and the federal government, and assures Oregon, and all coastal states, a voice in federal decision-making that may affect coastal uses or resources.

Coastal effects include impacts in five major categories: natural resources, cultural resources, coastal economies, aesthetics, and recreation/public access. The review includes evaluation of direct and indirect impacts, including consideration of cumulative (impacts that add up) and secondary impacts (impacts that occur later in time or farther removed in distance) in or outside of the coastal zone that have 'reasonably foreseeable effects' on coastal resources or uses.

The review process is part of the Coastal Zone Management Act of 1972. The U.S. Congress passed the Act to address competing uses and resource impacts occurring in the nation's coastal areas. The Act included several incentives that encouraged coastal states to develop coastal management programs. One incentive was a legal authority called "federal consistency," which was granted to coastal states with federally-approved coastal management programs.

In Oregon, the Oregon Coastal Management Program within DLCD has the responsibility and authority to make federal consistency decisions. Decisions agree or object to the proposed federal activity based on an analysis of how 'consistent' the project is with the state’s management program.

The review process varies depending on the proposed activity.

Direct federal actions are activities performed by or on behalf of a federal agency, such as building a road, dredging a federal navigation channel, or repairing a jetty. A special class of federal permits issued by federal agencies called 'general permits' also use this review process. Federal agencies seeking a federal permit also use this process. Federal agencies make the initial determination of whether a proposed action will affect coastal uses or resources and request state concurrence with that determination. If you are a federal agency looking for detailed guidance about the type of determinations available to you or on the review process, please see the Guidance for Federal Action Agencies page.

At-a-glance, the process looks like this:

  1. DLCD receives a federal consistency determination from the federal agency.
  2. DLCD has 14-days to perform a completeness review.
  3. If the submittal is not complete, the 60-day review period begins after DLCD receives the information that was initially missing. Otherwise, review starts on the day the submittal was received.
  4. The review period includes a 30-day public comment period.
  5. DLCD has an automatic 15-day extension for review, if needed. The federal agency and DLCD may negotiate a different timeline.
  6. DLCD issues a federal consistency decision. The decision could be a concurrence (DLCD and the federal agency agree), a concurrence with conditions (the federal agency may proceed with the project if certain conditions are met), or an objection (DLCD will not allow the work or project to proceed).
  7. In the event of disagreements, DLCD and the federal agency may enter informal negotiations or formal mediation to find resolution.

In the coastal zone, projects that need a federal permit or license must go through a review for federal consistency to ensure the federal permitting agency is acting consistent with the State's interests. Examples include any development project that impacts wetlands or waterways like docks, boat ramps, marina maintenance, culvert and bridge maintenance and installation. Applicants must sign a certification statement that says they are implementing the project in a way that is consistent with the OCMP and must also submit an application to DLCD. For smaller to medium projects, applicants have the option to use DLCD's application form. DLCD encourages applicants for large projects that may have significant coastal effects to contact DLCD early in the planning process to identify major obstacles or for clarification regarding what is needed for the application.

If you are a federal permit/license applicant looking for detailed guidance on the review process, including information on how to interact with DLCD during the Corp's Nationwide Permit process, please see the Guidance for Federal Permit Applicants page.

At-a-glance, the process looks like this:

  1. DLCD receives a federal consistency certification statement and federal consistency application from the applicant.
  2. DLCD has 30-days to perform a completeness review. If the application is complete, a 180-day (6 month) review period begins.
  3. If the submittal is not complete, the 180-day review period begins after DLCD receives the information that was initially missing. Otherwise, the 180-day review starts on the day the submittal was received.
  4. The review period includes a 30-day public comment period.
  5. If DLCD does not have all the necessary information to make a decision within 6 months a stay agreement is signed or DLCD may issue an objection.
  6. During review, DLCD, the applicant, and the federal permitting agency work together to make sure federal and management program requirements are met.
  7. When all needed documents are submitted to DLCD, including any state and local permits, DLCD issues a federal consistency decision, which may be a concurrence (proceed), a concurrence with conditions (proceed with conditions to permit), or an objection (federal permit/license may not be issued).
  8. Any conditions provided with the concurrence are incorporated into the federal permit/license.
  9. If conditions are not incorporated into the permit/license the decision becomes an objection.
  10. If the applicant's project receives an objection, the applicant and/or the Federal Agency has 30-days to file an appeal with the U.S. Secretary of Commerce to request the Secretary override the objection.

Federal assistance provided to state and local governments or related public entities goes through a review for federal consistency as well. Federal assistance includes grants, loans, subsidies, insurance, or other forms of financial aid. On a fundamental level, DLCD supports federal assistance for projects in the Coastal Zone.

It is also common for federal assistance to be awarded in advance of detailed project plans. If a project using federal assistance will also apply for a federal permit, DLCD may choose to conduct the federal consistency review then, when project impacts and related coastal effects are better understood. At that time, the project applicant will follow the review process for federal permits.

At-a-glance, the review process for federal assistance looks like this:

  1. The recipient of federal assistance or the federal assistance agency coordinates with DLCD about whether review is necessary.
  2. If so, DLCD receives a copy of the federal assistance application and a brief description of any coastal impacts the assistance may have.
  3. DLCD's review begins.
  4. DLCD issues a federal consistency decision within 180 days, which may be a concurrence, a concurrence with conditions, or an objection.
  5. DLCD often provides a letter stating no objection to the assistance and that if the activity needs a federal permit/license will conduct a full federal consistency review at that time.
  6. In the event DLCD and the federal agency disagree about whether review should occur for the federal assistance activity, DLCD and the federal agency may enter informal negotiations or formal mediation to find resolution.

To date, Oregon has never reviewed an Outer Continental Shelf Plan for oil or gas exploration/development or production. We are reviewing our management program to ensure we are prepared for this proposed activity if a lease is granted. Outer Continental Shelf activities must be fully consistent with the enforceable policies of the OCMP.

Federal consistency review does not take place at time of lease sale. Review is initiated when an Outer Continental Shelf Plan is submitted to the Secretary of the Interior.

Analyzing a proposed activity for consistency is the most complicated aspect of the review process. The National Oceanic and Atmospheric Administration (NOAA)-approved management program contains specific policies that have been selected from existing state law, the statewide planning goals, and local comprehensive plans and ordinances. Together, these specific policies are called enforceable policies. The proposed activity must demonstrate consistency, explaining how the activity lines up with the enforceable policies that apply to it. DLCD helps applicants going through the federal consistency review process understand which enforceable policies apply to their activity. Enforceable policies are routinely updated with NOAA so that the most recent state law and local authorities are incorporated into Oregon's federally-approved management program. You can learn more about how enforceable policies are selected for the program and see a list of current policies on the enforceable policies page.

Federal consistency reviews involve a public comment opportunity that is typically 30 days long. The agency also consults with our program partners, federal agencies and tribes. Comments are most useful when:

  • They are specific. Simply being for or against a project is less helpful than describing why a project is not consistent with the policies of the Program.
  • They describe reasonably foreseeable impacts to coastal resources and uses. Impacts to recreation public access, natural resources, cultural resources, economies, and aesthetics can be included.
  • They point to specific enforceable policies that commenters believe the proposed project is or is not in line with in order to be consistent with the program.

To be notified of future public notices, please sign up on the DLCD Federal Consistency Listserv.

To see current public notices, please visit the OCMP's public notice page.

The NOAA Federal Consistency Overview and the Federal Consistency Regulations (15 C.F.R. part 930) provide additional detailed information on federal consistency and the consistency review process.

Contact

Elizabeth Ruther
Coastal State-Federal Relations Coordinator
elizabeth.j.ruther@state.or.us
Phone: 503-934-0029

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