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Guidance for Federal Action Agencies

**This page is written specifically to help federal agencies with the review for federal consistency. If you are seeking a federal permit or license and must go through review, go to the Guidance for Federal Permit Applicants page.

In Oregon, federal agencies implementing an activity in the coastal zone, seeking a federal permit, or issuing a general permit should use the review process outlined on this page. For more detail, please see Subpart C of 15 CFR ยง 930. Federal agencies are responsible for determining whether their activity will have reasonably foreseeable coastal effects.

At least 90 days before the federal activity receives final approval, the federal agency must submit a final consistency determination to DLCD. DLCD has 60 days to review the determination, which includes a 30 day public comment period. DLCD also has 14 days from receipt of the determination to request missing information. Before a Consistency Determination is submitted, DLCD is able to review a draft determination and encourages coordination between DLCD and the applicant as early as possible in case the activity could be modified in order to better align with the Oregon Coastal Management Program's enforceable policies.Federal Action Workflow diagram

For activities other than development activities, the federal agency reviews the project to determine whether the activity affects any coastal use or resource. There are several types of determinations available to federal agencies:

  1. Consistency Determination: For a single activity.
  2. General Consistency Determination: For repeated activities other than development activity.
  3. Phased Consistency Determination: For activities where decisions are made in phases (e.g. planning, siting, and design).
  4. National/Regional Consistency Determination: For activities national/regional in scope.
  5. Negative Determination: For activities that have no reasonably foreseeable coastal effects.

Federal agencies are required to be thoughtful and thorough in their consideration of consistency determinations. Most projects and programs will have at least some effects on the Ocean Coastal Zone, even if small in scale or brief in duration. It should be assumed that every federal activity will have to be reviewed for consistency. Negative determinations and other 'no effects' determinations are used under specific and very limited circumstances. These are defined in the federal regulations.

A federal agency has the option to create a list of activities that are expected to have insignificant direct or indirect coastal effects called a De Minimis Activities List. DLCD must concur that the activities are de minimis for the activities to be excluded from further federal consistency review. DLCD must provide an opportunity for public participation while reviewing the request.

Lastly, if a federal agency determines that an activity or category of activities protects, preserves, or restores the natural resources of the coastal zone, they may submit an Environmental Benefits Exemption Request. DLCD must provide an opportunity for public participation while reviewing the request.

The consistency determination must include all information required by the federal regulations, including:

  1. A detailed description of the proposed activity and its associated facilities.
  2. A discussion of anticipated coastal zone effects. Federal agencies may opt use National Environmental Protection Act (NEPA) documents or other project documents to describe coastal effects.
  3. Data and information sufficient to support the finding of consistency.
  4. A brief statement indicating whether the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the enforceable policies of the OCMP.
  5. An analysis of the relevant enforceable policies and how the project is consistent or not consistent with them.

The federal agency may submit the consistency determination and supporting information in any format that meets these basic content requirements.

If the federal agency is aware, prior to submitting the consistency determination, that the activity is not fully consistent with the OCMP's enforceable policies, the agency must describe in its consistency determination the existing law that prohibits full consistency. If the federal agency is not aware of any inconsistency until after it has submitted the consistency determination, the agency must submit a description of the legal authority that prohibits full consistency to the State agency as soon as possible, or before the end of the 90-day review period.

In circumstances where state permits or local approvals are not obtained for a federal activity, the enforceable policies underlying those permits and approvals must still be addressed.

Federal agencies should not use federal consultation processes with other federal agencies to satisfy state natural resource enforceable policies. A conversation with the Oregon Department of Fish and Wildlife is the best way to demonstrate consistency with the Program's natural resource enforceable policies.

If either federal agency partners or Oregon have a serious disagreement over a federal consistency decision, mediation is available. Either party can request Secretarial mediation or a less formal mediation process with the Office for Coastal Management, NOAA. There are specific federal regulations describing Secretarial mediation requirements.

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

Patty Snow
Oregon Coastal Management Program Manager
patty.snow@state.or.us
Phone: 503-934-0052

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