It's easy to recognize large projects that will need to be federally permitted. Few are surprised that something like a liquefied natural gas pipeline, an offshore renewable energy facility, or restoration of a port facility will need to be reviewed and permitted by the state and federal agencies. However, it might come as a surprise that something that seems simple, like a homeowner's new dock in the Yaquina Bay, fill to stabilize a bank in Warrenton, or a bridge over a stream to create driveway access to a property, may trigger the need for a federal permit.
People who need to get a federal permit or license (including Section 404/Section 10 permits from the Army Corps of Engineers) in the coastal zone should use the review process outlined on this page. Table 7 of the Ocean Coastal Management Program (OCMP) has a list of the kind of permits that require a review for federal consistency in the coastal zone. If the permit or license is not listed, DLCD may still review the activity associated with the permit request and will provide notice to the federal permitting agency within 30 days of notice of the permit/license application.
Detailed information is available in the federal regulations about activities requiring a Federal License or Permit.
Before a Federal Consistency application is submitted, DLCD is available to review a draft application and provide feedback. DLCD encourages coordination as early as possible in case the proposed project can be modified in order to better align with the program's enforceable policies.
Contact us for help with the federal permitting process.
Timeline for an Individual Review
When the application is submitted, DLCD has 30 days to review it for completeness. When the application is complete, a 30-day comment period occurs, which is sometimes in conjunction with the federal agency comment period. DLCD must concur with or object to the applicant's consistency certification within six months (180 days), unless DLCD and the applicant mutually agree in writing to stay the six-month consistency review period. Oregon Administrative Rule 660-035-0050 requires the applicant obtain state and local authorizations/permits to demonstrate consistency. Obtaining these authorizations or permits is the best way to demonstrate alignment with the Program. If the applicant has not obtained these documents within the 180 day review period and chooses not to sign a stay agreement, the review will likely conclude with an objection letter from DLCD.
All decisions are issued with standard conditions that are added to the federal permit when it is issued. DLCD may place additional conditions within a decision to bring the project in line with Program policies that must be added to the federal permit when it is issued. If the federal agency or the applicant disagree with the decision, they can appeal to the Secretary of Commerce within 30 days.
Content of a Federal Consistency Application
Applicants must provide DLCD with the information and data required by federal regulation and also what is required by Oregon Administrative Rule 660-035-0050, including:
- A copy of the application for the federal license or permit.
- A signed Certification Statement
- If not included in the federal application, a detailed description of the proposed activity, its associated facilities, the coastal effects, and any other information the applicant relied on to make the certification.
- An evaluation that includes a set of findings relating the coastal effects of the proposal and its associated facilities to the relevant enforceable policies of the management program.
- Draft NEPA documents, except when a federal statute requires a federal agency to initiate CZMA consistency review prior to its completion of NEPA compliance. Applicants may use NEPA or other project documents to provide the necessary data and information. If relying on NEPA or other project documentation, the applicant must clearly demonstrate how the materials support the consistency certification.
DLCD will only start reviewing the proposed project for consistency with the Oregon Coastal Management Program when it has received the certification and all necessary data and information listed above. DLCD has created an application template for small-to-medium sized projects, however applicants can format the needed information how they see fit.
Details for USACE Nationwide Permits and Federal Consistency Review
Nationwide permits (NWPs) are a type of general permit issued by the U.S. Army Corps of Engineers on a nationwide basis for activities having minimal impacts.
Applicants for most U.S. Army Corps of Engineers Nationwide Permits do not need to submit any material directly to DLCD because they have been granted a concurrence decision in advance, during the Permit Program’s national-level re-authorization process.
However, certain Nationwide Permits were not granted a decision in advance and receive individual consistency review by DLCD because of their potential coastal effects or unique nature. These projects follow the full individual review process that includes a separate 30-day public notice period via the OCMP public notices webpage with a 180-day review period.
The Nationwide Permits that receive individual review include (2017 Authorization):
- Any permit where the project is within or directly impacts the Territorial Sea (waters and seabed extending three (3) nautical miles seaward from the coastline, in conformance with federal law). Exception: Projects permitted under NWP 1 (Aids to Navigation).
- Any project utilizing NWP 29 (Residential Developments) or NWP 39 (Commercial and Institutional Developments) that requires a local plan amendment, text amendment, zoning change, goal exception, discretionary decision, or action by a city or county council or commission.
- Any permit where the project is within or directly impacts the following aquatic habitats of special concern:
- native eel grass beds,
- mature forested wetland,
- wetlands in dunal systems,
- estuarine intertidal wetlands (in natural or conservation management units only),
- state special management areas (including marine gardens, marine reserves, research reserves, state habitat refuges, marine protected areas, and shellfish preserves),
- kelp beds, rocky substrate in tidal waters (interpreted as all marine subtidal rock substrate and reefs and rocky intertidal shores),
- and native oyster beds
Please use DLCD's Aquatic Habitats Screening Tool for Nationwide Permits to help determine if you must enter individual federal consistency review with DLCD. Exception: Projects permitted under NWP 20, 22, 27, 32, and 38.
Any project that utilizes Nationwide Permit 48 (Commercial Shellfish Aquaculture Activities)
Any project that utilizes Nationwide Permit 53 (Removal of Low-Head Dams). Exception: Projects where ODFW has determined no current or historical native migratory fish presence or the applicant already has a fish passage approval/waiver.
Any project that utilizes Nationwide Permit 54 (Living Shorelines). Exception: The project consists solely of wood, vegetation, or other living natural 'soft' elements.
Upcoming 2020/2021 Nationwide Permits
The Oregon Costal Management Program has completed the review of the 2020 Nationwide Permits. Once rulemaking is finalized by the Army Corps of Engineers, the requirements for individual federal consistency review will be updated to reflect OCMP's 12/18/2020 decision -
How to Appeal a Federal Consistency Decision
If the applicant or federal permitting agency disagree with the decision or the conditions within the decision, an appeal can be filed with the U.S. Secretary of Commerce within 30 days. There is detailed guidance about the process and what must be submitted in the federal regulations.
The Secretary may decide to dismiss an appeal, override the State’s objection, stay the appeal, or remand the appeal to the State agency for reconsideration if new information is presented.
Unless the Secretary stays the closing of the decision record, it will close no later than 160 days after the appeal is published in the Federal Register.
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.