NOAA Issues Final Rule Revising CZMA Federal Consistency Regulations

Print PDFIvy Anderson, Sam Kalen, Jonathan Simon
January 18, 2006

On January 5, the National Oceanic and Atmospheric Administration issued a final rule revising its federal consistency regulations under the Coastal Zone Management Act (CZMA). This final rule makes significant changes to the CZMA’s federal consistency determination process that take effect on February 6, 2006.

Overview of Federal Consistency Process

The CZMA was established in 1972 as a voluntary national program within the Department of Commerce to encourage coastal states to be proactive in managing coastal natural resources.

Once a state has an approved coastal zone management program, any federal agency activity that affects any land or water use or natural resource of the state’s coastal zone (regardless of whether the activity is within or outside of the coastal zone) must be carried out in a manner that is consistent, to the maximum extent practicable, with the enforceable policies of the state’s program. A federal agency carrying out such an activity must provide a “consistency determination” to the affected state(s) no later than 90 days before final approval of the activity. However, even if the state objects, the agency may proceed if it provides to the state a written statement showing that its activity is consistent to the maximum extent practicable with the state’s program.

In addition, applicants for required federal licenses or permits to conduct activities affecting any land or water use or natural resource of the coastal zone of that state (regardless of whether the activity is within or outside of the coastal zone) must provide to the affected state(s) a “consistency certification” that the proposed activity fully complies with the enforceable policies of the state’s approved program, together with supporting information and data. The state may object to or concur with the certification within six months, or its concurrence will be presumed. An applicant can appeal a state’s objection to the Secretary of Commerce, who can override the state’s objection if the Secretary finds that the activity is consistent with the objectives of the CZMA or otherwise necessary in the interest of national security. The authorizing federal agency may not approve the required federal license or permit until either the state concurs with the applicant’s determination, or the Secretary overrides the state’s objection.

State agencies and local governments applying for federal funds to conduct activities affecting any land or water use or natural resource of a state’s coastal zone also are required to provide the affected state(s) with a consistency certification. The authorizing federal agency may not issue the funds for the activity unless the state concurs, or the Secretary overrides the state’s objection.

Revised Regulations

NOAA’s regulations, codified at 15 C.F.R. Part 930, implement the CZMA requirements. Among other changes, the new CZMA regulations:

State Review of Consistency Certifications

In an effort to make the federal consistency review process more predictable and transparent, the new regulations provide more specific information requirements with respect to the data and information that an applicant for a federal license or permit must submit to a state along with its consistency certification. To this end, the regulations provide a checklist of information that is required to start the six-month consistency review period and a process by which the state may ask for additional information. In addition, the revised regulations now generally prohibit states from requiring applicants to submit final state permits in order to start the review process; instead, states may only require applications for such permits.

Processing CZMA Appeals

The new regulations contain specific requirements and deadlines for processing CZMA consistency appeals, as mandated by EPAct 2005, in order to expedite the appeals process. The revised timeline for consistency appeals requires the Secretary of Commerce to close the decision record no later than 160 days after publishing notice of appeal, although the Secretary may stay the closing of the decision record for a maximum of 60 days. After the decision record is closed, the Secretary must issue a decision within 60-75 days. The rule also clarifies that during the Secretary’s review any alternative – whether submitted to the Secretary by the applicant, the state, a third party, or identified by the Secretary – will not be considered unless the state agency submits a statement that the alternative would permit the activity to be conducted in a manner consistent with the enforceable policies of the state’s coastal zone management program. This clarification is intended to prevent the Secretary from making a finding that an alternative is consistent with the state’s program, which would effectively substitute the Secretary’s judgment for that of the state.

In accordance with EPAct 2005, the revised regulations also include provisions to make the CZMA appeals process with specific respect to energy projects more efficient and less time consuming. As prescribed by EPAct 2005, the Secretary must use the consolidated record compiled by the lead federal permitting agency (e.g., FERC, with respect to jurisdictional natural gas facilities), as the decision record for CZMA appeals for energy projects, although the Secretary is given specified authority to supplement the record. In addition, NOAA will no longer provide a public or federal agency comment period as part of the appeals process.

Review of OCS Plans

Under the CZMA, a state will review Outer Continental Shelf (OCS) oil and gas Exploration Plans and Development and Production Plans for a consistency determination. The revised regulations specify the information and data required for state consistency review of OCS plans, as well as the timeline for the review. The revised regulations clarify that the Secretary of the Interior will furnish the state agency with a copy of the OCS plan, the necessary data and information, and the consistency certification.

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