The Federal Consistency Unit of the California Coastal Commission implements the federal Coastal Zone Management Act (CZMA) of 1972 as it applies to federal activities, development projects, permits and licenses, and support to state and local governments. In the CZMA, Congress created a federal and state partnership for management of coastal resources. The CZMA encourages states to develop coastal management programs and implement the federal consistency procedures of the CZMA. Upon certification of a states coastal management program, all federal agency activities (including federal development projects, permits and licenses, and assistance to state and local governments) affecting the coastal zone must be consistent with the enforceable policies of the states certified program. The review process used to implement this requirement is called a consistency determination for federal agency activities and development projects, and a consistency certification for federal permits and licenses, and/or federal support (i.e. funding) to state and local agencies.
The federal government certified the California Coastal Management Program (CCMP) in 1977. The enforceable policies of that document are Chapter 3 of the California Coastal Act of 1976. All consistency documents are reviewed for consistency with these policies. The Commissions goal is to use the federal consistency process to provide open communication and coordination with federal agencies and applicants and provide the public with an opportunity to participate in the process.
Coastal States prepare Coastal Management Programs under the Coastal Zone Management Act, which Congress enacted in 1972 to encourage coastal states to develop comprehensive programs to manage and balance competing uses of and impacts to coastal resources. Once the federal government approves a state's Coastal Management Program (CMP), that state gains federal consistency review authority. California's CMP was federally approved in 1977 and contains two designated coastal zone management agencies that implement the federal consistency provisions: (1) the California Coastal Commission (CCC) for all coastal areas outside San Francisco Bay; and (2) the San Francisco Bay Conservation and Development Commission (BCDC) for the coastal areas in San Francisco Bay. (The CCMP also includes the California Coastal Conservancy, 'which purchases, protects, restores, and enhances coastal resources, and provides access to the shore'.)
For federal consistency activities that the CCC reviews, the most important portion of the CCMP is the "enforceable policies" contained in Chapter 3 of the California Coastal Act. The next most important portion of the CCMP, which describes how California implements the federal consistency provisions, is the discussion contained in "Federal Consistency and the National Interest" (Chapter 11 from the CCMP Final EIS).
Consistency determinations are submitted by federal agencies for thier projects and activities. Consistency certifications are for projects requiring a federal permit, authorization, or funding. The legal tests, review periods, and dispute resolution mechanisms differ between the two. (See Federal Consistency in a Nutshell.) Briefly:
Review periods: The Consistency Determination review period is up to 75 days. The Consistency Certification review period is up to 6 months. Applicants may extend either of these time periods. Note also the "90 day" rule for consistency determinations in 15 CFR § 930.36(b): "The consistency determination shall be provided to State agencies at least 90 days before final approval of the Federal agency activity unless both the Federal agency and the State agency agree to an alternative notification schedule."
Legal Tests: The enforceable policy (Coastal Act Chapter 3) analysis is the same for both. Where they differ is that federally permitted projects (Consistency Certifications) must be "consistent" with the CCMP, whereas federal agency activities (Consistency Determinations) must be "consistent to the maximum extent practicable" (defined in 15 CFR § 930.32 as follows: "(a)(1) The term ‘consistent to the maximum extent practicable' means fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency." )
Dispute Resolution Mechanisms: A CCC objection to a consistency certification may be appealed (only by the applicant) to the Secretary of Commerce. (A CCC concurrence cannot be appealed.) A CCC objection to a consistency determination is not appealable; available dispute resolutions include: (1)formal or informal mediation by the Secretary of Commerce or the Office for Ocean and Coastal Management (OCM); and (2) litigation.
A consistency determination is submitted when a federal agency activity affects the coastal zone. It is a project description and analysis of the activity's coastal zone effects based on the policies of Chapter 3 of the Coastal Act. A negative determination is a project description and an explanation of why a federal agency has concluded that an activity does not affect the coastal zone. Chapter 3 analysis is not required for the latter.
There are no hard and fast rules. Decisions are made on a case by case basis. If the CCC staff objects to a negative determination, then the CCC staff will request that the federal agency submit a consistency determination. To avoid potential delays, decisions on which to submit are best made in consultation with the CCC's federal consistency coordinator (contact information below).
Effects, rather than location, dictate whether federal consistency review is triggered. Thus, projects both inside and outside the coastal zone can trigger federal consistency review. (We will soon post links to coastal zone boundary maps.) Whether a project affects the coastal zone should be discussed with the CCC's federal consistency coordinator (contact information below).
Projects on federal land (or in federal waters beyond the state's seaward coastal zone limit) can affect the coastal zone and trigger federal consistency review. The test is whether a project affects the coastal zone (see answer to previous question). The Commission reviews many consistency determinations for activities on federal land. Whether a consistency determination is required is decided on a case by case basis and should be discussed with the CCC's federal consistency coordinator (contact information below). (See also #3 and #4 above, concerning whether a negative determination or a consistency determination is required.)
You may need a CCC-issued coastal development permit for a "private activity on federal land" (typical example: a cellular tower for a communications company on a federal military base). The Coastal Zone Management Act (CZMA) excludes from its definition of the coastal zone "lands the use of which by law is subject solely to the discretion of or which is held in trust by the Federal Government." (15 USC 1453(1)). If a federal agency leases land to a private party, the exclusion based on "subject solely to the discretion of the federal agency" may disappear and the activity may be considered to be "within the coastal zone" for purposes of CCC coastal development permit review. If the project is within the coastal zone but on federal land, contact the CCC office for your district. If the project is both inside and outside the coastal zone, or fully outside the coastal zone, contact the CCC's federal consistency coordinator (contact information below).
NEPA/CEQA documents are not legally required. See 15 CFR § 930.37, which provides:
A Federal agency may use its NEPA documents as a vehicle for its consistency determination or negative determination under this subpart. However, a Federal agency's federal consistency obligations under the Act are independent of those required under NEPA and are not necessarily fulfilled by the submission of a NEPA document. State agencies shall not require Federal agencies to submit NEPA documents as information required pursuant to § 930.39. If a Federal agency includes its consistency determination or negative determination in a NEPA document, the Federal agency shall ensure that the NEPA document includes the information and adheres to the timeframes required by this subpart. Federal agencies and State agencies should mutually agree on how to best coordinate the requirements of NEPA and the Act.
15 CFR § 930.39 and § 930.58 describe the consistency determination and consistency certification information requirements. In practice, NEPA/CEQA documents have sometimes included chapters or appendices that contain specific federal consistency (i.e., Coastal Act Chapter 3) analyses, but any such federal consistency submittal needs a cover letter to the CCC clearly identifying that the NEPA/CEQA document contains such an analysis, and where in the document it can be found. Also, environmental analyses contained in NEPA/CEQA documents can be referenced in federal consistency submittals, where they can be used to supplement the analysis of a project's consistency with the applicable Coastal Act Chapter 3 policy.
No, you only need to analyze those policies applicable to the proposal. For advice on which policies to analyze, contact the CCC's federal consistency coordinator (contact information below).
There is no fee for a consistency determination submitted by a federal agency for a federal agency activity. There is a fee for a consistency certification submitted by an applicant for federal permits. The fee is the same as the Commission requires for coastal development permits.
No. You may use any format you choose, as long as the information requirements are satisfied. Feel free to use our "sample" consistency determination, negative determination, or consistency certification formats for guidance (and/or contact the CCC federal consistency coordinator).
No. Once a Coastal Commission-reviewed coastal development permit has been issued, that permit automatically satisfies federal consistency, and no further submittal is needed.
The Corps of Engineers will need evidence of compliance with the CCMP. You will need CCC concurrence with a consistency certification or a CCC staff-issued waiver of the federal consistency provisions. In many instances where local permits are appealable to the CCC (which is often the case for activities needing Corps of Engineers permits), the federal consistency unit will issue a waiver. If you seek such a waiver, you should submit a map, project description, and local government permit conditions and findings (or a timetable for local government review if it has not been completed) to the CCC's federal consistency coordinator (contact information below).
The Corps of Engineers will need evidence of compliance with the CCMP. You will need CCC concurrence with a consistency certification or a CCC staff-issued waiver of the federal consistency provisions. If you seek such a waiver, you should submit a map, project description, and the local government's rationale for issuing a permit exemption (such as a written copy of a waiver and/or local government contact information) to the CCC's federal consistency coordinator (contact information below).
Corps of Engineers Nationwide Permits (NWP) are treated the same as all other Corps of Engineers permits, and the CCC's programmatic objection to the Corps' consistency determination for the NWP permit program describes the effect of the objection as follows:
An objection to the Corps' proposed NWP program will not eliminate Nationwide Permits in the California coastal zone. Instead, it will maintain an existing procedure used by the Commission which requires federal consistency review of the activity before a NWP can apply to a specific activity. Depending on the circumstances, the Commission can either waive consistency certification or require a consistency certification.
Therefore, you will need evidence of compliance with the CCMP, as described in the answer to the previous two questions. (This applies even for "non-reporting" NWPs that do not require notification to the Corps of Engineers.)
Possibly, depending on whether the emergency permit is issued by the CCC or by local government.
Probably not; activities consistent with a certified Port Master Plan are "deemed consistent". However, if there are any questions about whether a project is consistent with a PMP, or if any part of the project would occur outside the designated port boundaries, further CCC federal consistency and/or coastal development permit review may be needed. Contact the CCC's 'federal consistency coordinator (contact information below).
For more information, please contact the CCC's federal consistency coordinator, Larry Simon, at firstname.lastname@example.org or by FAX at (415) 904-5400 or by phone at (415) 904-5288. If you have questions about any of the following types of projects - energy projects, aquaculture, artificial reefs, offshore fiber optic cables, or desalination facilities - contact Alison Dettmer, Deputy Director of the CCC's Energy and Ocean Resources and Federal Consistency Division, at email@example.com. (Note: energy projects include oil and gas leasing, exploration and production, liquefied natural gas import terminals, oil and gas pipelines, oil marine terminals, wave, wind, and power plants.
Under the Coastal Zone Management Act, state objections to consistency certifications are appealable (by applicants) to the Secretary of Commerce. In the nine decisions by the Secretary of Commerce on appeals of California Coastal Commission (CCC) objections to consistency certifications, the Commission's objection was sustained by the Secretary of Commerce in three cases, overridden in five cases, and a final decision deferred in one case.
Note: All Secretary of Commerce decisions nationwide can be found at the following Office for Coastal Management, Coastal Zone Management Act (CZMA) Consistency Appeals Website