Federal Consistency is the Federal Coastal Zone Management Act (CZMA) requirement that federal actions (regardless of location) that have reasonably foreseeable effects on any land or water use or natural resource of the coastal zone (also referred to as coastal uses or resources, or coastal effects) must be consistent with the enforceable policies of a coastal states federally approved coastal management program, before they can occur. The CZMA federal consistency requirements are found at 15 CFR Part 930.
CRM has developed a standard form (#3010-FM-IWO0007) for the submission of federal consistency certifications and determinations. Although the use of this form is not required, CRM recommends that all new requests for federal consistency reviews be submitted on this form, or its equivalent, to ensure that the content requirements under the Federal Consistency Regulations at 15 C.F.R. Part 930 are satisfied. The new submission form, along with instructions can be downloaded electronically at:
Federal actions consist of:
Pennsylvanias Department of Environmental Protection (DEP) is the state agency responsible for coordinating the federal consistency review of these federal actions, and concurring with or objecting to the consistency determinations of federal agencies, and consistency certifications of applicants for federal licenses or permits, Outer Continental Shelf (OCS) or federal assistance activities. The CRM within DEP has been tasked with federal consistency coordination and reviews.
Through coordination with all pertinent federal agencies, the CRM has developed direct contact procedures to review all federal consistency actions. In these procedures either the pertinent federal agency or the applicant sends to the CRM the required consistency certification / determination, and the information necessary for the CRM to perform its consistency review. In every consistency review made by the CRM, the CRM notifies in writing, BOTH the applicant and federal agency of its decision.
Review Procedures for Assuring Consistency
Consistency for Federal Agency
15 CFR Part 930 Subpart C
The CRM uses the following procedures to review federal agency activities and development projects. These procedures are modified if the federal consistency regulations promulgated by the National Oceanic and Atmospheric Administration (NOAA) mandate changes, or if unforeseen deficiencies or conflicts arise in using these procedures. Necessary changes made to correct deficiencies or conflicts are submitted to all federal agencies for comment. Following a reasonable review period, all received comments are evaluated and a new procedure is developed. This new procedure is then utilized in the review of federal actions requiring consistency.
The existing review procedures for federal agency activities or development projects are as follows:
NOTE: Development projects located inside the Pennsylvania coastal zone are automatically subject to consistency reviews, and require a consistency determination. However, for federal agency activities located in or outside of the coastal zone, and development projects located outside of the coastal zone, the federal agency determines if they will have reasonably foreseeable coastal effects. Any federal agency activity / development project regardless of its location is subject to the CZMA consistency requirement if it will affect any natural resources, land uses, or water uses of the coastal zone. No federal agency activities / development projects are categorically exempt from this requirement.
States are encouraged to list federal agency activities (see list below) that are expected to affect coastal uses or resources in their approved management plans, and to monitor unlisted activities and to notify federal agencies when an unlisted activity requires consistency review.
If coastal effects are reasonably foreseeable, then the federal agency must submit a consistency determination to CRM at least 90 days before the activity starts. If there are no effects the federal agency may have to provide a Negative Determination as per section 15 CFR 930.35.
The required consistency determination includes a brief statement on whether or not the proposed action will be undertaken in a manner consistent to the maximum extent practicable with the states approved management program, a detailed description of the proposed action, its associated facilities, its combined coastal effects, and will be presented in sufficient detail to support the federal agencys consistency statement. As appropriate and at the request of the federal agency, CRM assists the agency in making the consistency determination concerning the proposal. Consistency determination is made with respect to the programs enforceable policies approved by NOAA.
Upon receipt of the consistency determination and other required information the CRM coordinates its review with appropriate state permitting and resource agencies, and responds to the federal agency within the time period (60 days,) and in the manner prescribed by 15 CFR Part 930 Subpart C. Should CRM object to the federal agencys consistency determination and fail to resolve its differences with the federal agency, the CRM may request mediation by the Secretary of Commerce or the federal Office of Ocean and Coastal Resource Management (OCRM), pursuant to 15 CFR Part 930, Subpart G. Mediation is not required and is a non-binding administrative remedy. Should Pennsylvania be dissatisfied with the outcome of the mediation process, or if the federal agency elects to proceed despite the states objection, prior to, during or after the mediation, the state may pursue remedies in the federal courts.
The following federal agency activities or development projects are expected to have coastal effects:
Consistency for Federally Licensed
and Permit Activities,
15 CFR Part 930 Subpart D - Section 930.51
defines federal license and permit activities:
Any applicant required to obtain a federal license or permit for an activity that affects any land or water use or natural resource of the coastal zone should consult with the CRM to assure that the proposed activity will be conducted in a manner consistent with the CRM.
NOTE: All federal license or permit activities occurring in Pennsylvanias coastal zone are deemed to affect coastal uses or resources, if CRM has listed the particular federal license, permit or authorization in its federally approved program management document (i.e. see CRM list below).
Persons or agencies required to obtain federal licenses or permits listed by the state as requiring consistency review shall submit a copy of the license or permit application to the CRM along with the necessary data and information required by 15 CFR 930.58, and indicate that the proposed activity complies with and will be conducted in a manner consistent with the enforceable policies of the CRM. Upon receipt of the application, the CRM will coordinate its consistency review with appropriate state permitting and resource agencies, and respond in writing to both the applicant and federal agency in a manner prescribed by 15 CFR Part 930, Subpart D.
If an applicant is applying for one of the listed U.S. Army Corps of Engineers permits, DEP and the Corps have developed a joint federal /state permit application to facilitate the state / federal permit process. A single application is submitted in triplicate to the pertinent DEP Regional Office. DEP keeps one copy, the second copy is sent to the Corps, and the third copy is sent to the Pennsylvania Fish and Boat Commission. Through coordination with DEPs regional offices, CRM will be informed of the project and requests a fourth copy from the applicant. Some activities requiring a Corps permit and which qualify for a Corps State Programmatic General Permit-2 (in Pennsylvania only), have already been determined to be consistent by CRM, under 15 CFR Part 930 Subpart C, and do not require further state federal consistency review.
If a federal license or permit requires a CRM consistency review, and the CRMP has not replied within 6 months of receipt of the certification and necessary data and information, then the CRMs concurrence is presumed. CRMs consistency decision will be communicated in writing to both the applicant and the authorizing federal agency.
The CRM uses the DEPs permit process, the federal agencies Public Notices, participation in pre-permit meetings, and review of the Federal Register and Pennsylvania Bulletin as a backup to ensure receipt of all listed federal licenses and permits, and also to monitor for unlisted federal licenses or permits. For those federal permit and license activities not received or unlisted, the CRM notifies the applicant and applicable federal agency of any CZMA consistency responsibilities.
Upon receiving certification concurrence from the CRM, the federal agency may approve the activity. If the CRM objects, then the CRM forwards in writing to the applicant and to the federal agency, the reasons the application was determined to be inconsistent. The letter may also include recommendations for making the application consistent with Pennsylvanias program. The applicant may appeal the states objection to the Secretary of Commerce within 30 days of receipt of the states objection. The Secretary of Commerce shall then determine whether the activity is consistent with the objectives of the Federal Coastal Zone Management Act, or is necessary in the interest of national security. If the Secretary finds that the proposal meets with either of these requirements, the federal agency may approve the activity. If neither of these requirements is met, then the Secretary shall notify the federal agency that it may not issue the permit. If the state objects, the applicant is also encouraged to discuss options with the CRM. If a satisfactory resolution is negotiated, then the state will remove its objection.
The geographic scope of the consistency review involving federal licenses and permits includes the entire coastal zone and, in some cases, areas outside the coastal boundaries. Federal lands within the coastal zone boundary are excluded from the coastal zone, but listed federal license or permit activities on these federal lands are still subject to consistency review. Federal license or permit activities on federal lands and on other lands outside the zone boundary are subject to consistency review if the license or permit is listed in the CRM and the activity is located in a geographic area outside the coastal zone that is described in the CRM. See 15 CFR 930.53. If the federal license or permit activity is not listed or is listed but is outside such a geographic location, then CRM must obtain OCRM approval to review the activity pursuant to 15 CFR 930.54. Persons proposing to conduct an activity with potential coastal effects should consult with the CRMP early in the planning process in order to avoid later problems
To assist federal agencies and applicants in determining whether or not licenses or permits for an activity require a consistency certification with the CRM, the following list describes the licenses and permits subject to CRM review. Other permits and licenses may be added as further needs are indicated. As this list is modified, the CRM will communicate the changes to the appropriate federal agencies and OCRM.
The following federal permits and licenses are subject to CRM consistency procedures.
Consistency for Federal Assistance
to State and Local Governments,
15 CFR Part 930 Subpart F
The term federal assistance means assistance provided under a federal program to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other form of financial aid. An applicant agency is a State agency or local government applying for federal financial assistance.
The CRM reviews all federal assistance activities to governmental agencies that potentially affect the environmental, economic, and social resources of the Commonwealths coastal zones. CRM uses a review procedure where all pertinent federal, state and local governmental grant recipient agencies send their federal assistance grant applications directly to the CRM for review. Federal agencies have informed these governmental agencies that their grant activities require the CRM consistency review, and have directed them to submit consistency certifications and copies of grant applications to the CRM. The federal Office of Management and Budget has added CRM consistency requirements to the Assurances form found in all grant applications. This Assurances form also requires compliance with NEPA, the National Historic Preservation Act, the Wild and Scenic Rivers Act, the Clean Air Act, etc.
In addition, the CRM relies on DEPs internal federal assistance project review process developed under Executive Order 12372, and discussed in the last chapter.
The CRM uses DEPs permit process, participation in pre-permit meetings, and review of the Federal Register and Pennsylvania Bulletin, as a backup to ensure receipt of all listed federal assistance activities, and also to monitor for other pertinent federal assistance activities not received. For those federal assistance activities not received, the CRM notifies the pertinent governmental agency of its need to review them.
Upon receipt of the consistency certification, the information required by 15 CFR section 930.94(c), the CRM coordinates its review with appropriate state permitting agencies, and affected coastal municipalities, and responds in writing to the applicant agency and the federal agency within 30 days of receipt of the certification. Within 30 days, the CRM prepares a consistency concurrence or objection, and sends copies to the applicant, the federal grant agency, and the DEPs Office of Policy. If the CRM does not object, the federal agency may grant the funds.
In the event the CRM objects to the applicants proposal, the CRMs written objection will describe how the proposal is inconsistent with the applicable CRMP enforceable policies, or lacks information needed to determine consistency, and alternative measures which makes the proposed project consistent with the CRM. The CRMs objection letter is sent to the applicant, the federal agency and DEPs Office of Policy.
NOTE: Before sending an objection, the CRM first coordinates its objection with the DEPs Office of Policy.
As a result of the CRM's federal consistency objection, the federal agency may not provide the financial assistance.
The applicant agency may appeal the CRMs objection with the Secretary of Commerce as described above, within 30 days of receipt of the states objection. Applicant agencies are also encouraged to arrange a meeting with the CRM to address the CRMs objection and enforceable policies.
The following federal assistance to state and local governments are subject to CRM consistency procedures:
Consistency for Outer Continental
Shelf Exploration, Development and Production Activities,
15 CFR Part 930 Subpart E
Exploration, development, or production activities requiring a federal license or permit and described in detail in an Outer Continental Shelf (OCS) plan for any area which has been leased under the Outer Continental Shelf Lands Act (43 SC, Section 1331 et seq.), and which affect the coastal zone, must be conducted in a manner consistent with the enforceable policies of approved state coastal zone management programs. The person submitting an OCS exploration or development/production plan to the U.S. Department of the Interior must provide a consistency certification. The Department of the Interior then forwards a copy of the OCS plan, excluding proprietary information, and the persons consistency certification to the CRM requesting a decision on the persons certification.
The CRM seeks to coordinate reviews of other pertinent federal permits associated with the review of OCS plans. In addition, the CRM coordinates its review with other state permitting and resource agencies, especially regarding compliance with state oil and gas regulations. The CRM also coordinates its review of OCS plans with any affected coastal communities.
CRM uses DEPs permit process, federal agencies Public Notice, participation in pre-permit meetings, and review of the Federal Register and Pennsylvania Bulletin as a backup to ensure receipt of all OCS permits and projects. For those federal activities and projects not received, the CRM notifies the federal agency of its need to review them.
CRM will respond to the person and the Department of the Interior within 3 months of receiving from the Department of the Interior the consistency certification and supporting information. If a decision on consistency is not issued within 3 months, CRM will notify the U.S. Department of the Interior and the person of the status of the consistency review. Concurrence with the consistency certification is conclusively presumed in the absence of this response. Concurrence is conclusively presumed in the absence of an objection by CRMP within 6 months of commencement of the consistency review.
In the event that CRM objects to the consistency certification, the CRM notifies the person, the Department of the Interior, and the Director of OCRM of the reasons why the state objects to the action. Additionally, the person will be provided with the following: suggestions for correcting the proposal so that it complies with the enforceable policies of the CRM, notice that the person may appeal CRMs objection to the Secretary of Commerce pursuant to 15 CFR part 930 subpart H. The CRM is also available to meet with the person attempt to resolve the differences.