7 Del. Admin. Code § 2201-3.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 2201-3.0 - Procedures for Federal Consistency Reviews

Applicants should address their Consistency Determinations or Certifications and all supporting documentation (see relevant sections below) to:

Kimberly Cole, Administrator, Delaware Coastal Management Program

All submissions should be made electronically to DNREC_FederalConsistency@state.de.us

Hard copy submission are not necessary, but can be made to:

Delaware Coastal Management Program

Delaware Department of Natural Resources and Environmental Control

100 W. Water Street, Suite 7B

Dover, Delaware 19904

3.1 Federal Agency Activities and Development Projects

Federal agencies proposing activities and development projects must submit a consistency determination to the DCMP where such projects are likely to affect Delaware's coastal resources. Under federal regulations this includes all functions of a federal agency performed by it or on its behalf, including, but not limited to: federal rulemaking or plan development, planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources. [15 CFR § 930.31]

The following procedures apply to federal agency activities and development projects:

3.1.1 Notification

Federal agencies must provide the DCMP, at the earliest practicable time, with consistency determinations for all proposed federally conducted or supported activities directly or indirectly affecting the coastal zone management area. Such consistency determinations must be received at least 90 days before the federal activity or development project reaches a final decision stage likely to restrict the consideration of alternative approaches or measures. In a limited number of cases, federal agencies must also submit a consistency determination for ongoing activities initiated prior to approval of the DCMP. [15 CFR § 930.36]

Pursuant to 15 CFR § 930.39, the consistency determination from the federal agency must contain:

3.1.1.1 A brief statement indicating how the proposed action will be undertaken in a manner consistent to the maximum extent practicable with the DCMP. The term 'maximum extent practicable' [15 CFR § 930.32] describes the requirement for federal activities to be fully consistent with such programs unless compliance is prohibited based upon the requirements of existing law applicable to the federal agency's operations.

3.1.1.2 An evaluation of the relevant policies of the DCMP.

3.1.1.3 A detailed description of the proposed action, its associated facilities and their combined coastal zone effects.

3.1.1.4 Relevant data and information, including time schedules, sufficient to support the federal consistency determination.

3.1.2 State Review

Pursuant to 15 CFR § 930.41, the DCMP shall inform the federal agency of its agreement or disagreement with the federal agency's consistency determination at the earliest practicable time. The response time will not exceed 60 days following receipt of federal notification unless an extension has been granted.

Upon receipt of a federal consistency determination the DCMP will notify affected network program partners. The DCMP shall be responsible for coordinating the review, compiling comments, and responding to the federal agency.

3.1.2.1 Public Notice

The State will also provide adequate public notice of the proposed federal action. The public notice process is as follows:

3.1.2.1.1 The DCMP will give at least 20 days public notice prior to response to consistency determination. In the event that a State permit is required for the same activity, the DCMP will coordinate their review with the State permitting agencies.

3.1.2.1.2 The notice shall describe the subject matter of the determination review, including a summary of the proposed activity and an announcement of the availability of consistency determination and accompanying public information.

3.1.2.1.3 The notice shall request interested parties to comment on the proposed activity.

3.1.2.1.4 The notice shall be published in a minimum of two Delaware newspapers of general circulation.

3.1.2.1.5 Public notice may be expanded in proportion to the degree of likely public interest involved, the substantial commitment of or impact on coastal resources, the complexity or controversy of the proposal, or for other good reasons.

3.1.2.1.6 As needed, a notice shall be provided indicating the date, time, and place of any hearing to be held by the DCMP.

3.1.3 DCMP Objection to a Consistency Determination

In the event the DCMP objects to the federal agency's consistency determination, a notification will be sent to the affected federal agency and to the Director of the Office of Coastal Management (OCM), National Oceanic and Atmospheric Administration (NOAA).

3.1.3.1 Notification of Objection. The notification shall:

3.1.3.1.1 Describe how the proposed activity is inconsistent with specific enforceable policies of the management program;

3.1.3.1.2 Identify alternative measures, where feasible, which would make the proposed action consistent; and

3.1.3.1.3 Describe the nature and necessity of additional information that may be required for making a consistency determination if the objection is based on insufficient information.

3.1.3.2 Mediation

When the DCMP objects to a consistency determination, the DCMP will attempt to resolve its concerns with the federal agency. However, in the event of a serious disagreement between a federal agency and the DCMP, either party may request formal mediation through the Secretary of Commerce as provided for in 15 CFR Part 930, Subpart G, or informal negotiations through OCM. Both processes are voluntary and non-binding.

3.1.4 Modification of Consistency Determination Process

The DCMP recognizes the need for flexibility in this process, such as shorter review time, special consistency agreements, and waivers in the interests of national security or overriding national interest. The DCMP, through direct negotiations with federal agencies, may agree to limit the applicability of consistency review based upon the scope, size, location or other characteristics of the proposed federal action.

3.2 Federal Licenses and Permits

Activities requiring a federal license or permit are subject to consistency when the activities, whether in or outside the coastal zone, are likely to affect any land or water use or natural resource of Delaware's coastal zone management area. Applicants for federal licenses or permits must certify to the permitting federal agency and the DCMP that the proposed project will be conducted in a manner consistent with the enforceable policies of the DCMP. Proposed activities subject to this section include those requiring federal authorizations, certifications, approvals, or other forms of permission granted by any federal agency to an applicant, except OCS leases and federal agencies permit applications for federal permits which are covered separately.

Pursuant to 15 CFR§ 930.53(a), the DCMP has prepared a list of those federal licenses and permits which are considered to "affect the coastal zone (see subsection 3.2.8). No federal license or permit described on this list can be granted until after the applicant certifies that the proposed activity complies with and will be conducted in a manner consistent with the DCMP and the DCMP concurs.

The following procedures apply to federal licenses and permits:

3.2.1 Notification

Federal agencies are required to inform applicants for listed federal licenses and permits of the applicant's responsibility for notification to the State and submission of required information and a consistency certification. The notice and consistency certification shall comply with 15 CFR § 930.57 and § 930.58.

Applicants should consult with the DCMP at the earliest practicable time for assistance regarding the DCMP policies applicable to the proposed project and certification requirements.

When satisfied that the proposed activity meets the federal consistency requirements, all applicants for federal licenses or permits subject to consistency shall provide in the application to the federal licensing or permitting agency a certification that the proposed activity complies with and will be conducted in a manner consistent with the State's approved management program. The applicant's consistency certification shall be in letter format and be accompanied by the necessary data and information. The consistency certification shall contain the following statement:

"The proposed activity complies with Delaware's approved coastal management program and will be conducted in a manner consistent with such program."

At the same time an application is submitted to the federal agency for a listed federal license or permit, the applicant shall transmit a copy of the application and consistency certification to the DCMP.

3.2.2 Necessary Data and Information. The applicant shall furnish the DCMP with necessary data and information along with the consistency certification. Such information and data shall include:

3.2.2.1 A detailed description of the proposed activity and its associated facilities. This description should be adequate to permit an assessment of their probable coastal zone effects. This includes, but is not limited to, a copy of the federal permit application package, maps, diagrams, technical data, etc.

3.2.2.2 A brief assessment relating the probable coastal zone effects of the proposed project and its associated facilities on any land or water use or natural resource of the coastal zone to the relevant enforceable policies of the Delaware Coastal Management Program.

3.2.2.3 A brief set of findings, derived from the above assessment, indicating that the proposed activity, its associated facilities, and their effects are all consistent with the provisions of the DCMP.

3.2.2.4 Upon the applicant's request, the DCMP shall provide assistance for developing the assessment and findings described in subsections 3.3.2.2 and 3.3.2.3.

3.2.3 State Review

Pursuant to 15 CFR § 930.60, State review of a federal license or permit application is initiated upon receipt of a complete consistency certification and the necessary data and information as specified in 15 CFR § 930.57 and § 930.58.

The State will also provide adequate public notice of the proposed federal permit or license. The public notice process is as follows:

3.2.3.1 Public Notice

3.2.3.1.1 The DCMP will give at least 30 days public notice prior to response to consistency certification. In the event that a State permit is required for the same activity, the DCMP will coordinate their review with the State permitting agencies.

3.2.3.1.2 The notice shall describe the subject matter of the certification review, including a summary of the proposed activity and an announcement of the availability of consistency certification and accompanying public information.

3.2.3.1.3 The notice shall request interested parties to comment on the proposed activity.

3.2.3.1.4 The notice shall be published in a minimum of two Delaware newspapers of general circulation.

3.2.3.1.5 Public notice may be expanded in proportion to the degree of likely public interest involved, the substantial commitment of or impact on coastal resources, the complexity or controversy of the proposal, or for other good reasons.

3.2.3.1.6 As needed, a notice shall be provided indicating the date, time, and place of any hearing to be held by the DCMP.

3.2.3.2 Review Process

Review of consistency certifications and supporting documentation will be conducted by the DCMP in coordination with networked program partners. If a State permit is required for the same activity, the State permitting agency's review of the permit applications will become part of the DCMP's consistency review.

Consistency certifications will be reviewed to determine whether or not:

3.2.3.2.1 Sufficient information was submitted to determine consistency.

3.2.3.2.2 The proposed activity by itself, or in combination with existing projects, would cause a violation of a Delaware statute, regulation, or enforceable policy contained in the program, or result in an adverse impact of an unacceptable nature as defined by the management program.

3.2.3.2.3 Alternative measures exist, which if adopted by the applicant, would permit the proposed activity to be conducted in a manner consistent with the DCMP.

3.2.4 Concurrence with a Consistency Certification

At the earliest practicable time following the close of the public comment period, the DCMP shall notify the applicant and the federal and/or State permitting agency whether it concurs or objects to the consistency certification. Concurrence shall be in writing. If the DCMP does not respond within six months from the commencement of review, concurrence shall be conclusively presumed. If a consistency decision has not been issued within 3 months following the commencement of review, the DCMP shall notify both the federal permitting agency and applicant of the status of the matter and the basis for further delay.

3.2.5 Federal Action Following Delaware Concurrence with a Consistency Certification

If the DCMP issues a concurrence (or concurrence is conclusively presumed) with the applicants' consistency certification, the federal agency may approve the application for a federal license or permit (State permits may still be required).

3.2.6 Federal Action Following Delaware Objection to a Consistency Certification

At any time during the six month review period, the DCMP may object to the consistency certification. Such objection will be contained in a written notice from the DCMP to the applicant, the federal agency, and the Director of OCM. The objection shall:

3.2.6.1 Describe how the proposed action is inconsistent with the enforceable policies of the management program.

3.2.6.2 Identify alternative measures, where feasible, which would make the proposed action consistent.

3.2.6.3 Describe the nature and necessity of additional information required for making a consistency determination if the objection is based on insufficient information.

3.2.6.4 Describe the applicant's right to appeal to the Secretary of Commerce.

Upon receipt of a State's objection, the federal agency shall not grant the federal license or permit, except where, upon appeal to the Secretary of Commerce, the Secretary overrides DCMP's objection based upon a finding that the proposed activity is either consistent with the purposes of the CZMA or is in the interest of national security [ 15 CFR Part 930, Subpart H]. The State's objection shall include a statement informing the applicant of a right to appeal to the Secretary of Commerce (see subsection 3.5). Regardless of DCMP's consistency decision or the Secretary's decision in an appeal, the project may not commence until all necessary State permits are obtained.

3.2.7 Modification of Consistency Certification Process

Pursuant to 15 CFR § 930.54 the DCMP, with assistance from federal agencies, may monitor other federal license and permit activities that may reasonably be expected to affect Delaware's coastal zone management area, but are not listed in the DCMP. Delaware intends to monitor unlisted federal license and permit activities through the A-95 Process/State and Regional Clearinghouses, NEPA environmental impact statements, and routine reporting of regional resource agencies.

Should the DCMP determine that an unlisted license or permit activity could be reasonably expected to affect the coastal zone, notification will be sent to the appropriate federal agency, the Director of OCM, and the applicant of the DCMP's intent to review the activity for consistency pursuant to 15 CFR § 930.54.

3.2.8 Applicability. Federal license and permit activities requiring federal consistency certification:

3.2.8.1 Department of Defense - Army Corps of Engineers

3.2.8.1.1 Construction of dams or ditches across navigable waters, or obstruction of navigable waters required under Section 9 and 10 of the Rivers and Harbors Act of 1899 (33 USC 401, 403).

3.2.8.1.2 Establishment of harbor lines pursuant to Section 11 of the Rivers and Harbors Act of 1899 (33 USC 4004, 405).

3.2.8.1.3 Occupation of sea wall, bulkhead, jetty, dike, levee, wharf, pier or other work built by the United States pursuant to Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408).

3.2.8.1.4 Approval of plans for improvements made at private expense under USACE supervision pursuant to the Rivers and Harbors Act of 1899 (33 USC 565)

3.2.8.1.5 Discharge of fill into the waters of the United States pursuant to the Clean Water Act of 1987, Section 404.

3.2.8.1.6 All actions for which permits are required pursuant to Section 103 of the Marine Sanctuaries Act of 1972 (33 USC 1413).

3.2.8.1.7 Construction of Artificial islands and fixed structures on the Outer Continental Shelf pursuant to Section 4(f) or the Outer Continental Lands (43 USC) not otherwise covered in an OCS plan.

3.2.8.1.8 Port Access Routes pursuant to 43 USC 1333(F)

3.2.8.2 Department of Transportation - U.S. Coast Guard

3.2.8.2.1 Construction or modification of bridges, causeways or pipelines over navigable water pursuant to 49 USC 1455.

3.2.8.3 Environmental Protection Agency

3.2.8.3.1 NPDES Permits and other permits for federal installations, discharges in contiguous zones and ocean waters, sludge runoff permits and agricultural waste disposal pursuant to Sections 401, 402, 403, 405, and 318 of the Clean Water Act of 1987.

3.2.8.3.2 Permits pursuant to the Resource Recovery and Conservation Act of 1976.

3.2.8.3.3 Permits pursuant to the Clean Air Act of 1990.

3.2.8.4 Federal Energy Regulatory Commission

3.2.8.4.1 Licenses and permits ordering interconnection of electric transmission lines; issuing certificates of public convenience and necessity for interstate natural gas transmission and terminals approvals for abandonment of natural gas pipelines; and licenses required for non-federal hydroelectric projects and associated transmission lines.

3.2.8.4.2 Licenses of outer continental shelf (OCS) construction and operations and other authorizations and exemptions by the Federal Energy Regulatory Commission under the Federal Power Act 16 U.S.C 792- 823, as amended, for OCS activities including hydrokinetic energy activities.

3.2.8.5 Nuclear Regulatory Commission

3.2.8.5.1 Licensing and certification of the construction and operation of nuclear power plants and possession and use of by-products, source and special nuclear material, pursuant to Atomic Energy Act of 1954, Title II of the Energy Reorganization Act of 1974 and the National Environmental Policy Act of 1969.

3.2.8.6 Department of Energy

3.2.8.6.1 Regulation of gas pipelines, and licensing of import or export of natural gas pursuant to the Natural Gas Act (15 USC 717) and the Energy Reorganization Act of 1974.

3.2.8.6.2 Siting Construction and operation of non-nuclear power plants.

3.2.8.7 Department of Interior - Bureau of Ocean Energy Management

3.2.8.7.1 Leases, permits, approval of outer continental shelf (OCS) exploration and development and production plans, and other authorizations by the Bureau of Ocean Energy Management, Regulation and Enforcement under the Outer Continental Shelf Lands Act (OCSLA) 43 U.S.C. 1331 et. seq., as amended, for OCS activities including oil and gas activities, alternative energy activities, and alternate uses of existing facilities.

3.2.8.8 Federal Aviation Administration

3.2.8.8.1 Airport Layout Plans (FAA Order 5050.4A, paragraph 22(8)(d))

3.3 Federal Assistance to State and Local Governments

Pursuant to 15 CFR Part 930, Subpart F, State and local governments submitting applications for federal assistance affecting Delaware's coastal zone management area shall certify that the projects are consistent with the policies of the DCMP. Federal assistance means assistance provided under a Federal program to an applicant agency through grant or contractual arrangements, loans, subsidies, guarantees, insurance, or other forms of financial aid. An applicant agency means any unit of state or local government that submits an application for federal assistance.

3.3.1 DCMP Consistency Provision Relative to Federal Assistance

Applications by State, county and municipal agencies for federal assistance must be reviewed by the State Federal Aid Review Committee (FARC). Additionally, all applications from governmental entities which receive State funds must be reviewed and approved by the Delaware State Clearinghouse Committee (DSCC), a legislatively mandated review body whose membership includes representatives of the executive and legislative branches of State government. The DSCC may veto applications and prevent their further consideration by a federal agency. Other reviews are also required at the regional level for projects in New Castle County.

To ensure consistency with the DCMP and conform to NOAA regulations, DCMP reviews all federal assistance applications and make the final consistency determination in consultation with the FARC and the DSCC.

In the event the DCMP objects to the applicant agency's proposal on grounds of inconsistency with the DCMP, the objection must include the reasons and supporting information for such action.

The DCMP will then notify the applicant agency and the federal agency of the State's objection. The State's objection notification will:

3.3.1.1 Describe how the proposed project is inconsistent with specific elements of the management program.

3.3.1.2 Identify alternative measures, if any, which would make the proposed action consistent.

3.3.1.3 Describe the nature and necessity of additional information required for making a consistency determination if the objection is based on insufficient information.

3.3.1.4 Describe the applicant's right to appeal to the Secretary of Commerce.

3.3.2 Modification of Consistency Certification Process

The DCMP will monitor federal assistance projects and programs through the State Clearinghouse review process and other means. If the monitoring indicates that significant impacts on the State's coastal resources have occurred or could occur from federal assistance projects, a formal consistency review and determination pursuant to the federal regulations will be requested. In such cases, the DCMP will notify the applicant agency, involved federal agencies, and the Director of OCM of its intention to make such a determination.

Some federal assistance programs are neither subject to OMB Circular A-95 nor to the review process required by the Delaware State Clearinghouse Committee. In these cases the DCMP will monitor program activity through the Federal Register, informal and formal federal agency contact, newsletters, state-local technical assistance projects, and other means. Where it is determined that such programs could have a significant impact, the DCMP will review the federal program and, if appropriate, request that such federal program be subject to the A-95/Clearinghouse review and approval process. A formal consistency certification may subsequently be required.

The DCMP reserves the right to establish a federal assistance program consistency list based on either or both of the preceding evaluations and to implement the federal assistance consistency certification process and authorities provided by 15 CFR Part 930, Subpart F.

3.4 OCS Exploration, Development and Production Activities

The federal regulations, 15 CFR Part 930, Subpart E, provides that Outer Continental Shelf (OCS) plans submitted to the U.S. Secretary of the Interior for OCS exploration, development and production, and all associated federal licenses and permits described in detail in such OCS plans, shall be subject to a federal consistency review.

3.4.1 Applicability. This requirement applies to:

3.4.1.1 License and permit activities that are described in the OCS plan, such as, permits to drill, and rights-of-use and easements for the construction and maintenance of structures, platforms, gathering and flow lines.

3.4.1.2 OCS-related licenses and permits, such as for pipeline corridors, artificial islands or other fixed structures, transport of dredged materials, and discharges or emissions subject to the Clean Water Act of 1987 or the Clean Air Act of 1990.

3.4.2 OCS Activities Subject to Consistency

A certification of consistency for each activity described in detail in the OCS plan shall be attached to the OCS plan at the time it is submitted to the Secretary of the Interior. No federal official or agency shall grant any license or permit for any activity described in detail in the OCS plan until the State has received such certification and plan together and until the State has concurred or conclusive concurrence is presumed.

OCS plan license and permit actions not described in detail in the OCS plan are subject to the provisions for federal licenses and permits.

3.4.3 Notification and Review Process

Any person submitting to the U.S. Secretary of the Interior any OCS plan must furnish the DCMP with a copy of the OCS plan certification.

When satisfied that the proposed activities described in detail in the OCS plan meet the Federal consistency requirements, the OCS lessee or operator shall declare in the consistency certification that:

"The proposed activities described in detail in this plan comply with Delaware's approved coastal management program and will be conducted in a manner consistent with such program."

Supporting information to accompany the certification shall include the comprehensive offshore, nearshore and onshore data and material required by the Department of the Interior's operating regulations governing exploration, development and production operations on OCS [ 30 CFR 250 ] . Information supplied must include an assessment of the probable coastal zone effects, and a set of findings indicating that the proposed activities, their associated facilities, and their combined effects, are all consistent with the provisions of the management program.

In order to ensure that all levels of government and the general public are aware of and have an opportunity to comment on such plans, the DCMP will provide public notice of the receipt of such plans, the procedures for comments, and the review closing date.

3.4.4 State Concurrence with Consistency Certification

At the earliest practicable time the DCMP will notify the applicant, the Secretary of the Interior, and the Director of OCM whether it concurs with or objects to the consistency certification.

Concurrence by the State agency shall be conclusively presumed in the absence of an objection within six months following commencement of State review.

If a consistency decision has not been issued within 3 months following the commencement of review, the DCMP shall notify both the federal permitting agency and applicant of the status of the matter and the basis further delay.

If the State issues a concurrence or if conclusive concurrence is presumed, the OCS lessee or operator will not be required to submit additional certifications and supporting information for State review at the time federal applications are actually filed for the federal permit activities described in detail in the OCS plan. However, the lessee or operator must supply the DCMP with copies of permit applications to allow the State to monitor the approved OCS activities.

3.4.5 State Objection to a Consistency Certification

In the event the State objects to the OCS plan certification, it will accompany its objection with reasons and supporting information concerning each activity which the State finds to be inconsistent with the management program. The State's objection will include a statement informing the person of a right of appeal to the Secretary of Commerce on the grounds described below. Following receipt of a state agency objection, federal agencies may not issue any of the licenses or permits for activities described in detail in the OCS plan.

3.5 Appeals and Secretarial Review Relative to Federal Consistency

The provisions of 15 CFR Part 930, Subpart H, outline procedures by which the Secretary of Commerce may override a state's objection if the Secretary finds that a federal license or permit activity, including those described in detail in an OCS plan, or a federal assistance activity, which is inconsistent with the DCMP, may be federally approved because the activity is consistent with the objectives or purposes of the federal CZMA, or is necessary in the interest of national security.

3.5.1 Secretary Ruling

In order to be "consistent with the objectives or purpose of the federal CZMA", an activity already inconsistent with the DCMP, must be found by the Secretary of Commerce to be permissible because it satisfies the following three requirements:

3.5.1.1 The activity furthers one or more of the competing national objectives or purposes contained in Sections 302 or 303 of the Act.

3.5.1.2 When performed separately or when its cumulative effects are considered, it will not cause adverse effects on the natural resources of the coastal zone substantial enough to outweigh its contribution to the national interest.

3.5.1.3 There is no reasonable alternative available which would permit the activity to be conducted in a manner consistent with the DCMP.

3.5.2 Filing Appeal

Pursuant to 15 CFR § 930.125, an appellant may file a notice of appeal with the Secretary of Commerce within 30 days of the appellant's receipt of DCMP's objection to a consistency certification for a federal license or permit (including those described in an OCS plan), or a federal assistance program.

The notice of appeal shall be accompanied by a statement in support of the appellant's position, along with supporting data and information. The appellant shall send a copy of the notice of appeal and accompanying documents to the federal and state agencies involved. An application fee must accompany the appeal to the Secretary: $200 for minor appeals and $500 for major appeals, unless the Secretary, upon consideration of an applicant's request for fee waiver, determines that the applicant is unable to pay the fee. The Secretary will also collect such other fees as are necessary to recover the full costs of administering and processing the appeals.

7 Del. Admin. Code § 2201-3.0

14 DE Reg. 1390 (06/01/11)
22 DE Reg. 407 (11/1/2018) (Final)