7 Del. Admin. Code § 2201-4.0

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

Section 2201-4.0 - Procedures for Federal Interstate Consistency Reviews

Interstate consistency review is the process by which an activity occurring wholly in one state but with the potential to affect the coastal resources of another state, can be reviewed by the affected state for consistency with its federally approved coastal management program. Federal consistency regulations, 15 CFR Part 930, subpart I, outline this review process.

4.1 Notification and Review Process

Federal agencies, applicants or applicant agencies proposing activities listed in subsection 4.4 within the specified boundaries must notify the DCMP of the proposed activity. Notification shall comply with 15 CFR § 930.57 and § 930.58 as described in subsections 3.2.1 and 3.2.2 of this document. The DCMP has 30 days from receipt of the applicant's consistency certification and necessary data and information to notify the applicant if the action will be reviewed for consistency with Delaware's coastal management policies, as described in subsection 3.2.3 of this document.

4.2 Concurrence with an Interstate Consistency Certification

At the earliest practicable time, the DCMP shall notify the applicant and 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 determination has not been issued within 3 months following the commencement of review, the DCMP shall notify both the federal permitting agency and the applicant of the status of the matter and the basis for further delay.

4.3 Objection to an Interstate Consistency Certification

4.3.1 The intent of Interstate consistency review is to foster early coordination between states and federal agencies and to establish a consistent review process. Through this process, the DCMP seeks formal notification of listed activities within the specified boundaries; to be provided the opportunity to review such projects; and to have any issues or concerns addressed through the consultation process.

4.3.2 In the event the DCMP objects to the consistency certification, it will accompany its objection with reasons and supporting information concerning each activity which the DCMP finds to be inconsistent with the management program. The objection will include a statement informing the applicant of the right of appeal to the Secretary of Commerce. Following receipt of a State agency objection, federal agencies may not issue any of the licenses or permits associated with the proposed activity.

4.4 Applicability

4.4.1 Activities Subject to Interstate Consistency Review:

4.4.1.1 The DCMP has identified three categories of federal activities that warrant consideration through the provisions of interstate consistency: Dredging and Dredged Material Disposal, Offshore Alternative Energy Development, and Introduction of Non-native Shellfish. The following table provides more detail and identifies the locations of the activities subject to review:

4.4.1.1.1 Dredging and Dredged Material Disposal

4.4.1.1.1.1 Dredging, filling, mining, and excavation of 50,000 or more cubic yards, excluding beach nourishment projects

4.4.1.1.1.1.1 Applies to activities in New Jersey occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to the Delaware State line; and/or below the high tide line of the Delaware River and Bay from Artificial Island to Cape May

4.4.1.1.1.1.2 Applies to activities in Pennsylvania occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to Delaware State line.

4.4.1.1.1.2 Subsurface discharge of dredged and fill materials, relocation or redistribution of sediments of 50,000 or more cubic yards, excluding beach nourishment projects

4.4.1.1.1.2.1 Applies to activities in New Jersey below the high tide line of the Delaware River from the Commodore Barry Bridge south to the Delaware State line; below the high tide line of the Delaware River and Bay from Artificial Island to Cape May, NJ; and/or confined upland disposal facilities with the capacity to handle at least 50,000 cubic yards of dredged material that discharge directly into Delaware River or Bay.

4.4.1.1.1.2.2 Applies to activities in Pennsylvania occurring below the high tide line of the Delaware River from the Commodore Barry Bridge south to Delaware State line; and/or confined upland disposal facilities with the capacity to handle at least 50,000 cubic yards of dredged material that discharge directly into Delaware River.

4.4.2 Offshore Alternative Energy Development

4.4.2.1 Alternative Energy Development (i.e. siting, placement, construction and/ or decommissioning of wind, wave, and tidal energy capture technologies, excluding metrological towers and buoys)

4.4.2.1.1 Applies to activities in New Jersey occurring within the Delaware River and Bay from Artificial Island to Cape May and State ocean waters from 0-3nmi, extending from Hereford Inlet south to the tip of Cape May.

4.4.2.1.2 Applies to activities in Maryland occurring within State ocean waters from 0-3 nmi.

4.4.3 Introduction of Non-native Shellfish

4.4.3.1 Introduction of Non-native Shellfish involving placement of new substrate or manipulating existing substrate

4.4.3.1.1 Applies to activities in New Jersey occurring within Delaware River and Bay from Artificial Island to Cape May

4.5.3.1.2 Applies to activities in Maryland occurring within the Chesapeake Bay

4.5.3.1.3 Applies to activities in Virginia occurring within the Chesapeake Bay

7 Del. Admin. Code § 2201-4.0

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