Federal Consistency

All federal actions with reasonably foreseeable coastal effects are subject to CRM review for federal consistency, no matter where they occur. NOAA defines coastal effects at § 930.11(g) as:

“…any reasonably foreseeable effect on any coastal use or resource resulting from a federal action. (The term ‘‘federal action’’ includes all types of activities subject to the federal consistency requirement under subparts C, D, E, F and I of this part.) Effects are not just environmental effects, but include effects on coastal uses. Effects include both direct effects which result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects which result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions.”

In general, federal agencies have broad discretion in determining whether an action will have reasonably foreseeable coastal effects. However, there are instances where coastal effects are presumed based on type activity, its location, and whether or not the state has listed (see “State Lists of Federal Activities”) the specific activity in its NOAA-approved Coastal Management Plan (CMP).

NOAA regulations at 15 C.F.R. Part 930 require that all federal actions with reasonably foreseeable effects on a state’s coastal uses or resources must be conducted in manner consistent with the enforceable policies of the state’s NOAA-approved coastal management plan. This is known as the “effects test”. The effects test is applied through a combination of federal agency discretion and the coastal state’s development of listed activities. Federal actions with reasonably foreseeable coastal effects are subject to the federal consistency no matter where they occur – whether within or outside of the state’s coastal zones.

NOAA encourages states to develop lists of federal actions under each subpart category that are likely to have coastal effects. These lists inform the effects test and have different meaning depending on the location of the activity and the type of federal action – coastal effects can either be presumed or left to federal agency discretion. These lists are published on NOAA’s Federal Consistency website.

For Subpart C activities (Federal agency activities), all development activities (construction, dredging, etc.) that occur within the designated coastal zone are presumed to have coastal effects and the federal agency should submit a federal consistency determination to CRM. If the federal agency determines that there are no reasonably foreseeable coastal effects as a result of the activity, the federal agency must submit a “negative determination” (see Federal Consistency Submissions, below).

Non-development activities are subject to the discretion of the federal agency. However if an activity is listed AND located within the coastal zone, the federal agency should provide CRM with a “negative determination” when it determines that there are no reasonably foreseeable effects.

For Subpart D and F activities, listed activities occurring within the coastal zones are presumed to have coastal effects. Non-federal entities do not have the option to submit a negative determination when they find that a proposed listed activity has no real coastal effects. The effects test for listed Subpart D and F activities taking place outside of the coastal zones is subject to the discretion of the federal permitting or funding agency, respectively.

The table below describes how the lists determine the outcomes of the effects test for each of the possible circumstances.

*Requires the submission of a Negative Determination if the federal agency determines that there are no reasonably foreseeable coastal effects. See “Submission Types”.

CRM has the option to request authorization from NOAA to review unlisted activities that are likely to result in reasonably foreseeable coastal effects if the Federal agency or applicant for federal authorization or funding declines to submit the activity for a federal consistency review. CRM has the burden to demonstrate the coastal effects that likely to occur from an activity before NOAA will approve an unlisted activity review.

Federal Agency Activities (Subpart C) include activities performed by a Federal agency or a contractor on behalf of a Federal agency. Subpart C activities can further be broken down into “development” and “non-development” activities. Development activities are those activities that include any type of construction, demolition, channel or basin dredging, or similar modifications of the physical environment. Non-development activities include regulatory promulgation, the issuance of general permits, or planning activities. Subpart C is also designated in NOAA regulations as a residual category, meaning that any federal activities do not cleanly fit within in any of the other regulatory subparts are covered under the requirements of Subpart C by default. Some example activities include:

Development –

• U.S. Army Corps of Engineers (USACE) breakwater or beach nourishment project
• Improvements to a military base
• USACE dredging of a navigation channel

Non-Development –

• Fisheries Plans by the National Marine Fisheries Service
• Naval exercises
• Disposal of federal land by the General Services Administration
• Issuance of USACE Nationwide Permits

Federally Licensed and Permitted Activities (Subpart D) are activities performed by non-federal entities, but require federal permits, licenses, or other forms of federal approval.

Some example licenses and permits include:

• USACE Section 404 permits for in-water construction
• USACE Letters of Permission (LOP)
• Federal Energy Regulatory Commission (FERC) licenses for energy facilities

Outer Continental Shelf (OCS) exploration, production and development plans (Subpart E) include activities conducted on the outer continental shelf in federal waters. Coastal states must have a NOAA-approved geographic location description (GLD) in offshore federal waters in order to be eligible to review federal OCS actions for federal consistency. Pennsylvania has no approved or pending GLD’s for the outer continental shelf.

Federal Financial Assistance to State and Local Government (Subpart F) include activities conducted by state and local governments under funding received from federal agencies. Subpart F is applicable only to public sector recipients of federal funding. Private sector activities that receive federal funding may be subject to the requirements under Subpart C.

Some example federal financial assistance activities include:

• Federal Highway Administration funds to state and local governments
• construction grants for wastewater treatment works
• hazardous waste management trust fund
• Housing and Urban Development grants

Federal Activities having Interstate Coastal Effects (Subpart I) relates to federal actions occurring within specified areas (documented by a Geographic Location Description, or GLD) outside the Commonwealth of Pennsylvania that have reasonably foreseeable effects on Pennsylvania’s coastal uses or resources. Pennsylvania CRM has NOAA-approved interstate consistency jurisdiction over certain federal activities taking place in the State of Ohio. The GLD for this area is defined as from the Ohio/Pennsylvania border approximately 3 miles westward, to an aqueduct located on Ohio’s Lake Erie shoreline at the northern terminus of Lake Erie Street in the City of Conneaut, Ohio, and extends from the Ordinary High Water Mark of 572.8 feet (IGLD 1955) (OHWM), lakeward to the United States/Canadian border located in Lake Erie. This interstate consistency jurisdiction was requested from NOAA and awarded to CRM primarily in an attempt to address the downdrift erosional impacts in Pennsylvania created by the presence of the Conneaut Harbor structure in Ashtabula County, Ohio and its disruptive effects on longshore sediment transport.

Pennsylvania’s interstate consistency jurisdiction is limited to:

1. Federal shoreline structures
2. Federal dredging and disposal activities,
3. Federal licenses and permits related to dredging, filling, construction and maintenance of groins, jetties, docks, boat ramps, and shoreline structures, and the discharge of dredge or fill material into navigable waters, and
4. The development of or changes to Nationwide Permits, State Programmatic General Permits, and Regional Permits.

POLICY 1.1: Setback

It is the policy of the Coastal Resources Management Program to require municipalities with bluff recession hazard areas along the Lake Erie shoreline as determined in the “Shoreline Erosion and Flooding - Erie County” report of 1975* to enact setback ordinances affecting stationary structures. These ordinances will regulate construction within a specified distance from the edge of the bluff. At a minimum, the setback distance is computed as the economic life of the structure times the local bluff recession rate per year (in feet). In addition, it is the policy of the CRMP to provide written and verbal guidance to the municipalities 394-0300-001 to assure consistent and coordinated enforcement of the BRSA. The CRMP will compile all field interpretations and department guidance for the BRSA into a written guidance document and provide the document to the municipalities. The document shall be amended and updated as new interpretations occur.

*This refers to the study as described in the CRM Technical Guidance Document (394-0300-001). The study and bluff recession hazard area (BRHA) designations were updated in November of 2004 (Study to Tentatively Designate Bluff Recession Hazard Areas) and adopted into the Title 25 Chapter 85 Bluff Recession and Setback Regulations on September 19, 2009.

POLICY 1.2: Structures

It is the policy of the Coastal Resources Management Program to regulate, through permit, the siting of any water obstruction or encroachments along Lake Erie, to assure proper planning, design, construction, maintenance, and monitoring, in order to prevent unreasonable interference with water flow (which includes sediment laden beach enriching currents) and to protect navigation.

POLICY 1.3: Stormwater Management

It is the policy of the Coastal Resources Management Program to assist Erie County and affected coastal municipalities in the preparation (individually or jointly on a watershed basis) of stormwater management plans, and in the implementation of the plans by assisting them in updating or amending codes, regulations, and ordinances to regulate development in such a manner as to mitigate the adverse impacts to Lake Erie bluffs due to increased rates of stormwater runoff. (Also see Policies 1.4, 1.5, 4)

POLICY 1.4: Technical Assistance

It is the policy of the Coastal Resources Management Program to provide technical assistance and advice concerning the design of structural and nonstructural methods for shore protection and bluff stabilization. In addition, it is the policy of the Coastal Resources Management Program to continue to support scientific research on shore protection, recession rates, littoral transport, and other aspects of the coastal environment of Lake Erie. (Also see Policies 1.1, 1.2, 1.3, 10.2)

POLICY 1.5: Floodplains

It is the policy of the Coastal Resources Management Program acting through the Department and in concert with the Department Of Community And Economic Development to actively assist and to help ensure that identified flood prone coastal municipalities develop state approved floodplain management regulations which incorporate, at a minimum, the requirements of the National Flood Insurance Program and the requirements of the state Floodplain Management Act. It is the policy of the Coastal Resources Management Program to regulate the construction of or substantial improvement to various types of structures and obstructions in the designated floodplains in order to:

• (i) Encourage planning and development in floodplains which are consistent with sound land use practices,
• (ii) Protect people and property in floodplains from the dangers and damage of floodwaters and from materials carried by such floodwaters,
• (iii) Prevent and eliminate urban and rural blight which results from the damages of flooding,
• (iv) Implement a comprehensive and coordinated program of floodplain management, based upon the national flood insurance program, designed to preserve and restore the efficiency and carrying capacity of the streams and floodplains of the commonwealth,
• (v) Assist municipalities in qualifying for the national flood insurance program,
• (vi) Provide for and encourage local administration and management of floodplains, and
• (vii) Minimize the expenditure of public and private funds for flood control projects and for relief, rescue, and recovery efforts.

POLICY 1.6: Floodplains – Direct Action*

Furthermore, it is the policy of the Coastal Resources Management Program to assist local municipalities in the amelioration of periodic flooding due to increased surface runoff from areas adjacent to the floodway by encouraging the development, on a watershed basis, of comprehensive stormwater management plans which prevent increased rates of runoff. (Also see Policies 1.2, 1.4).

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930. But see Policy 1.5.

POLICY 2.1: Dredging and Spoil Disposal

It is the policy of the Coastal Resources Management Program to ensure that dredging and spoil disposal and related activities including the recovery of commercially valuable sand and gravel in the coastal zones, will be regulated to protect against obstruction to navigation, reductions in flood flow capacity, and damages to the public interest, as well as minimize harmful impacts to fish and wildlife habitats. (Also see Policies 2.1, 3.1, 4, 9.1, 9.2, 9.4).

POLICY 2.2: Hydraulic Dredging*

It is the policy of the Coastal Resources Management Program to recommend that hydraulic dredging be used instead of mechanical dredging, whenever feasible. (Also see Policies 2.1, 3.1, 4, 9.1, 9.2, 9.4).

*Policy 3.4 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 3.1: Support Fish Life

It is the policy of the Coastal Resources Management Program to ensure that, to the extent of intrastate control, coastal waters shall not contain substances attributable to point or nonpoint source waste discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant, or aquatic life including cold-water fish, warm-water fish, or migratory fish. (Also see Policies 1.2, 2.1, 4, 9.2).

POLICY 3.2: Stocking

It is the policy of the Coastal Resources Management Program to manage the commonwealth’s coastal waters in such a manner to augment native stocks and introduce appropriate species, only after careful evaluation, such as muskellunge in the Delaware Estuary and salmonids in Lake Erie in order to provide diverse, unique, and bountiful catches for the commonwealth’s coastal fishermen.

POLICY 3.3: Access*

It is the policy of the Coastal Resources Management Program to improve access to the Delaware Estuary and the Lake Erie waterfronts through the acquisition of new sites and/or the expansion of existing sites. (Also see Policies 5.1, 5.2, 9.1,10.1).

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930. But see Policy 5.1. This policy is implemented by awarding pass-through grant funding to support the acquisition of properties for the purpose of providing public access.

POLICY 3.4: Studies*

It is the policy of the coastal resources management program to undertake detailed technical studies of coastal fisheries, their aquatic habitats, and associated issues that impact their management.

*Policy 3.4 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 4.1: Wetlands - Enforcement/Regulations

It is the policy of the Coastal Resources Management Program to preserve, protect, enhance and restore the remaining wetlands within the commonwealth’s coastal areas by regulating through permit: draining, dredging, filling, and other activities that affect water quality as well as the course, current or cross section of any watercourse, floodway, wetland or other body of water. This will ensure the protection of wetlands’ functions and values such as: native plant, fish, and wildlife habitat including threatened or endangered species as identified in the federal Endangered Species Act of 1973, Pennsylvania’s species of special concern classified under the authority of the Wild Resource Conservation Act, the Fish and Boat Code or the Game and Wildlife Code; storage areas for flood waters; buffers against shoreline erosion; groundwater recharge; and water purification areas. Any wetland which is impacted in a coastal zone area will be replaced and/or mitigated within the coastal zone area in a manner consistent with the regulations of the Department.

POLICY 4.2: Wetlands - Direct Action

Furthermore, it is the policy of the Coastal Resources Management Program to protect wetlands from cumulative impacts associated with increased runoff from development and other activities occurring in adjacent areas by encouraging the development of comprehensive stormwater management plans, that regulate surface runoff and the resultant introduction of sediment, pesticides, salts, and toxic materials into wetlands. (Also see Policies 1.3, 2.1, 3.1, 9.1, 9.2, 10.3).

POLICY 5.1: Public Access for Recreation/Additional Access

It is the policy of the Coastal Resources Management Program to provide additional public access opportunities along the waterfronts of Lake Erie and the Delaware River for active recreation such as swimming, fishing, and boat launching, as well as for more passive activities such as sightseeing and picnicking. (Also see Policies 3.3, 5.2, 9.1).

POLICY 5.2: Geographic Areas of Particular Concern (GAPC’S)

It is the policy of the Coastal Resources Management Program to give high priority to acquisition and/or development of GAPC’s, nominated as areas of significant natural value and areas of historical, cultural, or recreational significance, to provide public access opportunities for active and/or passive forms of recreation. (Also see Policies 3.1, 5.1, 9.5).

POLICY 6.1: Historic Preservation*

It is the policy of the Coastal Resources Management Program to assist the Pennsylvania Historical and Museum Commission in the identification, restoration, and preservation of archaeologically, architecturally and historically significant sites and structures in the commonwealth’s coastal zones. (Also see Policies 4, 10.2).

*Policy 6.1 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 7.1: Port Activities/Development*

It is the policy of the Coastal Resources Management Program to actively attract and encourage the siting of port dependent economic activities in the commonwealth’s coastal ports. (Also see Policies-9.1, 10.3).

*Policy 7.1 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 7.2: Port Activities/Planning*

It is the policy of the Coastal Resources Management Program to utilize its fiscal and other pertinent resources to support long-range, comprehensive planning for the future development and growth of the Port of Erie and the Pennsylvania ports of the Delaware Estuary, which encourages the attraction, enhancement, and development of water dependent economic activities. (Also see Policy 2.1, 5.1, 9.1, 9.4).

*Policy 7.2 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 7.3: Port Activities/Urban Base Enhancement*

It is the policy of the Coastal Resources Management Program to utilize fiscal and other available management resources to: encourage the enhancement of current viable economic activities, encourage the attraction of new economic activities which adapt to the areas’ changing needs, and encourage improvements in the areas’ infrastructure to provide a strong economic base for the urbanized sections of the commonwealth’s coastal zones.

*Policy 7.3 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 8.1: EFS/Permitting

It is the policy of the Coastal Resources Management Program to ensure through regulations, by permit, that energy facilities such as oil and gas refineries, electric generating stations (coal, hydro, oil, and gas), electric generating substations, gas drilling, and liquification of natural gas operations locating in the coastal areas are sited in such a manner that the coastal areas ecosystems are not unreasonably adversely affected. (Also see Policies-1.5, 2.1, 4.1, 8.2, 9.1, 9.2, 9.3).

POLICY 8.2: Energy Facilities/Natural Gas

It is the policy of the Coastal Resources Management Program to facilitate the production of natural gas supplies in Lake Erie using proper environmental safeguards that are designed to minimize adverse air and water quality impacts associated with resource exploration and development. (Also see Policies 2.1, 4, 8.1, 9.1, 9.2, 9.3).

POLICY 8.3: Site Selection*

It is the policy of the Coastal Resources Management Program to utilize coastal resources management funds and provide other pertinent assistance to encourage coastal municipalities to amend their comprehensive plans to reflect the recommendations contained in the energy facility siting planning process developed by the coastal resources management program, which among other things recommends that whenever feasible, new energy facilities are located adjacent to existing ones. (Also see Policy 10.2).

*Policy 8.3 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 8.4: Energy Resources/Outer Continental Shelf*

It is the policy of the Coastal Resources Management Program to support the development of outer continental shelf oil and gas resources through all available means, provided that the necessary environmental safeguards are enforced through regulation by the appropriate federal and state agencies to ensure that the integrity of the adjacent fish and wildlife habitat is not irreparably damaged due to drilling and other development activities. (Also see Policies 3.1, 9.2, 9.3).

*Policy 8.4 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 9.1: Consistency*

It is the policy of the Coastal Resources Management Program to initiate a program of “state consistency” to ensure that all state administrative departments and independent administrative boards and commissions and other state agencies shall enforce and act consistently with the enforceable policies of the Pennsylvania Coastal Resources Management Program.

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930. This policy relates to CRM coordinating with other Departmental programs and Commonwealth agencies through memoranda of understanding or other cooperative devices to ensure that external (to CRM) administrative and permitting actions do not conflict with CRM’s NOAA-approved enforceable policies.

POLICY 9.2: Water Quality

It is the policy of the Coastal Resources Management Program to adopt by reference, the requirements of the federal Clean Water Act (p.l. 95-217, as amended) and to incorporate these requirements into the commonwealth’s Coastal Resources Management Program.

POLICY 9.3: Air Quality

It is the policy of the Coastal Resources Management Program to adopt by reference, the requirements of the federal Clean Air Act and to incorporate these requirements into the commonwealth’s Coastal Resources Management Program.

POLICY 9.4: Permit Improvement*

It is the policy of the Coastal Resources Management Program to periodically initiate, coordinate, and participate in comprehensive studies aimed at improving the regulatory permitting process in the commonwealth’s coastal zones. (Also see Policies 9.1, 10.3).

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930. POLICY 9.5: Choices for Pennsylvanians*

POLICY 9.5: Choices for Pennsylvanians*

It is the policy of the Coastal Resources Management Program to embrace the concepts set forth by “choices” and to promote the policy objectives and policies of “choices” in the commonwealth’s coastal zones, to the extent permitted by the Coastal Resources Management Program’s coordinative mechanisms and implementation.

*Policy 9.5 is an “Encouragement Policy” and is not binding under 15 C.F.R Part 930. However, under § 930.39(c) and § 930.58(a)(3), a federal agency or an applicant for federal licensing or permitting should demonstrate adequate consideration to policies that are in the nature of recommendations.

POLICY 10.1: Pennsylvania Open Meeting Law*

It is the policy of the Coastal Resources Management Program to ensure that all meetings, where formal action is to be taken, be open to the public, preceded by public notice and held in reasonably accessible locations.

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930.

POLICY 10.2: Participation

It is the policy of the Coastal Resources Management Program to provide citizens, special interest groups, and all other segments of the public with opportunities for early and continuous involvement and participation in the commonwealth’s Coastal Resources Management Program, through the development of effective communication and participation measures. (Also see Policy 10.1).

POLICY 10.3: Coastal Zone Advisory Committee*

It is the policy of the Coastal Resources Management Program to establish a Coastal Zone Advisory Committee whose purpose will be to: provide a forum from which to address state and local coordination on coastal issues, periodically review the Coastal Resources Management Program with respect to public responsiveness and meeting the needs of the commonwealth, and to advise the Environmental Quality Board on regulations affecting coastal resources.

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930.

POLICY 11.1: Aquatic Nuisance Species

It is the policy of the Coastal Resources Management Program, acting through the Department and in concert with the Department of Agriculture, The Fish and Boat Commission, and other networked partners, to actively assist in preventing aquatic nuisance species from being introduced into, spread within, or transferred out of the coastal zones to other waters/watersheds of the commonwealth, and to facilitate their eradication, where environmentally appropriate, with biological, chemical, and other means of control.

POLICY 11.2: Aquatic Nuisance Species – Encouragement

Furthermore, it is the policy of the Coastal Resources Management Program to limit the introduction and spread of aquatic nuisance species in the coastal zone by providing funding and technical assistance to encourage development of research and outreach programs that will Effectively reduce the impact of aquatic nuisance species on Pennsylvania’s ocean resources, a coordinated, multi-species approach to aquatic nuisance species management, and a rapid response plan for unintentional introductions. (Also see Policies 3.2, 3.4, 4.1, 9.1)

*This policy is not applicable to Coastal Zone Management Act Federal Consistency reviews under 15 C.F.R. Part 930. But see Policy 11.1.

The submission deadlines, content requirements, and review timelines vary depending upon the type of activity and which subpart under which the activity is regulated. There are three types of federal consistency submissions:

Federal Consistency Determinations: Federal Consistency Determinations are submissions provided by federal agencies (or contractors acting on behalf of federal agencies) for activities carried out subject to 15 C.F.R Part 930 Subpart C. These are activities that are sponsored by federal agencies and are deemed or presumed to have reasonably foreseeable coastal effects. The purpose of a federal consistency determination is to describe the reasonably foreseeable coastal effects and present the proposed mitigation activities.

Federal consistency determinations must demonstrate that the federal activity is “consistent to the maximum extent practicable”. However, “consistent to the maximum extent practicable” is defined in 15 C.F.R Part 930.32 (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. Furthermore, § 930.232(a)(3) clarifies, “…Federal agencies shall not use a general claim of a lack of funding or insufficient appropriated funds or failure to include the cost of being fully consistent in Federal budget and planning processes as a basis for being consistent to the maximum extent practicable with an enforceable policy of a management program…”

Negative Determinations: Negative Determinations are submissions provided by federal agencies to declare that, although and proposed activity is listed or otherwise presumed to trigger the effects test and warrant a federal consistency submission, no real coastal effects are reasonably foreseeable. Negative determinations are used to document the Federal agency’s analysis of the proposed activity and support its conclusion that there are no coastal effects. CRM is not required to respond to a federal agency’s negative determination, however a CRM objection to a negative determination may result in the federal agency needing to submit a more developed federal consistency determination. In practice, CRM responds to all federal consistency negative determinations.

Negative determinations are available only to federal agencies for Subpart C activities.

Federal Consistency Certifications: Federal Consistency Certifications are submissions provided by non-federal applicants for federal authorizations (Subpart D) or public sector applicants for federal financial assistance (Subpart F). Activities conducted within the coastal zones and receiving listed federal authorizations or funds from listed federal financial assistance programs are presumed to have reasonably foreseeable coastal effects. Applicants are responsible for certifying that the activity will be conducted in a manner that is consistent with CRM’s enforceable policies, including providing a policy analysis to demonstrate how consistency is being achieved.

Federal Consistency Certifications submitted under Subparts D and F must demonstration that the activity will be conducted in a manner that is fully consistent with the enforceable policies of the state’s NOAA-approved coastal management plan. Applicants under Subparts D and F do not have the option to certify that the proposed activity will is “consistent to the maximum extent practicable.”

CRM has developed a standard form (#3010-FM-IWO0007) that can be used for all three types of federal consistency submissions. 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.

Federal actions with reasonably foreseeable coastal effects are subject to the federal consistency no matter where they occur – whether within or outside of the state’s coastal zones.

CRM coordinates the review of CZMA federal consistency submissions with its networked program partners (see About the Program) and with the associated DEP Regional Office. Subpart C and Subpart D reviews are posted in the Pennsylvania Bulletin to allow for public participation and relevant program partners are consulted through direct contact for comment on relevant reviews. Public comments are accepted for 15 days following publication of the review in the Pennsylvania Bulletin.

Submission details are reviewed for consistency with CRM enforceable policies (see Enforceable Policies). When CRM finds that one or more project details are in conflict with an enforceable policy, CRM works directly with the project sponsor to resolve the conflict either through mutually-agreed upon project modifications, or through the development of a conditional concurrence. In circumstances where no mutual resolution can be reached, CRM may issue a formal objection to the proposed activity.

State Coastal Programs have three options when responding to a federal consistency determination or certification:

Concurrence: CRM will issue a formal concurrence letter when the program agrees that a proposed activity will be conducted in a manner consistent with its enforceable policies. When CRM provides its concurrence, the activity may proceed as proposed. Any activity modifications that occur after CRM has provided its concurrence may require the submittal of new federal consistency determination or certification if the modifications result in substantive changes to the project scope or design.

Conditional Concurrence: In circumstances where a proposed activity conflicts with or incompletely addresses one or more of CRM’s enforceable policies, the program may issue a conditional concurrence. The conditions are designed to resolve any enforceable policy conflicts and are usually developed in cooperation with the project applicant. In some instances, negotiations between an applicant and CRM may be ongoing as the review deadline approaches. If the parties are at an impasse, CRM may issue an objection, but more often will issue a conditional concurrence that details the actions that must be taken in order for the activity to be deemed consistent. When an applicant rejects the conditions established in a conditional concurrence, CRM’s final disposition automatically reverts to an objection.

Objection: CRM may issue an objection to a federal activity if the federal consistency submission is incomplete and the deficiencies are not resolved within the allowable review period, or when the project clearly conflicts with one or more of CRM’s enforceable policies and those conflicts are irreconcilable with the applicant. In the event of an objection, applicants have remedy actions available to them under the 15 C.F.R. Part 930 regulations (see Mediation and Appeals, below). However, CRM’s findings during a consistency review are not appealable to any state judicial body or administrative review board.

Subpart C Objection: Under § 930.43(d) A federal agency may proceed with a proposed activity over a state’s objection when 1) the federal agency determines that it is “consistent to the maximum extent practicable” (however, see Federal Consistency Determinations, under Federal Consistency Submissions, above), or 2) the federal agency determines that the activity is fully consistent, despite the state’s objection(s). Mediation remedies (See Mediation and Appeals, below) are available to help state and federal agencies resolve conflicts arising from the federal consistency review process.

Subpart D and F Objections: If a state objects to a federal license or permit activity under Subpart D or to a federal financial assistance activity under Subpart D, the federal agency may not provide its authorization or release federal funding for the project. The applicant may appeal the state’s objection only to the Secretary of Commerce (see Mediation and Appeals, below).

CRM’s findings during a federal consistency review are not appealable to any state judicial body or administrative review board. Mediation and appeal procedures for CZMA federal consistency reviews are established under 15 C.F.R. Part 930 Subparts G and H, respectively. There are no provisions for third party appeals of CRM federal consistency review decisions.

Mediation

If CRM objects to a federal agency’s consistency determination, the state and federal agency may agree to non-binding mediation by either the Secretary of the Department of Commerce or NOAA’s Office of Ocean and Coastal Resources Management (OCRM). Secretarial mediation is a formal process that includes a public hearing, written briefs, and meetings between the parties. OCRM mediation is less formal and historically has been successful at resolving conflict.

Appeal to Secretary of Commerce

If CRM objects to an applicant’s consistency certification under 15 C.F.R. Part 930, Subparts D, E or F, the applicant may appeal the state’s objection to the Secretary of Commerce. Appeal procedures can be found at 15 C.F.R. Part 930, Subpart H. The appeals process is not available to federal agencies.