Washington Coastal Zone Management Federal Consistency Determination (13-WA-a)
Coastal Zone Management Federal Consistency Determination Process
13-WA-a.1 to 13-WA-a.2 – Is the Activity in a County within Marine Shorelines or Will the Activity Impact a County with Marine Shorelines
Washington’s coastal zone for purposes of the CZM Program includes the 15 counties with marine shorelines: Clallam, Grays Harbor, Island, Jefferson, King, Kitsap, Mason, Pacific, Pierce, San Juan, Skagit, Snohomish, Thurston, Wahkiakum, and Whatcom counties. The CZM Program applies to activities and development within the 15 counties as well as activities outside these counties which may impact Washington’s coastal resources.
13-WA-a.3 – Is the Activity Undertaken by a Federal Agency, Require Federal Approval, or Use Federal Funding
Federal activities that affect land use, water use, or natural resources of the coastal zone must comply with the six laws identified in the Washington Coastal Zone Management Program Document. The laws include:
- The Shoreline Management Act;
- The State Environmental Policy Act (SEPA);
- The Clean Water Act (see also RCW 90.48);
- The Clean Air Act (see also WAC 143-400);
- The Energy Facility Site Evaluation Council; and
- The Ocean Resource Management Act.
The federal consistency review process allows the public, local governments, Indian Tribes, and state agencies an opportunity to review federal actions likely to affect coastal resources in Washington. Activities can trigger the federal consistency review process in three ways:
- If the activity is undertaken by a federal agency (i.e., constructing nearshore facilities, dredging new channels – see Appendix E of Managing Washington’s Coast);
- If the activity requires a federal approval (i.e., authorization, certification, approval, license, permit, or other form of permission which a federal agency may issue an applicant – see Appendix E of Managing Washington’s Coast); or
- If the activity uses federal funding (i.e. grants or loans).
If the activity is outside of the coastal zone or does not fall into one of the above categories, the activity will not require CZM consistency review. 15 CFR § 930.
13-WA-a.4 – Determination of Consistency Checklist or Statement Form; Federal Consistency Document
Federal Agency Action
Where the developer is a federal agency undertaking the activity, the federal agency will review the activity for consistency with the six laws and prepare a federal consistency determination under 16 USC 1456(c)(1)(C) and its implementing regulations 15 CFR § 930.36. The determination describes the activity and the activity’s impact on coastal resources. If the activity has an impact on coastal resources, the federal agency must provide a statement that the activity is consistent to the maximum extent practicable with enforceable policies within the six laws. If the federal agency has not completed a consistency review for a project, the WSDE may contact the federal agency and require the federal agency to complete the consistency process. Federal agency activity consistency determinations must be submitted 90 days prior to the start of the proposed activity. The Federal agency must submit the following:
- The determination, information, and analysis required by 15 CFR 930.39, which includes a statement indicating whether the activity will be undertaken in a manner consistent to the maximum extent practicable, with Washington’s CZMP, a detailed description of the activity, the coastal zone effects, and comprehensive data and information to support these;
- If required by federal law other than the CZMA, an approved Shoreline Management Act permit, variance, or exemption and evidence of compliance with other applicable enforceable policies.
Activities Requiring Federal Approval or Funding
Where the developer requires a federal approval or where the developer will receive federal funding, the developer will review the activity for compliance with the six laws and prepare a federal consistency certification ( see Certification of Consistency with Washington's Coastal Zone Management Program for Federally Funded Activities and Certification of Consistency with Washington's Coastal Zone Management Program for Federally Licensed or Permitted Activities) as required by 16 USC 1456(c)(3)(A) and its implementing regulations 15 CFR §930.57. The certification must describe the activity and its impact on coastal resources. As with the federal agency, if the activity has an impact on coastal resources, the developer must provide a statement that the activity is consistent with the six laws. An applicant for a federal permit or license must submit the following information:
- A detailed description of the proposed activity and its associated facilities that is adequate for use in assessing the probable effects, employing maps, diagrams, and data when appropriate;
- A brief appraisal of the probable effects of the proposal and a short set of findings indicating that the project, its associated facilities, and their effects are consistent with the Washington Coastal Zone Management Program’s enforceable polices;
- An approved shoreline permit, variance or exemption and evidence of compliance with the Washington State Environmental Policy Act (SEPA) (where necessary under a shoreline management program); and
- Evidence of compliance with other applicable enforceable policies.
Note: Where the activity requires more than one federal license or permit, the developer should submit one consistency certification for all licenses and permits if possible.
Note: In the case of U S Army Corps of Engineers permits, the developer must forward the certification to the Corps, who will then forward the document to the WSDE. A developer who will receive a federal grant or funding must submit the following information:
- A summary of the purpose for which the federal assistance will be used, including the federal funding agency, the location where any physical improvements will be constructed, and a vicinity map.
Note: Where more than one federal agency provides assistance on the same activity, the WSDE will review all applications at the same time if practicable.
13-WA-a.5 to 13-WA-a.6 – Review Application for Completeness
The WSDE will review the certification for completeness and accept if complete. The WSDE will notify the developer if the materials are incomplete and the WSDE requires additional information.
13-WA-a.7 – Publish Notice of Federal Consistency Certification
16 USC § 1456(c)(3)(A) and its implementing regulations 15 CFR § 930.61 require public notice for consistency certifications for licensing and permitting activities. The form of notice varies depending on the type of approval required:
- For Section 404, Section 10, and Section 404 Nationwide Permits approved by the U S Army Corps of Engineers, the Corps attaches a consistency certification notice to the Corps public notice for these permits and the Corps circulates the public notice;
- For 404 Nationwide Permits that require individual CZM concurrence where the application is submitted to the WSDE, the regional Coastal Zone Management 401 Water Quality Certification contact circulates the public notice;
- For Coast Guard permits, the Coast Guard attaches the certification notice to the Coast Guard public notice;
- For certification for all other permits, the developer must provide the notice. The developer may include the notice in a notice for a Shoreline Management Act permit, another permit or approval, or as an independent notice. The developer must publish the notice at least once in a newspaper of general circulation in the immediate area that the proposed activity is likely to affect. In addition, the developer must send a copy of the notice to any affected local government, state agency, Indian tribe, and federal agency. The public notice must include:
- A summary of the proposed activity;
- The location of the proposed activity;
- Language stating the consistency certification and accompanying public information may be inspected at the appropriate WSDE office (including the address of the office as well as the name and address of a person or position that interested persons may contact for more information);
- Language requesting that the public submit comments to the WSDE and a deadline for submittals.
Where the activity is likely to generate substantial public interest, the WSDE may require the developer to provide the notice to additional agencies, organizations, or individuals as well as require the developer to publish the notice in newspapers reaching a larger geographic area.
13-WA-a.8 – Submit Affidavit of Publication
The developer must submit a copy of the affidavit of publication and an affidavit attesting that the notice was mailed to persons and organizations as required by the WSDE to the WSDE within 15 days of when the developer published the notice.
13-WA-a.9 – Comment on Federal Consistency Certification
Members of the public have a minimum of 21 days to submit written comments to the WSDE on the developer’s federal consistency certification.
13-WA-a.10 to 13-WA-a.13 – Review Checklist, FCD, and Public Comments
The WSDE will review the developer or agencies certification materials and any public comments on the certification materials.
The WSDE will concur with a federal agency’s determination of federal consistency if the determination is consistent to the maximum extent practicable with Washington’s CZM Program. If the federal agency requires a permit or approval under enforceable policy, the WSDE will not make the determination until the federal agency obtains the permit or approval. If the WSDE objects to the federal agency’s consistency determination, the WSDE will notify the federal agency via letter with the reasons for its objection. The WSDE’s letter includes:
- A description of how the activity is inconsistent with specific provisions of Washington’s CZM Program; and
- Any existing alternative measures, which if adopted would allow the federal agency to proceed with the activity.
Federal Approval or Funding
The WSDE will concur with the developer’s determination of federal consistency if the determination is consistent to the maximum extent practicable with Washington’s CZM Program. Concurrence is conclusively presumed in the absence of the WSDE issuing an objection within the statutory time limit of up to six months. 16 USC 1456(c)(3)(A). If the developer’s activity requires a permit or approval under an enforceable policy of Washington’s CZM Program, the WSDE will not concur with a certification until after the necessary approval is made.
If the WSDE objects to the developer’s certification, the WSDE will notify the developer; federal agency; and Director of the Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service, NOAA via letter with the reasons for the objection. The requirements for the WSDE’s objection letter are the same as above. 15 CFR §930.63. Specific to federal funding, the WSDE will not issue a written concurrence unless specifically requested by the federal funding agency. If the WSDE issues a letter objecting to the activity, the federal agency may not approve financial assistance for the activity.
13-WA-a.14 – Appeals Process (Optional)
The appeals process and post decision negotiation process differs slightly depending on whether the activity is a federal agency action or a developer action requiring federal approval or funding.
If Washington objects to a consistency determination, a federal agency can negotiate with the state of Washington or either party can seek mediation from the Office of Ocean and Coastal Resource Management or from the United States Secretary of Commerce under 15 CFR 930 Subpart G. In addition, the President of the United States has the authority to decide that the activity is in the “paramount interest of the country” and exempt a federal agency activity from consistency requirements. 16 USC 1456(c)(1)(B). Note: Members of the public can appeal a concurrence by the WSDE to a federal agency’s federal consistency determination to the Washington Pollution Control Hearing Board (PCHB) within 30 days of the WSDE’s decision.
Federal Approval or Funding
If Washington objects to a developer’s consistency certification, the developer may appeal the state’s objection to the United States Secretary of Commerce, who has the authority to override Washington’s objection if the activity is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security. 15 CFR 930 Subpart H. Under 15 CFR §930.121 a federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the Act if it satisfies each of the following three requirements:
- The activity furthers the national interest as articulated in §302 or §303 of the CZMA, in a significant or substantial manner;
- The national interest furthered by the activity outweighs the activity's adverse coastal effects, when those effects are considered separately or cumulatively;
- There is no reasonable alternative available which would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program. The Secretary of Commerce may consider but is not limited to considering previous appeal decisions, alternatives described in objection letters from the WSDE and alternatives and other information submitted during the appeal. The Secretary must not consider an alternative unless the WSDE submits a statement, in a brief or other supporting material, to the Secretary that the alternative would permit the activity to be conducted in a manner consistent with the enforceable policies of the management program.
Under 15 CFR §930.122 a federal permit or license or federal assistance is necessary in the interest of national security if a national defense or other security interest would be significantly impaired if the activity was not approved. The Secretary of Commerce must provide public notice of the appeal in the Federal Register and in a publication of general circulation in the immediate area of the coastal zone the proposed activity is likely to affect within 30 days of receiving the Notice of Appeal. 15 CFR §930.128.
Further, after the federal agency or developer exercises these administrative appeal options, the decision may be reviewed in court.
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- 16 U.S.C. § 1456
- 15 CFR § 930
- Clean Air Act
- Clean Water Act
- State Environmental Policy Act (SEPA)
- Ocean Resource Management Act
- RCW 80.50 Energy Facility Site Evaluation Council
- RCW 90.48 - Water Pollution Control
- RCW 90.58 - Washington Shoreline Management Act of 1971
- WAC 173-400 - General Regulations for Air Pollution Sources
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- Managing Washington’s Coast
- Certification of Consistency with Washington's Coastal Zone Management Program for Federally Funded Activities
- Certification of Consistency with Washington's Coastal Zone Management Program for Federally Licensed or Permitted Activities
- Washington State Department of Ecology Coastal Zone Management Webpage
- Washington Environmental Permit Handbook - Coastal Zone Management Federal Consistency
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