7 Del. Admin. Code § 2201-2.0

Current through Register Vol. 28, No. 4, October 1, 2024

Section 2201-2.0 - Federal Consistency

2.1 Introduction

2.1.1 The Federal Coastal Zone Management Act of 1972, as amended, (CZMA; 16 USC §§1451-1465) provides that each federal agency conducting or supporting activities, whether within or outside the coastal zone, affecting any land or water use or natural resource of the coastal zone, must do so in a manner which is, to the maximum extent practicable, consistent with Delaware's Coastal Management Program (DCMP).

2.1.2 In addition, federal permits and licenses, outer continental shelf (OCS) plans, and grants-in-aid which may affect Delaware's coastal zone management area must be consistent with the DCMP. The federal consistency provisions are intended to provide a means for improved federal-local coordination regarding important federal actions which could affect the coastal resources of Delaware.

Consistency reviews enable the State to:

Plan for and manage impacts resulting from a federal project, permit or program;

Provide for analysis of the effects of federal actions;

Identify federal actions that could adversely affect coastal resources, general land use patterns, or public investment requirements; and

Provide for an examination of federal actions in the context of the goals, objectives, and policy network contained in the DCMP.

2.1.3 Consistency offers State agencies, through the DCMP within the Department of Natural Resources and Environmental Control (DNREC), an opportunity for a positive voice in federal actions. It ensures that state concerns and policies will be considered by federal agencies in federal development projects, the issuance of federal licenses and permits, the approval of OCS plans and programs, and the award of federal grants, loans, subsidies, insurance, or other forms of federal aid.

2.2 Applicability of Consistency Provisions. Sections 307(c) and (d) of the CZMA provide that:

2.2.1 Federal activities and development projects affecting any land or water use or natural resource of Delaware's coastal zone management area shall be conducted consistent with the DCMP to the maximum extent practicable.

2.2.2 No federal license or permit shall be granted until:

a) the DCMP has concurred with the applicant's certification;

b) by the DCMP's failure to act, consistency is conclusively presumed; or,

c) on appeal to the Secretary of Commerce, the Secretary overrides the state's objection. (See subsection 3.5)

2.2.3 No federal agency shall grant a license or permit for any activity described in detail in an OCS plan which affects any land or water use or natural resource in the coastal zone until the DCMP concurs with the certification of consistency made by the person submitting the OCS plan, except as overridden by the Secretary of Commerce. (See subsection 3.5); and

2.2.4 Federal agencies shall not approve proposed assistance projects to state and local governments that affect the coastal management area and are inconsistent with the DCMP, except upon an override by the Secretary of Commerce. (See subsection 3.5)

7 Del. Admin. Code § 2201-2.0

22 DE Reg. 407 (11/1/2018) (Final)