New York Coastal Zone Consistency Certification (13-NY-c)
The CMP is part of the nation-wide Coastal Zone Management Program established by the Coastal Zone Management Act of 1972 (CZMA). The CZMA is a voluntary state-federal partnership, which encourages states to adopt their own management programs in order to meet the federal goals of protection, restoration, and appropriate development of coastal zone resources. The national Coastal Zone Management Program is overseen by the National Oceanic and Atmospheric Administration (NOAA) and regulated pursuant to 16 U.S.C. §§ 1451 et seq., Coastal Zone Management and 15 C.F.R. §§ 930 et seq., Federal Consistency with Approved Coastal Management Programs.
The CZMA allows coastal states to develop a coastal management program, setting out enforceable policies that guide federal actions that effect coastal lands and waters. Once a state management program is approved, most projects authorized by a federal agency, including federally-licensed hydroelectric and transmission projects, must comply with the state’s CMP. 15 CFR Part 930, Subpart D; 16 USC 1456(c)(3)(A).
The Coastal Zone Management Act (CZMA) applies to both projects located within the State’s coastal areas and to projects located outside of the State’s coastal areas that would affect the State’s coastal resources or coastal land and water uses. See 15 CFR § 930.11; Department of State, Office of Planning & Development (New York): Consistency Review. The CZMA defines “coastal zone” as “the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of State title and ownership[.]” 16 USC 1453(1).In New York, the CZMA is administered by the New York Department of State (DOS) pursuant to the State’s federally approved CMP, approved Local Waterfront Revitalization Programs (LWRPs), and the Long Island Sound regional coastal management program. A LWRP is a locally prepared, comprehensive land and water use plan for a community’s natural, public, working waterfront, and developed waterfront resources. A map identifying New York’s coastal boundaries is available at the DOS’s Coastal Boundary Map (New York) website. If the project is not located within the State’s coastal boundaries and will not affect coastal resources, land, or water uses, CZMA consistency review is not required.
Coastal Zone Consistency Certification Process
13-NY-c.1 to 13-NY-c.2 – Does the Proposed Project Require a Lease, Permit, or License from a Federal Agency?
If the project requires a lease, permit, or license from a federal agency (i.e., a FERC license, a right-of-way, a development permit, etc.), the developer may be required to provide the DOS with a consistency certification and obtain the DOS’s concurrence with that certification.
CZMA consistency review is triggered by, among other things, federal approval of hydroelectric projects. Generally, the Federal Energy Regulatory Commission (FERC) may not issue a FERC license or exemption for a hydropower project until the project developer obtains a consistency concurrence from the DOS confirming that the project is consistent with the State’s coastal policies. 15 CFR § 930.
13-NY-c.3 to 13-NY-c.4 - Does the Project Qualify for a Nationwide Permit From the Army Corp of Engineers?
A nationwide permit exists for "discharges of dredged or fill material associated with hydropower projects having: (a) Less than 5000 kW (5 MW) of total generating capacity at existing reservoirs, where the project, including the fill, is licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act of 1920, as amended; or (b) a licensing exemption granted by the FERC pursuant to Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and Section 30 of the Federal Power Act, as amended."
If a project falls within a U.S. Army Corps of Engineers nationwide permit, the DOS is not required to conduct a CZMA consistency review of the project. However, the developer must submit a pre-construction notification to the district engineer prior to commencing with the project. However, please note that the Nationwide Permit Program is reevaluated every 5 years and the DOS’s position is subject to change.
13-NY-c.5 - Consistency Certification
If the project does not qualify for a nationwide permit, the developer must submit a consistency certification to the DOS and to the authorizing federal agency (i.e., FERC), along with any other data and information necessary to assess the coastal effects of the proposed project.
The consistency certification and accompanying necessary data and information must include:
- A completed Federal Consistency Assessment Form (New York) (FCAF);
- An identification of coastal policies affected by the developer’s proposed activity;
- A brief assessment of the project’s effects on the applicable coastal policies;
- A statement indicating how the activity is consistent with each applicable policy;
- A copy of the federal application;
- A detailed description of the proposed activity and its associated facilities and coastal effects;
- A map(s) showing the geographic location of the proposed activity;
- Site map(s) and diagrams(s) drawn to scale showing all components of the proposed activity and their location on the site;
- Recent color photos of the site;
- A written statement of purpose and need for the activity;
- Identification of the owners of the abutting upland properties and underwater lands;
- A written analysis of alternatives to the proposed activity considered by the applicant;
- A copy of the FEIS if required by the federal agency or by a state agency having jurisdiction of the proposed acidity;
- Copies of permit, license, etc.; and
- Applications and related correspondence submitted to involved state agencies and for energy facilities subject to Articles VII or X of the NYS Public Service Law.
All documentation must be submitted to the Siting Board for its consideration through to the conclusion of the public hearing process. 15 CFR § 930.58; Department of State, Office of Planning & Development (New York): Consistency Review.
13-NY-c.6 to 13-NY-c.8 - Review Consistency Certification and Necessary Data for Completeness
The DOS reviews the developer’s certification and necessary data for completeness. If the applicant fails to submit all of the necessary data and information, the DOS will notify the developer and the authorizing federal agency within 30 days of receiving the incomplete submission. The consistency review will not begin until the DOS receives all of the required materials from the developer. 15 CFR § 930.60.
13-NY-c.9 - Initiate Consistency Review
Consistency review is the decision-making process through which the DOS reviews the developer’s consistency certification and necessary data and information and any other relevant information and determines whether or not the proposed project is consistent with the coastal policies of the CMP or applicable approved LWRP or regional CMP. During the consistency review process, the DOS considers several general policy categories, including:
- Fish and wildlife;
- Flooding and erosion hazards;
- Public access;
- Historic and scenic resources;
- Agricultural lands;
- Energy and ice management;
- Water and air resources; and
13-NY-c.10 – Provide Public Notice
After determining that the developer’s submittal is complete, the DOS publishes public notice of the proposed project. The DOS issues its public notice through the NYS Register and on its website and/or provides a joint public notice with the authorizing federal agency. A public notice is not required for those projects that meet the Department’s criteria for a General Concurrence.
The public notice must:
- Specify that the proposed activity is subject to review for consistency under the policies of the management program;
- Provide sufficient information to serve as a basis for comment;
- Specify a source for additional information; and
- Specify a contact for submitting comments to the management program.
13-NY-c.11 – Hold Public Hearings
At the discretion of the DOS, public participation may include one or more public hearings. Public hearings are open to any interested party and provide the opportunity for individuals to express any concerns regarding the project. The DOS may not require the developer or authorizing federal agency to conduct the public hearing(s). 15 CFR § 930.61
13-NY-c.12 - Determination on Developer’s Consistency Certification?
Following the DOS review of the proposed project and public comments, the DOS can concur with, conditionally concur with, or object to the developer’s consistency certification. DOS concurrence with the developer’s consistency certification may be presumed if the DOS fails to provide a response within six months of receiving the developer’s consistency certification and all of the necessary supporting data and information. 15 CFR § 930.62; 15 CFR § 930.63.
13-NY-c.13 – Notify Developer and Authorizing Federal Agency of Final Determination
At the earliest practicable time, the DOS must notify the developer and the authorizing agency of its determination to concur with or object to the developer’s consistency certification. 15 CFR § 930.62.
13-NY-c.14 – Does the DOS Object to the Developer’s Consistency Certification?
If the DOS finds that the project is not consistent with the State’s coastal policies and, therefore, objects to the developer’s consistency certification, the DOS must describe the reasons for the objection and notify the agency and developer that it has not approved the developer’s consistency certification. If the DOS objects to the consistency certification, the CZMA precludes the federal agency from authorizing the project. 15 CFR § 930.63; 15 CFR § 930.64.
13-NY-c.15 to 13-NY-c.17 - Is the DOS’s Concurrence Conditional Upon the Developer Taking Steps to Minimize or Mitigate the Project’s Effects?
The DOS may conditionally concur with the developer’s consistency certification.
If the developer agrees with the conditions of the DOS’s conditional concurrence, the developer must amend its federal application(s) to include the State’s conditions within 30 days of receiving notice of the DOS’s determination. 15 CFR § 930.4; 15 CFR § 930.62. If the developer (or the authorizing federal agency) does not agree with the conditions of the DOS conditional concurrence, it must immediately notify the DOS that the conditions are not acceptable. Under these circumstances, the DOS’s conditional concurrence automatically becomes a DOS objection to the developer’s consistency certification. 15 CFR § 930.4.
13-NY-c.18 to 13-NY-c.19 – Does the Developer Appeal the DOS’s Determination?
If the developer does not agree with the DOS’s determination, the developer may appeal the DOS’s decision to the U.S. Secretary of Commerce (Secretary) within 30 days of receiving notice of the determination. 15 CFR § 930.43; 15 CFR § 930.44.
The developer must send a copy of the appeal and any supporting information to the New York State DOS Office of Planning and Development and to the federal permitting or licensing agency. The developer’s appeal must be based on the grounds that the proposed project is consistent with the objectives of the CZMA and/or the project is necessary to the interest of national security. 15 CFR § 930.63(e).
If the developer does not file an appeal, the DOS’s decision becomes final and the developer may not proceed with the proposed project. 15 CFR § 930.64.
13-NY-c.20 - Does the Secretary Grant the Developer’s Request to Override the Determination?
The Secretary may overturn the DOS’s objection if the proposed project is consistent with the objectives or purposes of the CZMA or if the project is necessary to the interest of national security. 15 CFR § 930.63.
13-NY-c.21 – Final Consistency Decision
Following the review period, the DOS prepares a final consistency decision, stating that the proposed project is or is not consistent with the State’s coastal policies and notifies the applicant and the authorizing federal agency. If DOS concurs with the activity the authorizing federal agency may approve the federal license or permit and the developer may continue with the project. 15 CFR § 930.62.
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