Ohio Coastal Zone Consistency Certification (13-OH-c)
The OCMP is part of the nationwide Coastal Zone Management (CZM) Program established by the Coastal Zone Management Act of 1972 (CZMA). The CZMA is a voluntary state-federal partnership that 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. Ohio Coastal Management Program Document. The national CZM 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 affect coastal lands and waters. Once a state’s management program is approved, many projects authorized by a federal agency, including federally licensed hydroelectric, transmission, and geothermal projects, must comply with the state’s Coastal Management Program (“CMP”). 15 C.F.R. Part 930, Subpart D; 16 U.S.C. § 1456(c)(3)(A).
The OCMP is designed to foster the integrated management of the Lake Erie coastal area. By establishing a comprehensive plan and synthesizing agency responsibilities and regulatory authorities, the OCMP establishes a functional plan that sets out coastal management objectives and facilitates intergovernmental cooperation to ensure that those objectives are implemented. Ohio Coastal Management Program Document at 1-1. In Ohio, the CZMA is administered by the Office of Coastal Management (OCM), within the ODNR, pursuant to the OCMP, which was federally approved on May 16, 1997. Ohio Department of Natural Resources Coastal Management Program Website; O.R.C. § 1506.02(A). The OCM coordinates all activities between ODNR and other state agencies in implementing the OCMP. Ohio Coastal Management Program Document at I-1.
The 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 C.F.R. § 930.11. 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 U.S.C. § 1453(1).
No project or activity directly affecting a coastal area in the state and proposed by or subject to the approval of the state may be approved until the ODNR director has determined that it is consistent with the OCMP policies. O.R.C. § 1506.03.The OCMP is a comprehensive, “networked” program that incorporates the policies in Ohio – Ohio Rev. Code §§ 1506.01 et seq., Coastal Management as well as other Ohio rules, regulations, and policies to protect uses and resources of coastal areas in the state. Ohio Coastal Management Document at I-1; Ohio Coastal Management Document at 7-1.
Coastal Zone Consistency Certification Process
13-OH-c.1 – Will the Activity Impact Coastal Shorelines?
In Ohio, a developer may need a Coastal Zone Consistency Certification (Consistency Certification) to the ODNR’s Office of Coastal Management (OCM) for developments that impact coastal shorelines. Activities and development that involve federal action, federal licenses or permits, or federal funding must confirm compliance with the Ohio Coastal Management Program (OCMP) if the activity directly and significantly impacts coastal waters within the parameters of the regulated boundary. Ohio Coastal Management Program Document at 1-2.
The Ohio “coastal area” is defined as “the waters of Lake Erie, the islands in the lake, and the lands under and adjacent to the lake, including transitional areas, wetlands and beaches. The coastal area extends in Lake Erie to the international boundary line between the United States and Canada and landward only to the extent necessary to include shorelands, the uses of which have a direct and significant impact on coastal waters as determined by the director of natural resources.” O.R.C. § 1506.01(A).
In several areas the coastal area extends many miles upstream because activities in those areas may result in direct and significant impacts upon the protected waters. For a detailed description of lands considered coastal areas, see Ohio Coastal Management Program Document at 3-4 to 3-5.
The OCMP encompasses the following nine issue areas:
- Coastal erosion and flooding;
- Water quality;
- Wetlands and other ecologically sensitive resources;
- Ports and shoreline development;
- Recreation and cultural resources;
- Fish and wildlife management;
- Environmental quality;
- Energy and mineral resources; and
- Water quantity.
Additionally, the OCMP designates the following areas as geographic areas of public concern:
- Critical fish habitat;
- Ports and harbors;
- State nature preserves and wildlife areas;
- Coastal erosion and flood hazard areas;
- Public parks and access areas;
- Historic and archaeological sites; and
- Sites designated by the International Joint Commission as Areas of Concern that lie within the proposed OCMP management boundary.
13-OH-c.3 – Is the Activity Undertaken by a Federal Agency, Require Federal Approval, or Use Federal Funding?
A developer may need to provide a Consistency Certification to the OCM, which will subsequently make a federal consistency determination, for developments located within, or that may affect, Ohio’s coastal area, and that involve federal action. Ohio Coastal Management Program Document.
Federal actions include:
- Federal agency activities and development projects;
- Private developer activities that require federal license, permits, or other forms of approval; and
- State and local government activities conducted with federal assistance.
All federal agencies must determine whether their activities affect Ohio’s coastal area and are subject to OCMP consistency requirements. 15 C.F.R. § 930.36(a). Each federal agency must review its activities within Ohio’s coastal area, as well as all of its activities outside the coastal area but within the Ohio Lake Erie watershed, to determine whether those activities affect the coastal area. 15 C.F.R. § 930.33.
13-OH-c.4 – Coastal Zone Consistency Certification; Federal Consistency Determination (FCD)
Federal Agency Action
Federal agencies must review their proposed activities, whether within or outside the Ohio coastal area, affecting any land or water use or natural resource of the coastal area, to determine that they are consistent with the OCMP. Ohio Coastal Management Program Document at 7-2. The federal agency must submit to OCM consistency determinations for federal activities affecting any coastal use or resource of Ohio’s coastal area. Federal activities subject to OCMP consistency review are found in the Ohio Coastal Management Program Document at 7-13 to 7-15.
Federal agencies must submit their consistency determination to OCM at least 90 days before federal approval of the activity, unless OCM and the agency agree to extend the notification period beyond 90 days. Ohio Coastal Management Program Document at 7-2.
The federal agency’s consistency determination for a federal activity affecting the Ohio coastal area must include:
- A brief statement indicating whether the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the OCMP;
- A detailed description of the proposed activity and associated facilities; and
- Comprehensive data and information to support the federal agency’s consistency statement.
If the federal agency determines that a consistency determination is not required, it must notify OCM of that determination at least 90 days before final approval of the activity. That notice must list the reasons for the negative determination. 15 C.F.R. § 930.35(d).
Ohio reserves the right to request a consistency determination from a federal agency for any proposed federal activity, regardless of location, that, in OCM’s opinion, may affect any coastal use or resource of Ohio’s coastal area. 15 C.F.R. § 930.33(5)(c).
Activities Requiring a Federal License or Permit
Federally licensed or permitted activities include any authorization, certification, approval, or other form of permission that any federal agency is empowered to issue to an applicant. 15 C.F.R. § 930.51. Federal license and permit activities subject to OCMP consistency review are found in the Ohio Coastal Management Program Document at 7-15 to 7-17.
OCM reviews federal licenses or permits within the Ohio coastal area; however OCM may also review federal license and permit activities outside the coastal area but which affect the coastal area. Only activities that reasonably can be expected to affected the Ohio coastal area will be reviewed. Ohio Coastal Management Program Document at 7-6. The developer should not presume project consistency based upon issued state permits or licenses. Ohio Coastal Management Program Document at 7-7.
The developer must submit to the federal permitting agency and to OCM a certification statement specifying that the project complies with and will be conducted in a manner consistent with the OCMP. The statement must include the following: “The proposed activity complies with Ohio’s approved coastal management program and will conducted in a manner consistent with such program” (15 C.F.R. § 930.57). Generally, the information required for consistency determination is the same as that required by the federal permitting agency. Ohio Coastal Management Program Document at 7-7. However, information from the federal application is insufficient, the developer must provide the following information to OCM:
- A detailed description of the proposed activity and its associated facilities, which is adequate to permit the assessment of possible coastal area impacts;
- A copy of the federal application and all supporting information supplied to the federal agency;
- A brief assessment relating the probable coastal area effects of the proposed and associated facilities to the enforceable policies of the OCMP; and
- A brief set of findings indicating that the proposed activity, associated facilities, and effects are all consistent.
Note: If the developer requires several related licenses or permits, those applications should be consolidated for OCM review in order to minimize duplication of effort and avoid unnecessary delays. Ohio Coastal Management Program Document at 7-9.
Activities Receiving Federal Funding
All applications by state and local governments for federal assistance for projects affecting Ohio’s coastal area must be reviewed by OCM for consistency with the OCMP. 15 C.F.R. § 930 Subpart F. Federal assistance projects subject to OCMP consistency review are found in the Ohio Coastal Management Program Document at 7-17 to 7-19.
Federal agencies must notify the ODNR of applications for federal financial assistance subject to OCMP consistency review. Ohio Coastal Management Program Document 7-10.
13-OH-c.5 to 13-OH-c.6 – Review Consistency Certification and FCD for Completeness
OCM begins reviewing the consistency certification once it receives a copy of the certification and necessary supporting information. OCM may not begin its consistency review until it receives all of the required materials from the developer. 15 C.F.R. § 930.60. If the certification packet is incomplete, OCM notifies the developer of the missing information. The developer must submit the additionally necessary data and/or information before OCM begins its review of the materials.
13-OH-c.7 to 13-OH-c.8 – Publish Notice of Consistency Certification and FCD
16 U.S.C. § 1467(c)(3)(A) and its implementing regulation 15 C.F.R. § 930.61 require public notice for consistency certifications for federal licensing and permitting activities. Public notice and comment is coordinated by the federal agency. Interested persons may provide comments to the federal agency and may also forward comments to ODNR regarding the developer’s consistency statement. All comments are forwarded to ODNR for use in determining consistency with the OCMP. Ohio Coastal Management Program Document at 7-8.
The public notice must:
- Specify that the proposed activity is subject to review for consistency under the policies of the OCMP;
- 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 OCMP.
13-OH-c.9 – Review Consistency Certification and FCD
OCM reviews the project consistency certification and any public comments.
Federal Agency Action
OCM must inform the federal agency of its agreement or disagreement with the consistency determination within 60 days from receipt of the determination, unless OCM notifies the federal agency within that time that its response will be delayed, and OCM provides reasons for that delay. If no response or request for extension of time is received from OCM within 60 days, agreement by the OCM is presumed. 15 C.F.R. § 930.41; Ohio Coastal Management Program Document at 7-5.
Activities Requiring a Federal License or Permit
OCM must notify the developer of its agreement or disagreement with the consistency determination with six months from receipt of the complete certification and all the necessary data and information. 15 C.F.R. § 930.60(a). If no decision has been made within three months, OCM must notify the developer and the federal agency of the status of the review and reasons for that delay. If OCM does not respond within six months, concurrence is presumed. 15 C.F.R. § 930.62(a); Ohio Coastal Management Program Document at 7-8 to 7-9.
13-OH-c.10 to 13-OH-c.12 – Does OCM Object to the Federal Agency’s Consistency Certification?
After OCM completes its review, it issues a Concurrence, Conditional Concurrence, or Objection to the project. If OCM issues a Concurrence, the developer may proceed with the project. If OCM issues a Conditional Concurrence, the developer may proceed with the project only if it is amended to include the listed conditions. If OCM issues an Objection, the project may not proceed. ODNR Permits & Leases Website
Federal Agency Action
If OCM finds that the project is not consistent with Ohio’s coastal policies and, therefore, objects to the agency’s consistency certification, OCM must notify the federal agency in a formal response and send a copy of the response to the director of the Federal Office of Ocean and Coastal Resource Management (OCRM). The response must include OCM’s rationale for the objection, describe specific points of inconsistency between the proposed activity and enforceable OCMP policies, and describe alternative measures that, if implemented, would make the project consistent with the OCMP. If OCM objects to the consistency determination based on lack of necessary information from the federal agency, the response must describe the type of information needed to determine the consistency of the federal activity and contain an explanation supporting the need for this information. 15 C.F.R. § 930.43.
Activities Requiring a Federal License or Permit
If OCM finds that the project is not consistent with OCMP policies and, therefore, objects to the project’s consistency certification, OCM must notify the developer, the federal agency, and the OCRM of its objection. The objection must include a statement informing the developer of a right of appeal to the Secretary of Commerce, pursuant to the procedures described in 15 C.F.R. § 930 Subpart H, 15 C.F.R. § 930.63, and 15 C.F.R. § 930.64.
Additionally, the objection must describe the following:
- How the project is inconsistent with specific enforceable policies of the OCMP; and
- Alternative measures (if any) which, if adopted by the developer, would permit the proposed activity to be conducted in a manner consistent with the OCMP.
If OCM objects to the certification, the federal agency may not approve the license or permit, unless OCM issues a concurrence or is conclusively presumed to concur, or if on appeal by the applicant, the Secretary of Commerce finds that the project is consistent with the objectives or purposes of the CZMA or is necessary in the interest of national security. 15 C.F.R. § 930.65.
An OCM objection to one or more of the license or permit activities submitted for consolidated review does not prevent the developer from receiving license or permits for activities found to be consistent with the OCMP. 15 C.F.R. § 930.59; Ohio Coastal Management Program Document at 7-9.
Activities Receiving Federal Funding
If OCM finds that the proposed project requesting federal financial assistance is inconsistent with the OCMP, OCM must notify the state agency, the federal agency, and the OCRM Director via a formal objection within 60 days, unless the federal assistance program requires a 30-day review period. 15 C.F.R. § 930.96. OCM’s objection must describe:
- How the proposed project is inconsistent with specific enforceable policies of the OCMP; and
- Alternative measures (if any) that, if adopted by the state agency, would permit the proposed project to be conducted in a manner consistent with the OCMP.
If OCM objects because of insufficient information in the application, the objection must describe the nature of the information requested and the necessity of having such information to determine consistency. The objection must also include a statement informing the state agency of a right to appeal to the Secretary of Commerce pursuant to 15 C.F.R. § 930 Subpart H.
If OCM objects to the project because it is inconsistent with the OCMP, the federal agency may not grant the financial assistance, except as provided in 15 C.F.R. § 930 Subpart H.
13-OH-c.13 – Appeal Decision (If Applicable)
Federal Agency Action
If Ohio objects to a consistency determination, a federal agency can negotiate with the state 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 C.F.R. § 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 U.S.C. § 1456(c)(1)(B).
Activities Requiring a Federal License or Permit or that Receive Federal Funding
If Ohio 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 the state’s objection if the activity is consistent with the objectives of the CZMA or is otherwise necessary in the interest of national security. 15 C.F.R. § 930 Subpart H. Under 15 C.F.R. § 930.121] a federal license or permit activity, or a federal assistance activity, is consistent with the objectives or purposes of the CZMA 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; and
- 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, alternative described in objection letters from ODNR, and alternatives and other information submitted during the appeal. The Secretary must not consider an alternative unless OCM 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 C.F.R. § 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 C.F.R. § 930.128.
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