Federal Consistency

Federal agencies are required to follow state coastal management policies when conducting projects or issuing permits that could affect coastal resources. Delaware Coastal Programs manages the Delaware’s Coastal Zone Management Federal Consistency reviews to ensure that state and federal actions in the Coastal Zone are consistent and coordinated.

Herring Point

Looking for the Delaware Coastal Zone Act?

The Delaware Coastal Zone Act, established in 1971, regulates existing heavy industrial activities, as well as new and existing manufacturing activities, in a specified coastal zone within Delaware.

The Federal Consistency program was established by Congress in 1972 as part of the Coastal Zone Management Act. Every coastal or Great Lakes state with a Coastal Management Program implements Federal Consistency within its approved federal coastal zone boundary. Delaware’s federal coastal zone encompasses the entire state.

Federal Consistency requires that projects conducted directly by a Federal agency, projects authorized by a Federal permit and some projects implemented with Federal funds be consistent with Delaware’s Coastal Zone Management policies. Projects are reviewed by Coastal Program staff in close coordination with other agencies. If projects are consistent with state coastal policies, a Federal Consistency concurrence is issued.

Questions and Answers

The entire State of Delaware has been designated as the Coastal Zone Management Area. Any Federal activity occurring within the state may be subject to Federal Consistency review. Note that this is different from the Coastal Zone that is subject to the state-level Delaware Coastal Zone Act.

Regulated Federal activities include the following:

  • Projects and programs conducted by, or on behalf, of a Federal government agency. These are referred to as “Federal Agency Activities.”
  • Projects requiring a Federal license or permit
  • Federal funding to local governments
  • Plans for exploration, development or production of any area leased under the Outer Continental Shelf Lands Act.

Federal agency activities that are reviewed through Federal Consistency include projects such as dredging and beach nourishment projects conducted by the U.S. Army Corps of Engineers, fisheries management plans proposed by the National Marine Fisheries Service (NMFS), airport expansion plans proposed by the Federal Aviation Administration (FAA) and highway plans sponsored by the Federal Highway Administration.

Federal licenses and permits that are reviewed through Federal Consistency include permits issued by the Army Corps of Engineers for impacts to wetlands and navigable waters, permits issued by the Coast Guard for work on bridges and pipelines over navigable waters, licenses and permits issued by the Federal Energy Regulatory Commission for electric transmission lines and interstate natural gas transmission lines and certifications from the federal aviation administration for airport layout plans. (See a list of  Federal Licenses and Permits subject to Federal Consistency.)

The Delaware Coastal Management Program has an approved set of policies (see Federal Consistency Policy Document) that are used to review projects for Federal Consistency. These policies are composed of pre-existing state laws, regulations and executive orders. Because the goals of the Coastal Management Program are to balance the use, preservation and development of coastal resources, these policies cover a wide range of coastal issues.

Applicants for a Federal Consistency Concurrence must submit the following to the Delaware Coastal Management Program:

  • A description of the project
  • An analysis of the project’s likely coastal zone effects and a description of how it will comply with applicable Coastal Zone Management Policies
    The Statement of Consistency: “[Name of Applicant] has determined that the proposed [project] complies with Delaware’s approved coastal management program and will be conducted in a manner consistent with such program.
  • Supporting information sufficient to understand and review the coastal zone effects of the project. This can include copies of federal permit applications, construction plans, environmental assessments or environmental impact statements, monitoring data, modeling data and verification of other permits received.
Persons and organizations proposing Federal activities in Delaware must receive a written “concurrence” from the Delaware Coastal Management Program indicating that the project complies with Delaware’s Coastal Zone Management Policies.  Coastal Management Program staff are responsible for the review, which often includes coordination from other state agencies and subject matter experts.
The Delaware Coastal Management Program has up to six months to review a project, but a review may take more or less time, depending on the complexity of the project or the completeness of the original application.

Public involvement is an important part of the Federal Consistency process. Each application goes on public notice for either 20 or 30 days, depending on the type of project.

During this time, comments regarding the project are accepted by the Coastal Management Program. Any comments received are taken into consideration while reviewing the project. Public notices for new Coastal Management Federal Consistency applications are placed in the classified section of The News Journal and The Delaware State News on Wednesdays and Sundays. Public notices can also be found on the DNREC website.

First, the applicant determines whether their proposed project is consistent with the policies of the Delaware Coastal Management Program and submits application materials to the DCMP.

Upon receipt, the project is assigned to DCMP staff for review. Applicants who have not submitted complete information are notified within 30 days and provided with a list of deficiencies.

If complete, a public notice is placed in local newspapers. Comments received by the public are compiled and taken into consideration when reviewing the application.

DCMP staff review the application and coordinate with other permitting agencies and/or subject matter experts to discuss public policy questions and issues.

When all questions and issues are resolved, DCMP will either concur with or object to the applicant’s federal consistency certification.

Applicants receive, in writing, notices of concurrence with or objection to the federal consistency certification.

The Delaware Coastal Management Program will work with project applicants to change or modify a project so that it can become consistent with our policies. If a project cannot be modified to be consistent with Coastal Zone Management Policies, the Delaware Coastal Management Program will issue an “objection” letter.

Projects that do not comply with Coastal Zone Management policies cannot proceed. If the project in question requires a federal licenses or permit, the federal permit is not valid until the project becomes consistent with Coastal Zone Management policies.

Applicants may appeal (15 CFR 930 Subpart H) decisions to the Secretary of Commerce within 30 days of receipt of DCMP’s ”objection” notification. An applicant may request that the Secretary override the state’s consistency objection if the activity is consistent with the objectives of the Federal Coastal Zone Management Act.