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. Appendix 2.a.

(Revised May 11, 1998)

1. Introduction

NOAA regulations (15 CFR part 930) describe the obligations of all agencies (e.g., National Marine Fisheries Service, Regional Fishery Management Councils (Councils)) that are required to comply with the Federal consistency provisions of the Coastal Zone Management Act (CZMA). The CZMA and the Magnuson-Stevens Fishery Conservation and Management Act, which establishes policies affecting the conservation and management of the Nation's fishery resources, are fundamentally compatible and should be administered in a manner to give maximum effect to both laws. Councils are encouraged to conduct early informal discussions with the state coastal management agencies at the earliest practicable time in the planning process to identify state coastal management concerns and relevant enforceable policies of the state coastal management programs. Councils are encouraged to include consistency issues in discussions of draft fishery management plans (FMPs) and amendments.

Upon adoption by the Council(s) of the final FMP/amendment (i.e., selection of preferred alternatives, development of sufficient information to determine the impacts of alternatives), the Council or Regional Administrator (RA) must determine whether the proposed action, whether within or outside the coastal zone, is reasonably likely to affect any land or water use or natural resource of the coastal zone of states with coastal approved management programs. A finding that the action will affect coastal uses or resources necessitates a consistency determination; a finding that the action has no effect necessitates a negative determination.

2. Consistency Determination

Once the decision is made that an FMP has effects on any coastal use or resource of a state with an approved program, the Council (or RA) must prepare a written determination that states whether the FMP is consistent to the maximum extent practicable with the program. Although the Council (or RA) may consult with the responsible state program official in preparing this determination, the responsibility for its preparation rests with the Council (or RA).

A consistency determination must contain a brief statement that the FMP will be implemented in a manner consistent to the maximum extent practicable with the enforceable policies of the state program. According to NOAA regulations (15 CFR part 930, subpart C) and the Coastal Zone Act Reauthorization Amendments of 1990 (Pub. L. 101-508), the consistency determination also must include:

  • a detailed description of the activity, . . . , and
  • their coastal zone effects, and comprehensive data and information sufficient to support the Federal agency's consistency statement.
Although the amount of detail necessary to support the determination will vary according to the type or magnitude of coastal effects on the coastal zone, the Council (or RA) may not simply assert that an FMP is "consistent" or "consistent to the maximum extent practicable" with state programs, and omit supporting information. If FMPs are prepared in a manner that sufficiently considers consistency with state coastal management programs and otherwise meets the requirements of NOAA regulations, then a consistency determination for an FMP may provide specific references to sections of the FMP that discuss consistency issues and support the determination, and need not duplicate the same information.

The Councils (or RAs) must maintain a record documenting consistency determinations and state responses to such determinations.

If the consistency determination and supporting documentation are sent to the state coastal management agency prior to the time that the FMP is submitted to the Secretary for review and approval, the consistency review period (45 days for state review plus an automatic 15-day extension if requested by the state; further extension requests are at the discretion of the Federal agency) can run concurrently with the Secretarial review period. It is important to address the consistency issues during the preparation of the FMP and include supporting information because, given the statutory limitation on the Secretarial review, if a state agency objects at this stage there would be little time to develop information and resolve disagreements short of litigation.

NOAA regulations also provide for the use of a general consistency determination in cases where the Federal agency will be performing a repeated activity other than a development project. The use of a general consistency determination can avoid the necessity of issuing separate consistency determinations for each incremental action controlled by the major activity. A general consistency determination may only be used in situations where the incremental actions are repetitive or periodic, substantially similar in nature and do not affect the coastal zone when performed separately. The procedural requirements for a general consistency determination are the same as those for any consistency determination prepared for other direct Federal actions.

3. Negative Determination

In certain cases, NOAA regulations allow for use of a negative consistency determination. A negative determination is appropriately used only in those cases where the FMP/amendment has no effect on any land or water use or natural resource of a state's coastal zone. If the Council (or RA) elects to prepare a negative determination, the Council (or RA) must provide the state coastal management agency with a notification, which briefly explains the basis for the negative determination, at the earliest practicable time, but at least 90 days before final approval of the FMP/amendment, unless both the state coastal management agency and the Council (or RA) agree to an alternative schedule.
4. Secretarial Review

The Council (or RA) must provide, in the final FMP/amendment or in supporting documentation, copies of the consistency determinations and any supporting documentation sent to the state coastal management agencies. If the Council (or RA) has been able to take advantage of early coordination efforts with state coastal management agencies and has received state agreement or disagreement on the consistency determination, copies of state responses must be included in the record of decision on the final FMP/amendment.

If state agency responses are received after initiation of Secretarial review, these responses must be submitted to the RA upon receipt. The Council (or RA) will provide copies of these responses with documentation accompanying the submission of the final rule. Final Secretarial approval may not occur sooner than 90 days from the issuance of the consistency determination to the state coastal management agency, unless the Council (or RA) and the state agency agree to an alternative period.

When all of the applicable states have agreed with the consistency determination, or when agreement is inferred because the state agency has failed to provide a response within the allowed period, the following statement should appear in the Determinations section of the RA's decision memorandum:

The Council (or RA) has provided a copy of the FMP (or amendment) and a consistency determination to the state coastal management agency in every state with a federally-approved coastal management program whose coastal uses or resources are affected by the FMP (or amendment). The States of (identify individual states) have agreed with the consistency determination. The States of (identify individual states) did not respond within the statutory time period and agreement with the consistency determination is inferred (add if appropriate).

If any state with an approved coastal management program disagrees with the Council's (or RA's) determination (assuming all procedural requirements have been met), the state's disagreement with the determination becomes an issue in the RA's decision memorandum. The text must present the positions of the Council (or RA) and the disagreeing state(s), and must provide justification, based on Federal legal authority, for the finding that the FMP (or amendment) is consistent to the maximum extent practicable.


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Regulatory Streamlining - Operational Guidelines