Since colonial times Americans have depended on the coastal areas for commerce, transportation, food supply, recreation and scenic beauty. By the late 1960s, more than half the nation's population was located near the coasts. User groups competed for access to the nation's coastal resources and conflicts increased dramatically. Recreational fishermen competed with commercial fishermen. Resorts and residential developments limited the access previously enjoyed by local residents. Declining coastal water quality led to closings of shellfish beds and swimming beaches. Commercial and recreational fisheries declined.
In 1972, Congress addressed the increasing conflict by enacting the Coastal Zone Management Act (CZMA). The CZMA sought to preserve, protect, develop and, where possible, to restore and enhance the resources of the nation's coastal zone. It encouraged coastal states to develop and implement comprehensive management programs that would balance the need for coastal resource protection with the need for economic growth and development in the coastal zone. If the management program developed by the coastal state is approved by the U.S. Department of Commerce National Oceanic and Atmospheric Administration's (NOAA), the state is authorized to review certain federal activities affecting the land or water uses or natural resources of its coastal zone for consistency with its program. This authority is referred to as “federal consistency” and allows states to review:
Activities conducted by or on behalf of a federal government agency;
Federal licenses or permits;
Permits issued under the Outer Continental Shelf Lands Act for offshore minerals exploration or development; and
Federally funded activities.
The CZMA requires federal agency activities (i.e., “direct” agency activities) to be fully consistent with a state’s approved coastal management program unless full consistency is prohibited by federal law. Federal permit and funding decisions (i.e., “indirect” activities) must be fully consistent with the state’s approved coastal management program. Federal agencies comply with these requirements by providing the state with a statement of consistency and the necessary data and information to support the assertion prior to taking a final action on a proposed activity. The information provided to the state in support of the consistency statement must include all information reasonably necessary for the state to determine the project's consistency with its program. The state must concur or object to the consistency of the federal activity according to procedures and timelines in the federal regulations at 15 CFR 930.
Disagreements between a state and a federal agency on the consistency of a “direct” federal activity can be mediated by the Secretary of the U.S. Department of Commerce. If a state determines that a proposed federal permitting or funding activity is inconsistent with the authorities included in the state's approved program, the federal agency is prohibited from granting the permit or funds. In such a case, however, the applicant for the permit or funds may request that the Secretary of the U.S. Department of Commerce override the state’s decision on the grounds that, despite being inconsistent with the FCMP, the proposed action is consistent with the purposes of the Coastal Zone Management Act or is otherwise necessary in the interest of national security.
FEDERAL CONSISTENCY IN FLORIDA
The Florida Coastal Management Program (FCMP) was approved by NOAA in 1981 and is codified at Chapter 380, Part II, F.S. The state of Florida's coastal zone includes the area encompassed by the state's 67 counties and its territorial seas. The FCMP consists of a network of 24 Florida statutes administered by nine state agencies and five water management districts. This framework allows the state to make integrated, balanced decisions that ensure the wise use and protection of the state's water, property, cultural, historic and biological resources; protect public health; minimize the state's vulnerability to coastal hazards; ensure orderly, managed growth; protect the state's transportation system; and sustain a vital economy.
Federal consistency reviews are integrated into other review processes conducted by the state depending on the type of federal action being proposed. The Florida State Clearinghouse, administered by the DEP Office of Intergovernmental Programs, is the primary contact for receipt of consistency evaluations from federal agencies. The Florida State Clearinghouse coordinates the state’s review of proposed federal activities, requests for federal funds, and applications for federal permits other than permits issued under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. Consistency reviews of federal permits issued under those acts are conducted in conjunction with wetland resource and environmental resource permits issued by the Department of Environmental Protection or the water management districts. The Offshore Projects Unit, also in the Office of Intergovernmental Programs, coordinates consistency reviews of federal activities proposed in offshore waters.
Regardless of the process used, the review of federal activities is coordinated with the appropriate FCMP member agencies. Each agency is given an opportunity to provide comments on the merits of the proposed action, address concerns, make recommendations and state whether the project is consistent with its statutory authorities in the FCMP. Regional planning councils and local governments also may participate in the federal consistency review process by advising the Department of Economic Opportunity (DEO) on the local and regional impact of proposed federal actions. Comments provided by regional planning councils and local governments are considered by the DEO in determining whether the proposed federal activity is consistent with specific sections of Chapter 163, Part II, F.S., that are included in the FCMP. If a state agency determines that a proposed federal activity is inconsistent, the agency must explain the reason for the objection, identify the statutes the activity conflicts with and identify any alternatives that would make the project consistent.
As the designated lead coastal agency for the state, DEP communicates the agencies’ comments and the state’s final consistency decision to federal agencies and applicants for all actions other than permits issued under Clean Water Act Section 404 and Section 10 of the Rivers and Harbors Act. The state’s consistency decisions on those permits are made through the approval or denial of the wetland resource or environmental resource permits issued under Chapter 373, Part IV, F.S.
To keep the approved FCMP current, the state must periodically update the statutes that comprise the program after legislative amendments have occurred. The changes are submitted to NOAA's Office for Coastal Management for approval, as required by 15 CFR 923.84. The FCMP normally submits the changes on an annual basis, but can submit them on an as-needed basis if necessary.
The Florida Department of Environmental Protection is the state’s lead agency for environmental management and stewardship – protecting our air, water and land. The vision of the Florida Department of Environmental Protection is to create strong community partnerships, safeguard Florida’s natural resources and enhance its ecosystems.