301 C.M.R. 20.04 – Consistency Review of Federal Actions with Coastal Effects

(1) Jurisdiction. The Coastal Zone Management Act (16 U.S.C. 1451 et seq.) requires all Federal Actions with reasonably foreseeable effects on any land or water uses or natural resources of a state's coastal zone to be consistent with the enforceable policies of the approved Coastal Zone Management Program for that state. In accordance with applicable provisions of the Federal Consistency Regulations, 15 CFR 930, Subparts A through I, the CZM Office may review such Federal Actions with coastal effects for consistency with the Enforceable Policies, if such actions occur in the Coastal Zone, in Massachusetts coastal watersheds, in lands or waters of adjacent states, or in federal lands or waters. Except as may otherwise be provided in the Federal Consistency Regulations, the CZM Office may carry out such review without further approval from OCRM or other federal agency if the Federal Action has been specifically identified and listed in the CZM Policy Guide as having Coastal Effects.
(2) Conduct of Consistency Reviews. The CZM Office will review Federal Actions subject to the requirement of consistency with Enforceable Policies. Where appropriate, to avoid additional review of actions with negligible environmental impact, informed in part by established environmental review thresholds, such as those under MEPA, the CZM Office will cooperate with federal regulatory agencies to incorporate consistency review into the joint inter-agency review of general permits, provided that the coastal effects of projects (including cumulative effects) eligible for such permits are satisfactorily addressed in conditions stipulated by the federal agency for purposes of a general concurrence. Where individual reviews for consistency are carried out, the CZM Office shall act in accordance with all applicable provisions of the Federal Consistency Regulations, 15 CFR 930, Subparts A through I, and in conjunction with the following supplemental provisions:
1. (a) The CZM Office shall provide an opportunity for public participation in any federal consistency review it conducts, which will include CZM's notice to the public of commencement of review and opportunity for public comment as provided electronically in the Environmental Monitor and, as defined in the CZM Policy Guide, in appropriate local newspapers. CZM, at its discretion, may hold a public hearing. If a public hearing is conducted in the locality or region likely to be affected by the Federal Action in question, the notice(s) shall announce the time(s) and place(s) that such hearing(s) will be held.
2. (b) In accordance with St. 1989, c. 716, CZM shall refer all consistency certifications it receives for proposed activities in Barnstable County to the Cape Cod Commission. Such referral will consist of the consistency certification submitted to CZM and the public notice for publication in the Environmental Monitor. The referral will be sent to the Cape Cod Commission's Executive Director via electronic mail with delivery confirmation before the commencement of the public comment period. Within the comment period stipulated in the public notice, the Cape Cod Commission will notify CZM in writing of any objections it may have to a consistency certification where the Commission finds inconsistencies between the proposed activities and the Cape Cod Commission's Regional Policy Plan and local comprehensive plans certified by said Commission. CZM shall take into account elements of those objections by the Commission that are directly related to the Enforceable Policies. Any conflict between CZM and the Commission shall be referred to and resolved by the EEA Secretary.
3. (c) Pursuant to applicable provisions of the Federal Consistency Regulations, 15 CFR 930, Subparts A through I, necessary data and information to be submitted with a consistency certification shall include all of the applicable data and information necessary for the commencement of federal consistency required by 15 CFR 930.58 and as specifically described in the CZM Policy Guide has been received by CZM.
4. (d) Pursuant to applicable provisions of the Federal Consistency Regulations, 15 CFR 930, Subparts A through I, the CZM Office may object to the consistency certification if any application for a specified state or local permit is denied, or if the applicant has failed to provide copies of final decisions on all applications identified as necessary data and information pursuant to 301 CMR 20.04(2)(d). CZM may stipulate conditions as may be necessary to achieve consistency with Enforceable Policies pursuant to provisions of the Federal Consistency Regulations. In the event an applicable plan, project proposal, or application is not modified accordingly, such conditional concurrence shall be treated as an objection to the Federal Action in question.