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State
Oregon Regulations
CHAP 660 LAND CONSERVATION AND DEVELOPMENT DEPARTMENT DIVISION 35 FEDERAL CONSISTENCY




The Oregon Administrative Rules contain OARs filed through July 14, 2006

LAND CONSERVATION AND DEVELOPMENT DEPARTMENT

DIVISION 35

FEDERAL CONSISTENCY



660-035-0000

Purpose

This administrative rule establishes state procedures for implementing the federal consistency requirements of the Federal Coastal Zone Management Act of 1972 as amended, Section 307(c).

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88



660-035-0010

Definitions

For the purposes of this division the following definitions shall apply:

(1) "Acknowledged Comprehensive Plan" means a comprehensive plan and land use regulations or plan or regulation amendment which complies with the goals as provided in ORS 197.251, 197.640 to 197.649 and 197.625.

(2) "Applicant" means any individual or organization, except a federal agency, who applies for a federal license or permit or other form of permission which a federal agency is empowered to issue, to conduct an activity affecting land or water uses in the coastal zone.

(3) "Applicant Agency" means a state agency, city, county, special purpose district, or regional body which submits an application for federal financial assistance.

(4) "Assistant Administrator" means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

(5) "Associated Facilities" includes all forms of development:

(a) Which are specifically designed, located, constructed, operated, adapted, or otherwise used, in full or major part, to meet the needs of a federal action or federally permitted action; and

(b) Without which the federal action, as proposed, could not be conducted (15 CFR 930.21).

(6) "Certification of Consistency" means a declaration which is supported by the necessary data and information by an applicant or an OCS applicant that a proposed activity or development complies with the Oregon Coastal Management Program and that such activity shall be conducted in a manner consistent with the program.

(7) "Coastal Zone" means the area lying between the Washington border on the north to the California border on the south, bounded on the west by the extent of the state's jurisdiction as recognized by federal law, and the east by the crest of the coastal mountain range, excepting:

(a) The Umpqua River basin, where the coastal zone extends to Scottsburg;

(b) The Rogue River basin, where the coastal zone extends to Agness; and

(c) The Columbia River basin, where the coastal zone extends to the downstream end of Puget Island.

(8) "CZMA" means the federal Coastal Zone Management Act of 1972, as amended.

(9) "Commission" means the Land Conservation and Development Commission.

(10) "Consistency Determination" means a decision by a federal agency, supported with findings, that a proposed project will be conducted in a manner consistent to the maximum extent practicable with the OCMP unless compliance is prohibited based on existing law applicable to the federal agency.

(11) "Director" means the Director of the Department of Land Conservation and Development.

(12) "Department" means the Department of Land Conservation and Development.

(13) "Excluded federal land" means lands in federal ownership within the boundaries of the Oregon coastal zone. All lands owned, leased, held in trust or whose use is otherwise by law subject solely to the discretion of the federal government are excluded from the definition of coastal zone. The exclusion of federal lands from the definition of coastal zone does not remove the requirement that actions on such lands be consistent with the Oregon Coastal Management Program if such actions directly affect the Oregon coastal zone.

(14) "Federal Activity" means any function performed by or on behalf of a federal agency in the exercise of its statutory responsibilities. The term federal activity does not include the issuance of a federal license or permit to an applicant or OCS applicant or the granting of federal assistance to an applicant agency (15 CFR 930.31).

(15) "Federal Agency" means any department, agency, or other organization within the executive branch of the federal government, or any wholly owned federal government corporation.

(16) "Federal Assistance" means assistance provided under a federal program to an applicant agency through a grant, contract, loan, subsidy, guarantee, insurance or other form of financial aid (15 CFR 930.91).

(17) "Federal Development Project" means a federal activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources (15 CFR 930.31).

(18) "IRD" means the Oregon Intergovernmental Relations Division in the Executive Department. IRD operates the State Clearinghouse process which provides for the evaluation, review and coordination of federally assisted programs.

(19) "OCMP" means the Oregon Coastal Management Program which was approved by OCRM in 1977 and all federally approved amendments thereto.

(20) "OCRM" means the federal Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.

(21) "OCS Plan" means any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act, and the regulations under that Act, and which describes in detail activities requiring federal licenses or permits (15 CFR 930.73).

(22) "OCS Applicant" means any individual, organization, or government entity who submits to the Secretary of the Interior an OCS plan which describes in detail federal license or permit activities.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88



660-035-0020

Federal Consistency in the OCMP

(1) Designation of the Department of Land Conservation and Development as Lead Agency for Coastal Zone Management. The Department is the designated coastal zone management agency in Oregon pursuant to Section 306(c)(5) of the CZMA and ORS 196.435. All consistency determinations, consistency certifications and proposals for federal assistance shall be sent to and reviewed by the Department for consistency with the approved Oregon Coastal Management Program (OCMP).

(2) Federal Actions Reviewed. The Department is responsible for review of the following actions subject to federal consistency requirements.

(a) Federal agency activities directly affecting the coastal zone;

(b) Federal development projects within the coastal zone;

(c) Federal licenses or permits for activities affecting the coastal zone;

(d) Outer continental shelf exploration, development and production activities affecting the coastal zone; and

(e) Applicant agency requests for federal financial assistance for activities affecting the coastal zone.

(3) Review Standard. The OCMP is the review standard for all activities subject to federal consistency requirements.

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88



660-035-0030

Federal Agency Activities Directly Affecting the Coastal Zone and Federal Development Projects

(1) Federal Requirements. Pursuant to Section 307(c)(1) and (2) of the CZMA and 15 CFR 930.30 et seq., all federally conducted or supported activities, including development projects, which directly affect the coastal zone must be undertaken in a manner consistent to the maximum extent practicable with the OCMP.

(2) Activities Subject to Consistency Review. Federal agencies shall determine which of their activities either in or outside of the coastal zone directly affect the Oregon coastal zone. Federal agencies shall consider all development projects within the Oregon coastal zone to be activities directly affecting the coastal zone. (See the OCMP for further guidance.)

(3) Federal Activities Where Consistency Determinations are Not Required. When either of the following situations exists, a consistency determination is not required:

(a) The activity is the same or substantially similar to a past activity for which the Department agreed with a consistency determination; or

(b) A thorough consistency assessment has established that there would be no direct effects upon the coastal zone. In either case, the federal agency shall submit a statement to the Department saying that no consistency determination is needed at least 90 days before final approval of the activity. The statement shall include adequate information to support the agency's conclusion including findings on the effects of the activity on the coastal zone. If the Department disagrees with the federal agency's conclusion that a consistency determination is not required for a federal activity, either party may request mediation by the Secretary of Commerce as provided by the CZMA and as described in 15 CFR 930 Subpart G and in OAR 660-035-0040(10).

(4) Notification by Federal Agency. When a federal agency proposes to undertake a federal activity likely to directly affect the coastal zone, including a development project, it shall notify the Department of the proposal in writing. Notification may be provided through the Clearinghouse Review process at IRD, Division of State Lands Waterway Project Permit Review process, National Environmental Policy Act environmental impact statements, or other method. The Department must be notified as early as possible in the planning or reassessment of the action. At a minimum, notification must be provided to the Department at least 90 days before final approval of the federal action, unless both the federal agency and the Department agree on a different schedule.

(5) Preliminary Consultation. It is recommended that federal agencies consult with the Department, affected local governments, and other agencies listed in the OCMP when assessing whether a federal activity will be consistent with the OCMP.

(a) Coastal cities and counties shall provide the federal agency with applicable comprehensive plan standards upon request.

(b) Federal agencies are not required to obtain state or local permits, unless specified in federal statute. Nonetheless, obtaining relevant state and local permits is recommended before making a consistency determination to reduce the time necessary for the Department to conduct its review.

(6) Content of Consistency Determination. A consistency determination shall include a brief statement indicating whether the project is consistent to the maximum extent practicable, plus:

(a) A detailed description of the proposed activity, and all associated facilities and services, and the effects of both the activity and associated facilities and services on the coastal zone;

(b)Environmental assessments, or environmental impact statements if applicable;

(c) A statement indicating how the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the OCMP; and

(d) A justification of the agency's determination of consistency, in light of all relevant provisions of the OCMP.

(7) Activities Where Federal Consistency is Prohibited By Law. Federal activities directly affecting the coastal zone shall be consistent with the OCMP to the maximum extent practicable unless federal law prohibits such compliance. If a federal agency asserts that compliance with the OCMP is prohibited, it shall clearly describe in its consistency determination the legal authority which it believes limits the federal agency's ability to be fully consistent with the provisions of the OCMP.

(8) General Consistency Determinations. In cases where federal agencies will be performing repeated activities, other than development projects, which cumulatively have direct effects on the coastal zone, the federal agency may develop a general consistency determination. A general consistency determination may be used only in situations where the activities are repetitive or periodic, substantially similar, and do not significantly affect the coastal zone when performed separately. If a federal agency issues a general consistency determination, it shall thereafter periodically consult with the Department concerning the manner in which the incremental actions are being undertaken. Such consultation process shall be established in the general consistency determination.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88



660-035-0040

DLCD Review of Federal Activities and Development Projects

(1) Review Schedule. Each consistency determination shall be reviewed by the Department. The Department shall promptly notify the federal agency and affected local government in writing of the Department's agreement or disagreement. If the Department's agreement or disagreement has not been issued within 45 days of receipt of the federal agency's notification, the federal agency may presume the Department agrees, unless the Department, within the 45-day period, has requested an extension of time for review. Federal agencies shall approve one request for an extension of up to 15 days. Approval of longer or additional requests is at the federal agency's discretion.

(2) Time of Review for Federal Activities Which Require EIS's. The Department shall review federal activities which require a National Environmental Policy Act (NEPA) environmental impact statement for consistency with the OCMP at the time of the final environmental impact statement (FEIS), unless an alternative schedule is agreed to by the Department and the federal agency. This shall not preclude the Department from coordinating with the federal agency prior to the FEIS submittal.

(3) Monitoring of Federal Activities. The Department shall monitor federal activities by use of the Clearinghouse Review process, review of National Environmental Policy Act environmental impact statements, and other available sources, including comments from interested persons, and shall notify federal agencies of federal activities which have not been subject to a consistency review but which, in the opinion of the Department, directly affect the coastal zone and require a federal agency consistency determination.

(4) Voluntary Withdrawal. If the Department determines that the federal agency's consistency determination does not contain the necessary information described in OAR 660-035-0030(6), it may request the federal agency to withdraw its consistency determination in order to avoid a disagreement based on a finding that the federal agency failed to supply sufficient information.

(5) Public Notice. The Department will rely on federal notification procedures to provide public notice of federal consistency determinations to interested persons other than the Department. The Department may request the federal agency to undertake additional public notice as part of the consistency review process.

(6) Review by Local Government and State Agencies. The Department shall consult with relevant state and local agencies in making its decision whether a proposed federal activity is consistent with the OCMP. The Department shall circulate federal consistency determinations and supporting documentation to affected local governments and state agencies within a reasonable time of receipt of such determinations at the Department's Salem office. Affected local governments and state agencies shall provide their comments to the Department within 21 working days of receiving the consistency determination. If no comments are received within the 21-day period, the Department will presume that the local and state agencies concur with the federal agency's consistency determination.

(7) Review of Comments. The Department shall review the consider relevant written comments and objections from local governments, state agencies, and other interested persons in carrying out its consistency review. Local governments, state agencies, or interested persons may appeal the Department's decision to the Commission pursuant to section (11) of this rule.

(8) Notice of Disagreement. In the event the Department disagrees with the federal agency's consistency determination, the Department shall provide the federal agency with its reasons in writing. The Department's response shall describe how the proposed activity is inconsistent with the OCMP, and shall describe any alternative measures which would allow the activity to proceed in a manner consistent to the maximum extent practicable with the OCMP. If the Department's disagreement is based on a finding that the federal agency has failed to supply sufficient information, the Department's response shall describe the information needed. The Department shall send a copy of any such notice of disagreement with a federal agency's consistency determination to the Assistant Administrator and affected state and local government.

(9) Monitoring of Approved Activities. The Department shall monitor approved federal activities to ensure that the activities continue to be undertaken in a manner consistent to the maximum extent practicable with the OCMP. A schedule for monitoring may be established through the Department's agreement statement for the original activity. Interested members of the public also may identify compliance problems with ongoing federal activities to the Department. The Department will evaluate all comments to determine if the activity is being conducted in a manner consistent with the original approval. When the Department determines that a previously authorized activity is not being conducted in conformance with the original approval it may request that the federal agency take appropriate remedial action. If a serious disagreement persists, the Department or the federal agency may request the Secretary's mediation services described in section (10) of this rule.

(10) Secretary of Commerce's Mediation. When a disagreement between the Department and a federal agency regarding a consistency issue occurs, the Department shall first attempt to resolve the conflict through information discussions. The federal agency, the Department, or the Governor may request mediation by the Secretary of Commerce pursuant to 15 CFR 930.110. If mediation efforts are unsuccessful or are not utilized, the Department may seek judicial review. Nothing in this section shall preclude the Department from seeking judicial review while utilizing mediation or in lieu of mediation.

(11) Appeal of Department Determination: Commission Review. Any party, as defined in ORS 183.310(6), who objects to the Department's agreement or disagreement with a federal agency's consistency determination may petition to have the action reviewed by the Commission. The petition shall include the information required in 660-035-0080(2). This does not preclude the federal agency involved from directly seeking mediation of a disagreement with the Department under 15 CFR 930.110.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88

660-035-0050

Activities Requiring a Federal License or Permit

(1) Federal Requirements. Pursuant to Section 307(c)(3)(A) of the CZMA and 15 CFR 930.50 et seq., all federally licensed or permitted activities affecting the coastal zone shall be conducted in a manner consistent with the OCMP.

(2) Listed Permits. The OCMP lists certain federal license and permit activities which affect the coastal zone and which the Department shall review for consistency with the OCMP. (See Appendix A.)

(3) Unlisted Licenses and Permits. The Department shall monitor proposed federal licenses and permits which are not listed in the OCMP, through the Clearinghouse Review procedures, NEPA environmental impact statements, and other available sources including comments from interested persons. When the Department determines that a proposed license or permit which is not listed would affect the coastal zone, it shall so notify the affected federal agency, applicants, and the Assistant Administrator and request the Assistant Administrator's permission to review the license or permit. The Department shall notify the federal agency and applicant within 30 days of receiving notice of the unlisted license or permit application. In cases where the Department does not receive notice of the federal license or permit activity, this time limit shall not apply. Upon approval by OCRM of a Department request to review an unlisted license or permit activity, the federal agency and applicant shall comply with the consistency certification procedures of this rule.

(4) Consistency Certifications. When an applicant believes that the proposed activity is consistent with the provisions of the OCMP, the applicant shall provide a statement of consistency in its permit or license application to the federal agency. The statement shall be in the following form: "The proposed activity complies with the Oregon Coastal Management Program and will be conducted in a manner consistent with such program". A copy of the statement shall also be provided to the Department along with supporting information.

(5) Supporting Information. Supporting information shall include a detailed description of the proposal, a brief assessment of likely effects on the coastal zone, and findings indicating that the proposed activity, its associated facilities, and their combined effects are all consistent with the provisions of the OCMP. Any draft and final environmental impact statements and supplements shall also be included in the supporting information. The applicant may use the information it has provided for local, state and/or federal permits if such information also meets the requirements of this section.

(6) Request for Additional Information. The Department may request additional information from the applicant. The information request shall be in writing. Failure to submit the requested information may result in an objection to the applicant's consistency certification. The applicant shall comply with such request within ten days of receipt of such request or shall explain in writing within ten days why the request cannot be complied with.

(7) Department Review. The Department shall begin its review when it receives from the applicant a complete consistency certification and all necessary supporting information identified in section (5) of this rule. The Department shall review the application and determine:

(a) Whether the supporting information is adequate to assess coastal effects; and if so,

(b) Whether the activity is consistent with the OCMP. Following receipt of the application, the Department shall provide public notice of the proposed activity as provided in section (8) of this rule. Certifications for federally licensed or permitted activities which require environmental impact statements shall not be considered complete until the final environmental impact statement (FEIS) is submitted unless an alternative arrangement is agreed to by the Department, the applicant, and the federal agency. This shall not preclude the Department from coordinating with the applicant and federal agency prior to FEIS submittal.

(8) Public Notice. Public notice shall include a summary of the proposal, an announcement that public information submitted by the applicant is available for inspection, and a statement that comments may be submitted. Whenever possible, the Department shall jointly issue public notice with the federal license- or permit-issuing agency or with the state permit-issuing agency if a state permit is required.

(9) Review of Comments. The Department shall review and consider relevant written comments and objections from local governments, state agencies, and other interested persons in carrying out its consistency review. Local governments, state agencies, or interested persons may petition to have the Director's decision reviewed by the Commission pursuant to OAR 660-035-0080.

(10) Review Schedule. The Department shall promptly notify the applicant, affected local government, and federal agency of its objection to or concurrence with the applicant's certification. If the Department fails to object or concur within 180 days following commencement of Department review, the Department's concurrence shall be presumed. If the Department has not issued a decision within three months, it shall notify the applicant and the federal agency of the status of the review and the basis for further delay.

(11) Effect of Department Concurrence. If the Department concurs or is conclusively presumed to concur with the applicant's consistency certification, the federal agency may approve the federal license or permit application.

(12) Notice of Objection. If the Department objects to the applicant's consistency certification, it shall so notify the applicant, federal agency, affected state and local government, and Assistant Administrator. The Department shall describe how the proposed activity is inconsistent with the OCMP, as well as any alternative measures which, if adopted by the applicant, would permit the proposed activity to be conducted in a manner consistent with the OCMP. If the Department objects on the grounds of insufficient information, it shall describe the nature of the information requested and the necessity of having such information. The Department's objection shall include a statement informing the applicant of a right of appeal to the Secretary of Commerce as described in 15 CFR 930.120 et seq.

(13) Effect of Department Objection. Following receipt of a Department objection to a consistency certification, the federal permitting agency shall not issue the license or permit unless the Secretary of Commerce approves the activity on appeal.

[ED. NOTE: The exhibit(s) referenced in this rule are not printed in the OAR Compilation. Copies may be obtained from the agency.]

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88

660-035-0060

Outer Continental Shelf (OCS) Activities

(1) Federal Requirements. Pursuant to Section 307(C)(3)(b) of the CZMA and 15 CFR 930.70 et seq., all federal license and permit activities described in OCS plans and which affect the coastal zone shall be conducted in a manner consistent with the OCMP. No federal license or permit activity described in an OCS plan may be approved by a federal agency until the requirements set forth in this rule are satisfied.

(2) Permits Not Included in OCS Plans. The OCS applicant and the Department shall comply with OAR 660-35-050 in processing permit activities which have not been included with OCS plans.

(3) Consistency Certifications. Any applicant submitting to the U.S. Department of Interior (DOI) a plan for the OCS offshore Oregon shall provide DOI with a consistency certification attached to the OCS plan. DOI shall provide the Department with a copy of the OCS plan and the consistency certification. The certification shall be in the following form: "The proposed activities described in detail in this plan comply with the Oregon Coastal Management Program and will be conducted in a manner consistent with such program." The certification shall be accompanied by the supporting information described in section (4) of this rule.

(4) Supporting Information. Supporting information to accompany the certification shall include:

(a) All comprehensive offshore, nearshore, and onshore data and material required by DOI's operating regulations governing exploration, development and production operations on the OCS (see 30 CFR Section 250.34) and regulations pertaining to the DOI OCS information program (see 30 CFR Part 252);

(b) An assessment of probable coastal zone effects, and an analysis of how the proposed activities, their associated facilities, and their combined effects will be consistent with the OCMP; and

(c) Draft and final environmental assessments, and draft and final impact statements and any supplements when the federal agency determines that an EIS is required.

(5) Department review. The Department's review shall commence when the Department receives the applicant's consistency certification and all supporting information specified in OAR 660-035-0060(4). The Department shall review the application and determine:

(a) Whether the supporting information is adequate to assess coastal effects; and if so;

(b) Whether the activity is consistent with the OCMP. Additional information may be requested by the Department pursuant to OAR 660-035-0050(6). After receiving this material, the Department shall provide public notice of the proposed activity as provided in OAR 660-035-0050(8). The Department will review comments pursuant to OAR 660-035-0050(9). Consistency certifications for OCS activities which require an environmental impact statement shall not be considered complete until the final environmental impact statement (FEIS) is submitted unless an alternative arrangement is agreed to by the Department, the applicant and DOI.

(6) Review Schedule. The Department shall promptly notify the OCS applicant, the Secretary of the Interior, affected local government and the Assistant Administrator of its objection to or concurrence with the OCS applicant's certification. If the Department fails to object or concur within 180 days following commencement of Department review, the Department's concurrence shall be presumed. If the Department has not issued a decision within three months, it shall notify, in writing, the Department of the Interior, the applicant, and the Assistant Administrator of the status of the review and the basis for further delay.

(7) Effect of Department Concurrence. If the Department concurs or is conclusively presumed to concur with the OCS applicant's consistency certification, the OCS applicant shall not be required to submit additional consistency certifications and supporting information for Department review when the federal licenses and permits are actually applied for. The OCS applicant shall, however, supply the Department with copies of permit applications to allow the Department to monitor the approved OCS activities. Further, if regulatory actions by any other agency result in modification of the OCS plan, renewed consistency review of the modified plan shall be required.

(8) Notice of Objection. If the Department objects to the OCS applicant's consistency certification, it shall notify the OCS applicant, federal agency, affected state and local government, and Assistance Administrator of its objection. The Department's objection shall include a description of how the proposed activity is inconsistent with the OCMP. Such an objection shall also specify any alternatives which, if adopted by the OCS applicant, would enable the proposed activity to be conducted in a manner consistent with the OCMP. If an objection is based, in whole or in part, upon failure to provide information requested by the Department, the information requested shall be described. A Department objection shall include a statement informing the OCS applicant of the right of appeal to the Secretary of Commerce on the grounds described in 15 CFR 930.120 et seq.

(9) Effects of Department Objection. If a federal agency receives a Department objection to a consistency certification related to one or more of the federal license or permit activities described in an OCS plan, the agency shall not issue any of the licenses or permits unless the Secretary of Commerce approves the activity on appeal.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88

660-035-0070

Federal Financial Assistance to Applicant Agencies

(1) Federal Requirements. Pursuant to Section 307(d) of the CZMA and 15 CFR 930.90 et seq., federal assistance to applicant agencies for activities affecting the Oregon coastal zone shall be granted only when the activities are consistent with the OCMP.

(2) Notification by Applicant. An applicant agency shall notify the Intergovernmental Relations Division (IRD) Clearinghouse in writing of its intent to apply for federal assistance for an activity affecting the coastal zone.

(3) Clearinghouse Notification. The Clearinghouse shall give the Department an opportunity to review any notification for an activity affecting the coastal zone to determine whether the activity is consistent with the OCMP.

(4) Review Schedule. IRD shall provide a 45-day period for review of applications except those which are specifically limited by federal regulation to a 30-day review cycle. The review period begins at the time the Department receives the application. A 15-day extension may be requested by the Department, state and local agencies, and other reviewers.

(5) IRD Conflict Resolution. If any comments are received by IRD stating that a federal grant in or affecting Oregon's coastal zone is inconsistent with the OCMP, IRD will convene a conflict resolution meeting with interested reviewers and the Department for the purpose of modifying the proposal to remove any inconsistencies. If the conflict cannot be resolved to the satisfaction of all reviewers, the Department shall review all comments and make the consistency determination on behalf of the state.

(6) Effect of Department Approval. If the Department does not object to the proposed activity, the federal agency may grant the federal assistance to the applicant agency. Notwithstanding the Department's consistency approval for the proposed project, the federal agency may deny assistance to the applicant agency based on its own statutory requirements. The Department's approval of an assistance grant shall not preclude future Department consistency review if federal permits are required.

(7) Notice of Objection. If, during the Clearinghouse process, the Department objects to the proposed assistance application, it shall notify the applicant agency, affected local government, the federal agency, and the Assistant Administrator of the objection. The Department's objections shall describe how the proposed project is inconsistent with the OCMP and any alternative measures which, if adopted by the applicant agency, would permit the proposed project to be conducted in a manner consistent with the OCMP. If the Department objects on the grounds of insufficient information, it shall describe the nature of the information requested and the necessity of having such information. The Department's objection shall include a statement informing the applicant of its right of appeal to the Secretary of Commerce on the grounds described in 15 CFR 930.120 et seq.

(8) Effect of an Objection on Federal Agency. Following receipt of a Department objection to a consistency certification, the federal agency shall not grant the federal assistance unless the Secretary of Commerce approves the federal assistance activity on appeal.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88

660-035-0080

Commission Review

(1) Actions Reviewed. There are two methods by which the Commission may review actions under this division:

(a) Any action of the Director pursuant to this division shall be reviewed by the Commission upon petition filed by any "party" as defined in ORS 183.310(6) or upon the Commission's initiative.

(b) The Director may refer to the Commission any action taken under this division. The Commission shall act in accordance with the provisions of section (3) of this rule on matters referred to the Commission;

(c) Review by the Commission does not preclude the federal agency involved from directly seeking mediation of a disagreement with the Department under 15 CFR 930.110.

(2) Content of Petition. Any petition filed pursuant to this division shall:

(a) Contain the name, address, and telephone number of the petitioner and, if the petitioner is other than the governmental body directly affected by the action, a brief statement of the petitioner's interest in the outcome of the action sought to be reviewed or of the public interest represented by the petitioner;

(b) Specify the action of the Director to be reviewed, when that action was taken, the Commission action sought by the petitioner, and the reason why the Commission should so act in this matter;

(c) Be filed with the Director or the Director's designee within 15 days of the date of the taking of the action sought to be reviewed.

(3) Commission Response to Petition. The Commission shall, by order, either affirm, reverse, or modify the action of the Director. Such order shall be issued within 60 days of the filing of the request, or within 120 days if good cause for the longer time is shown. The Director shall provide to all parties reasonable notice of the date, time, and place that the Commission will take action on the petition, and the manner in which such parties may express their views.

(4) Report to the Commission. The Department shall provide the Commission with a monthly report summarizing Department actions taken during the preceding month pursuant to this division and any written public comments received by the Department which pertain to those actions.

[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the Land Conservation and Development Administration.]

Stat. Auth.: ORS 183 & ORS 197
Stats. Implemented: ORS 196.435 & ORS 197.040
Hist.: LCDC 7-1988, f. & cert. ef. 9-29-88


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