The Florida Senate

380.23  Federal consistency.--

(1)  When an activity requires a permit or license subject to federal consistency review, the issuance or renewal of a state license shall automatically constitute the state's concurrence that the licensed activity or use, as licensed, is consistent with the federally approved program. When an activity requires a permit or license subject to federal consistency review, the denial of a state license shall automatically constitute the state's finding that the proposed activity or use is not consistent with the state's federally approved program, unless the United States Secretary of Commerce determines that such activity or use is in the national interest as provided in the federal Coastal Zone Management Act of 1972.

(2)(a)  Where federal licenses, permits, activities, and projects listed in subsection (3) are subject to federal consistency review and are seaward of the jurisdiction of the state, or there is no state agency with sole jurisdiction, the department shall be responsible for the consistency review and determination; however, the department shall not make a determination that the license, permit, activity, or project is consistent if any other state agency with significant analogous responsibility makes a determination of inconsistency. All decisions and determinations under this subsection shall be appealable to the Governor and Cabinet.

(b)  However, effective October 1, 1992, if a finding or recommendation of inconsistency has been made by a state agency with regard to federal activities and projects listed under paragraphs (3)(a) and (b) and the inconsistency cannot be resolved by the department, the department shall refer such finding or recommendation to the Governor for final determination. The Governor shall review the comments, findings, or recommendations of all participating agencies and shall affirm the finding or recommendation of inconsistency unless the Governor determines that the federal activity or project is consistent with the enforceable social, economic, and environmental policies of the coastal management program. Any permitting, licensing, or proprietary authority of an agency shall not be preempted or otherwise limited by any provision of this paragraph. Consistency determinations made pursuant to this paragraph shall not be appealable to the Governor or Cabinet.

(3)  Consistency review shall be limited to review of the following activities, uses, and projects to ensure that such activities and uses are conducted in accordance with the state's coastal management program:

(a)  Federal development projects and activities of federal agencies which significantly affect coastal waters and the adjacent shorelands of the state.

(b)  Federal assistance projects which significantly affect coastal waters and the adjacent shorelands of the state and which are reviewed as part of the review process developed pursuant to OMB Circular A-95.

(c)  Federally licensed or permitted activities affecting land or water uses when such activities are in or seaward of the jurisdiction of local governments required to develop a coastal zone protection element as provided in s. 380.24 and when such activities involve:

1.  Permits required under ss. 10 and 11 of the Rivers and Harbors Act of 1899, as amended.

2.  Permits required under s. 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended.

3.  Permits required under ss. 201, 402, 403, 404, and 405 of the Federal Water Pollution Control Act of 1972, as amended, unless such permitting activities pursuant to such sections have been delegated to the state pursuant to said act.

4.  Permits required under the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 33 U.S.C. ss. 1401, 1402, 1411-1421, and 1441-1444.

5.  Permits for the construction of bridges and causeways in navigable waters required pursuant to 33 U.S.C. s. 401, as amended.

6.  Permits relating to the transportation of hazardous substance materials or transportation and dumping which are issued pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801-1812, as amended, or 33 U.S.C. s. 419, as amended.

7.  Permits and licenses required under ¹43 U.S.C. s. 717 for construction and operation of interstate gas pipelines and storage facilities.

8.  Permits required under 15 U.S.C. s. 717, as amended, for construction and operation of facilities needed to import and export natural gas.

9.  Permits and licenses required for the siting and construction of any new electrical power plants as defined in s. 403.503(12), as amended.

10.  Permits and licenses required for drilling and mining on public lands.

11.  Permits for areas leased under the OCS Lands Act, as amended, including leases and approvals under 43 U.S.C. s. 1331, as amended, of exploration, development, and production plans.

12.  Permits for pipeline rights-of-way for oil and gas transmissions.

13.  Permits and licenses required for deepwater ports under 33 U.S.C. s. 1503, as amended.

14.  Permits required for the taking of marine mammals under the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1374 s. 104.

(d)  Federal activities within the territorial limits of neighboring states when the Governor and the department determine that significant individual or cumulative impact to the land or water resources of the state would result from the activities.

(4)  The department shall by rule adopt procedures for the expeditious handling of emergency repairs to existing facilities for which consistency review is required pursuant to subsections (1), (2), and (3).

(5)  In any coastal management program submitted to the appropriate federal agency for its approval pursuant to this act, the department shall specifically waive its right to determine the consistency with the coastal management program of all federally licensed or permitted activities not specifically listed in subsection (3).

(6)  Agencies shall not review for federal consistency purposes an application for a federally licensed or permitted activity if the activity is vested, exempted, or excepted under its own regulatory authority.

(7)  The department shall review the items listed in subsection (3) to determine if in certain circumstances such items would constitute minor permit activities. If the department determines that the list contains minor permit activities, it may by rule establish a program of general concurrence pursuant to federal regulation which shall allow similar minor activities, in the same geographic area, to proceed without prior department review for federal consistency.

(8)  This section shall not apply to the review of federally licensed or permitted activities for which permit applications are filed with the appropriate federal agency prior to approval of the state coastal management program by the appropriate federal agency pursuant to 16 U.S.C. ss. 1451 et seq.

History.--s. 8, ch. 78-287; s. 1, ch. 90-220; s. 53, ch. 90-331; s. 5, ch. 92-276; s. 61, ch. 93-206; s. 29, ch. 98-176.

¹Note.--Repealed by Pub. L. No. 94-579.