Sunday, February 7, 2010

Governor Rell's Executive Order No. 39 to review state environmental permitting

On February 3, 2010, the same day she delivered her State of the State address, Governor Rell issued Executive Order #39, which received little press. With the issuance of this executive order, effective immediately, the Governor has established a Permitting Task Force to examine state agency permitting processes that impact the environment, public health and public safety. Why? The state permitting processes "often have proven to be cumbersome and time-consuming." The task force is charged with developing recommendations for "simplifying, streamlining and if appropriate, repealing such processes." Tall order in a timeframe of 45 days. Hope springs eternal. (The deadline is March 20th.) The appointees to the task force will be consumers, representatives of business, industry, the construction industry, labor and municipalities. Noticeably absent are those skilled in issues of the environment, public health and public safety -- the subject matter of the permits.

Examined from a state wetlands law perspective, this order brings under the microscope the DEP's processing of wetlands permits for regulated activities proposed to be undertaken by state agencies (and infrequently for municipal wetlands applications when the agencies have failed to complete their municipal duties within the statutory timeframes.) The DEP has no timeframe established by statute to complete its duties, while the municipal agencies live within very short turn-around times for commencing public hearing.

Lest you think that I am advocating strict deadlines for DEP, actually I am questioning the wisdom of the statutory deadlines imposed on municipal agencies. Many agencies hire environmental consultants to evaluate the applications -- so that there is substantial evidence to support their decisions. Sixty-five days from date of receipt to act on an application (when there is no public hearing and no extension is granted) or sixty-five days to commence a public hearing, thirty-five days to complete it, thirty-five days to act on the application (with a possible total of sixty-five days of extension.)

Although all state agencies are mandated to cooperate, the task force won't be taking too much time away from processing applications. The task force has forty-five days to act (no extensions even if it holds public hearings) and it's already day four.

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