Notes to the New DES Commissioner
I suppose this is most presumptuous of me to give advice to the new Commissioner of the Department of Environmental Services? This must be what happens when you have been working in a vocation (and advocation) for the last 40 years: one actually thinks one might have a suggestion to two. I trust the new Commissioner will take these in the spirit they are given - as something that will make DES more "customer responsive”, to paraphrase our new Governor.
For those of you who don't know, I have participated on numerous working groups sponsored by the Department, typically rule-making work groups, from Shoreland to Subsurface to Alteration of Terrain to Wetlands. Today, I will focus on Wetlands.
Make All Minimum Impact Permits "Permits by Notification": These are wetland impacts of less than 3,000 square feet. These are very de minimis areas of wetland impact. Conditions can be applied to avoid areas of endangered or threatened species and other sensitive areas, like vernal pools. Conditions can be applied to basically cover needed impacts, like crossings of wetlands to buildable uplands, and avoid foolish impacts, like building tennis courts or swimming pools in the wetlands. This would include expedited permits, agricultural permits and other notification projects.
Make All Permit by Notifications Approved Within 10 days of Filing with the Department: Most Conservation Commissions have decided to meet only once a month. To have a permit held up just because a Commission decides that they chose to meet only once a month and let their neighbors/applicants wait for them is unconscionable. These are very small impacts. Everyone says "they are volunteers". Exactly! They volunteered and they took on the responsibility of giving input, if any, to their neighbors/applicants in a reasonable time. Delaying a month is not reasonable.
Make Use of Certified/Licensed Professionals: The State has Certified Soil Scientists, Certified Wetland Scientists, Licensed Septic Designers, Licensed Surveyors and Licensed Professional Engineers. All have codes of ethics, continuing education requirements and boards that oversee their work. If a certified/licensed professional prepares the Permit by Notification and signs the application (along with the landowner) that the project has meet all the conditions of the notification, including review of the impacts to insure avoidance and minimization, then the Wetlands Bureau staff should accept their findings. Rather than wasting time going through all the applications with a fine tooth comb, how about relying on compliance checks? If there are any bad apples out there, the Department will find them soon enough.
Avoidance and Minimization Workshops: Along with giving responsibility to the professionals, there should be training in what constitutes avoidance and minimization. DES already has a working draft of an avoidance and minimization guidance document. Train the professionals to properly craft an application that meets the requirements of the Department.
Allow Electronic Submissions of Wetland Applications: With the advent of electronic submissions for septic system designs, it only makes sense both environmentally and for efficiency that wetland applications be saved and processed digitally. All plans, mailing receipts, application forms, DNR and DHR response letter, and other, can all be scanned and sent in digitally. Save the forest, save the paper, save the storage space.
Permits by Notification Should be Approved Administratively: Wetland inspectors should not be wasting their efforts and time on minimum impact projects. They should be focused on the minor and major projects. Administrative staff can send out an acceptance of the PBN or a hold on the PBN if the Conservation Commission objects. With the exception of compliance checks, the inspectors should be spending their time of the bigger and more complicated projects.
For Larger Impact Projects and Those That Require Compensatory Mitigation:
Develop a Five Tier Wetland Assessment: There is plenty of information about functions and values of wetlands. There are numerous and complicated wetland assessment methods. What is needed is a simplified assessment method that ranks the wetlands into 5 levels, with Level 1 having the least function and value, and Level 5 has the most functions and values. Impacts to Level 1 and Level 2 wetlands should not require much review. Level 3 wetlands need to be scrutinized in more detail. Level 4 and Level 5 wetlands need a complete alternatives analysis, regardless of the square footage of impact.
Incorporate the Swap into Permitting: It is scientifically supported that some higher functioning wetlands are degraded by activities in the adjacent uplands. On large projects where Level 4 and 5 wetlands are present along with Level 1 and 2 wetlands, there should be an encouragement for a "swap", where Level 1 and 2 wetlands are filled, but Level 4 and 5 wetlands are protected with an upland buffer. The concept of statewide wetland buffers are unlikely to be supported, but I do predict support for the idea of protecting the highest value wetlands on a property with a buffer to be offset by allowing other wetlands to be filled. A bit of Yankee ingenuity, mixed with pragmatic land use.
Stop Being a Fee Supported Agency: It is one thing to be tied to the economy as are consultants. We get that when times are good, we make money. We then sock away money because we expect (and know) the good times will not last and we make arrangements (like the ant) to overwinter. But trying to run a government regulatory program similarly tied to the economy is madness! It would be more prudent to straight up fund the agency. Any excess from permitting goes into the general fund in good times, and you have stable funding in bad times.
Efficiency Matters: People rarely understand the complexities of wetland permitting. So if you can make it understandable to the majority of folks, you have accomplished more than you can imagine. If you tell people that they have a Level Five wetland on their site and they have to be prepared for a long, expensive and difficult permitting process, they will appreciate it. I can tell you I have delivered that message more times than I care to remember, but even hearing bad news the clients keep coming back. Straight talk and rapid decisions are what people are looking for.
Kindness Matters: Sometimes people come to me with impossible situations. I have done more pro bono work than I care to remember. An attitude of kindness and understanding, even though you have to say "no" or say "the chances of getting a permit is like the proverbial ice cube in hell", will honestly make people feel better. Being a regulator requires saying "no" or "this is a violation". But it also requires that you be sympathetic and understanding, even if the tennis court in the stream seems like the stupidest idea you ever heard!
So these are my ramblings for the new Commissioner. It is a tough, thankless job that doesn't pay enough, gets you little respect and requires you work fifty to sixty hours a week. Good luck and may the legislative winds be with you.
In My View” is an opinion article that will be posted to you once a month. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am sending this out to associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated. If you do not wish to receive further articles, let us know by a “reply to”, and we will delete your name. If you know of someone who might want to receive future articles, just send this on to them and copy us. We will add them to the distribution list. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
That concludes this Months article. Each past article will be stored on our website at HYPERLINK "http://www.gesinc.biz" www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.