Legislation to expedite permitting: Raised Bill No. 5208

Time is not on their side, Part II: The Regulated Community

In the previous bill we looked into, Raised Senate Bill No. 120 establishing legislative review of DEP guidance documents, time was not on the side of the DEP commissioner and the environmental community: review of guidance documents and promulgating such documents as regulations will delay the DEP from protecting the environment, so say the bill's opponents. Now it's the regulated community's turn.

The problem that the bill identifies is that it takes too darn long to get approvals for projects which generate new jobs. The solution proposed by Raised Bill No. 5208 is for the commissioner of the department of economic and community development to establish "teams" to expedite review of state permit applications that would create at least 100 jobs (or 50 jobs in an enterprise zone or brownfields). There is a list of projects not eligible to be expedited: projects for final disposal of solid waste, biomedical waste, or hazardous waste, for the production of electricity, for the extraction of natural resources, for the production of oil or for operating an oil, petroleum, natural gas or sewage pipeline. The team will include those from DECD, DEP, DOT, the regional planning agencies, and any towns that choose to participate. The DECD's sole criterion for setting up a team is the creation of 100 jobs (or in some cases, 50).

A town may seek to have the DECD establish a team for the creation of 10 jobs in town. In that case, the DECD is to ponder the wage and skill levels in vicinity, the project's potential to diversify and strengthen the area's economy, and capital investment involved. None of those factors, and for that matter no factor applies, when the DECD is looking at a project creating 100 jobs.

The significance of being an eligible project is that the team is that final agency action on all approvals is to occur within 90 days of the submission of a complete application. The team accomplishes this through a memorandum of understanding [MOU] which has the authority to rescind or modify existing law, such as, "the forms, fees, procedures or time limits for the review or processing of permit applications" for the agencies that are part of the MOU. The teams can not alter the procedures for federally delegated permits administered at the state level. The bill as proposed has a baffling provision. The DECD with some help from DEP and DOT "shall develop a standard form for each memorandum of understanding." So which is it? Is the DECD developing a standard format for provisions in the MOU or is each MOU just going to have the same caption headings with the substance unique to the specific projects? Do the proponents know?

Such a process represents quite a savings of time at the state level. Time can be saved at the local permitting approvals as well if the municipality, by way of a legislative resolution asks the DECD for a "team" for a project that will create as few as 10 jobs. At the state level, the DECD will convene the team and establish, for example, which DEP timeframes will be shortened. At the local level, the board of selectmen or the city council will pass a resolution asking the DEC to set up a team that could end up shortening the review time for the planning and zoning commission, the inland wetlands and watercourses agency, the water pollution control authority, the historic district commission, to name a few agencies that can be impacted.

The bill states the expediting of the permitting process does not alter the substantive provisions of the affected law. In theory that may be true, but if a wetlands agency has 30 days or 45 days -- with no possibility of extension, how likely is it that the substance of the permit will be unaffected? Will the fees paid by the applicant be increased so that the wetlands agency can afford to pay its consultants for expedited review? Notably it is not the wetlands agency, but the town legislative unit that decides the creation of the 10 jobs is the overriding factor to consider. Not likely that the board of selectmen or town council will consider the resource impacts to the wetlands when deciding whether to seek expedited permitting. And then there are the rights of the environmental intervenors under the Connecticut Environmental Protection Act. Will those rights be reduced to three minutes of public comment at a public hearing?

Perhaps this whole model will break down at the DECD level. DECD will have to do more with no additional staff. DECD has to staff these teams and hold a meeting within 14 days of determining a project's eligibility and developing MOUs that will have a project acted on within 90 days.

The public comments received at the February 25th public hearing before the Commerce Committee fell into expected camps, although the proponents were a bit tepid in their support. The Connecticut Business and Industry Association supported the concept, in two sentences of testimony. The Connecticut Development Authority, a quasi-public agency, was thankful that brownfields were included in the mix of projects. The Home Builders Association of Connecticut endorsed the bill -- if amended to include construction jobs created as jobs to be counted (which the bill as written explicitly excludes.) The Connecticut Conference of Municipalities (CCM) supported the bill, focusing on the delays in projects that need state agency approvals. No mention was made that municipal agencies could be fast-tracked as well without necessarily receiving the fees to support expedited review.

Three environmental groups opposed the process as too expensive (increased costs for more staff at DECD, DEP and DOT). Sierra Club supported increased resources at the state agencies to process applications more expeditiously; Environment Connecticut supported finding ways, not including this bill, to expedite approvals by meetings of the stakeholders; CFE noted the lack of public voice in the expediting process.

Joan McDonald, the Commissioner of Economic and Community Development, presented the most detailed comments. While expressing that she "fully supports any effort to expedite state and local approvals," she notes the bill "may overwhelm existing resources." She counters the notion of "teams" with the creation of a position in DECD of an ombudsman who would direct state and where applicable, muncipal agencies how to go about expediting their processes. The ombudsman would be paid by a user fee by the applicant.

Commissioner McDonald refers to "many states" having "similar approaches." Those states aren't named. Perhaps that is a good starting place: a review of what other states have done to expedite approvals and whether various stakeholders are satisfied with.

She makes a number of insightful points. The bill as written doesn't require the eligible projects to be compatible with the state's responsible growth strategies, consistent with the state plan for conservation and development or to have taken environmental justice issues into consideration.

But on balance, whether a "team" or an "ombudsman," to support this bill you will have to be comfortable with a czar in charge of the permitting process, because you won't have advance notice which statutes will be abrogated, modified, or set aside for a given economic development process. Jobs at any cost, anyone?