DEP Regulatory Reform

Transcription

1 DEP Regulatory Reform March 6, 2012 Draft Regulatory Reform Action Plan c/o Jakarta Childers, Commissioner s Office Massachusetts Department of Environmental Protection 1 Winter Street, 2nd Floor Boston, MA Re: Regulatory Reform Action Plan Dear Commissioner Kimmel: Thank you for the opportunity to comment on the Draft Action Plan for Regulatory Reform at MassDEP. The Massachusetts Marine Trades Association (MMTA) applauds the Department s efforts contained in this draft and to continue to meet legislative mandates with reduced resources. The streamlining efforts outlined in the Draft Action Plan represent a positive change. MMTA remains particularly hopeful that the proposed strategies will indeed increase permitting efficiency to meet the speed of business and ultimately reduce permitting costs. These two issues timeliness and unnecessary permitting expense have beleaguered the agency for decades. The recreational marine industry contributes positively and significantly to the economic strength and quality of life enjoyed in Massachusetts. The business of boating provides jobs, economic opportunity, public access to our precious waterways, improves aesthetics of inland and coastal waters and supports environmental stewardship while promoting a family-friendly form of recreation and tourism. With 186,000 state and federally registered vessels and 1 million anglers in the Commonwealth and over 5 million residents living within 10 miles of the ocean, any negative impact on the stability of the marine trades (economic, regulatory or others) has the potential to negatively affect millions of citizens and visitors. The Association and its 300 member firms also seek to stem the exodus of recreational boating businesses from the Commonwealth and the loss of waters-edge usage for recreational boating purposes. The Association acts as a source of information about recreational boating and boating businesses for the general public, via its website at for the Massachusetts Legislature, where the Association is a frequent participant in public hearings and in the 50- member Legislative Boating Caucus; and for executive branch agencies, the MA Federal delegation and authorities with regulatory and economic development responsibilities.

2 Established in 1964, the Massachusetts Marine Trades Association (MMTA) is the statewide, non-profit, representative body for over 1,200 marine trades businesses in the Commonwealth. Our businesses employ over 27,000 men and women and generate an estimated $1.7 billion in annual economic activity for Massachusetts. The mission of the Association is to further the interests of the marine trades and the boating public through the promotion of boating, participation in legislation and professional improvement programs. 1. MMTA hopes that efforts to increase the use and efficiency of edep for all programs within the Department will be actualized soon. Many industries, the business of boating included, would benefit significantly from eas in filing permit applications, renewals and self-certifications. MMTA finds edep is a promising means of reducing the slow back and forth of paperwork and of encouraging consolidation of filings. Once edep is fully functional, we can hope that increased operating efficiencies will be reflected in reduced permitting fees. We do recognize, however, that no one at DEP seems to have administrative support any more anyway. So, the less copying and distribution time spent internally, the more time DEP staff will have left for sciencebased, professionally-based action. It is difficult for modern businesses to accept that the Commonwealth cannot modernize its own communications systems and yet expects small businesses to keep up with arcane regulatory or policy changes. Enhancing edep will be an excellent middle ground. 2. One overarching comment we make whenever we meet with senior DEP or EOEEA management is that the periodic effort to revise silo d regulations and statutes to combine public hearings and public comment periods for overlapping regulatory programs (state and local) should be expanded, to reduce project review timelines without altering outcomes (and perhaps improving them as synergies among programs develop). The Chapter 91/MEPA combination discussed below is a partial improvement, but many other programs would benefit from consolidated hearings, even if an umbrella statutory change is needed to do so. 3. Permit consolidation within the Dredging Program DEP is contemplating a unified permitting application process for dredging activities where Chapter 91, 401, and water quality certification overlaps. This is a great example of great direction, please take it further! The effort is geared toward maintenance dredging projects and where any one of the necessary permits adequately protects resource interests. There will be no diminishing of project review requirements and resource protection standards will remain as they are. We also comment that it is essential to halt the strict definition of maintenance dredging as requiring a prior permit from the Commonwealth, because so many areas have long been used and dredged, for hundreds of years even, yet did not possess permits for dredging. Also, improvement dredging should not be treated so negatively, especially in previously degraded areas or where the post-dredging result can be highly beneficial for water quality and creation of clean, useful habitat. The Department possesses a multitude of ways to stall and stop projects which make use of the waterways. We don t need more ways to say no. What we need

3 are more ways to say yes to respectable projects more quickly, without a dysfunctional prohibition preventing many small businesses from even trying. 4. Chapter 91 Licensing It is being considered that Chapter 91 licensing can be concurrent with the MEPA process; this appears to be an overhaul of the Joint MEPA EIR Application provisions. Of course, one s license would not issue until the Secretary s Certificate is signed but the time line for a license to be issued will be greatly reduced. We agree strongly that this approach will allow DEP staff to complete the administrative review process and move forward with public comment before the MEPA Certificate is finally issued. It is also proposed that a license can be issued before the local Order of Conditions is recorded. This is terrific. MMTA lauds this effort. We would also be remise if we didn t remark how extraordinarily understaffed the Chapter 91 licensing program is, statewide. They do yeoman s work in an effort to remain consistent and timely and up to date on relevant issues, yet they simply do not have the necessary staff even now, before the economy picks up. Please don t cut them further, or assign generic staff without the specific skills to make sound Chapter 91 decisions. 5. We would also be remise if we didn t restate what is said constantly but does not appear in the Reform Proposals: The extraordinarily intricate detail of the Chapter 91 licensing regulations merits strategic streamlining to allow more minor actions and changes to occur without active DEP oversight or attention. The Minor Modification program can be expanded, as can reconstruction or redevelopment of pre-existing buildings for changes in use which meet certain published criteria. Use Programmatic General Permits or General Licenses or the like to do so (see below). The intersection of Municipal Harbor Planning and Designated Port Areas has also been clogged with failed good projects big and small -- for decades, while especially in Boston huge waterfront projects seem to be the only ones which can afford to put the shoulder to the wheel for the decade it takes to get through it all. Municipal Planning Departments have no more money than DEP (or CZM) to afford this type of holdover from the heydays when planning was both respected and funded. It is time for a major overhaul to find a way to allow smaller projects which cannot strictly comply with the full Chapter 91 regulations to nevertheless proceed when worthy. The Designated Port Area regulations have also been counter productive for attracting marine industrial investment ever since they went from incentivizing federal grant applications to prohibiting non-marine industrial activities. This, too, merits muscular attention. 6. Chapter 91 License Terms License terms for non-water dependent structures have traditionally been negotiated by the applicant and the Department. A proposed guidance policy would create a structured and transparent mechanism for establishing license terms for non-water dependent licenses. Again, a public review and comment process would apply to the guidance policy, so specific input on that will have to wait. For non-water dependent applicants, this is a significant change as important project elements rely on license terms. In any case, we at MMTA often find ourselves the only voices in the room for traditional water dependent uses (not just strolling by the water, but actually using the water) and the continuing need to protect the public s right to navigate the waterways.

4 We support longer license terms, for sure, but also continued focus on water dependent uses actually USING the waterway, not just having space set aside to look at it. Lots of partnerships among landside real estate mavens and in-water activation professionals are easily available to make such collaborations a great success for all. 6. Small Non-Commercial Docks and Piers As a way to reallocate Department resources, small non-commercial projects may be eligible for general licenses. Smaller projects that are able to meet certain conditions and performance standards would be issued a general license. This process would, hopefully, be much quicker for eligible projects than the existing application process. But why confine this approach to only non-commercial docks and piers? Why go back to the days of yore when covering one s costs or even making a profit seemed to taint how the environmental impact is addressed? There seems not to have been inclusion of a generic Chapter 91 license or a Programmatic General License at this time. Why not, for appropriate circumstances? 7. Wetlands Protection Act/Wetlands Review The Department will strategically review Notices of Intent filed with one s local conservation commission, focusing on those projects in sensitive resource areas. The Department will also now issue a DEP file number as soon as the Notice of Intent is filed so one no longer has to wait before the conservation commission begins its review. Most of DEP s resources in wetlands review will be focused on those Orders of Conditions appealed to the Department and shift away from reviewing smaller residential alterations and activities in the buffer zone. MMTA certainly agrees that less focus on the buffer zone for any project is a welcome change. It was a highly discouraging experiment to have seen years of internal and external working group dialogue go into Abbreviated Notices of Intent only to have no one use the process because it was still so onerous. We support elevating Commonwealth attention to the big picture, as proposed, and letting localities make the first effort to decide on a Notice of Intent. They won t always be perfect, but the appeal process is there when needed. 8. And in reference to the Wetlands appeal process, many of our members have experienced the agony of Adjudicatory Proceedings which cost as much as court trials, when a vastly more abbreviated, science-focused process would meet the statutory requirements and, in many cases, all parties needs. Keep up the initial dispute resolution, but then get rid of all the formal procedural motions and get immediately to a half-day Adjudicatory Proceeding. 9. Finally, MMTA agrees that more programs should be self-certification based. Focus enforcement on overt, knowing lies for a few years, and self-certification will be taken very, very seriously indeed. MMTA is always available to the Commissioner and his staff to provide feed back or answer questions when needed. Our best contact is MMTA Government Relations and Legal Counsel Jamy B. Madeja. She can be reached at or by at jmadeja@buchananassociates.com.

5 Sincerely Jamy B. Madeja, Esq. for Jack Kent, III, MMTA President Cc. MMTA LAT