Gov. Douglas likely to propose environmental permit reform
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By Louis Porter Vermont Press Bureau - Published: January 5, 2009
MONTPELIER — As part of his economic recovery program, Gov. James Douglas will likely propose changing how environmental permits — from Act 250 land use approvals to the many other permits issued by the state — are handled and appealed.
It is familiar, if rocky, ground for Douglas. An earlier permit reform initiative was among the first major proposals of his administration, now entering its fourth term.
The relative success of the original permit reform, which established the environmental or e-court, is a subject of debate.
Some of the state's environmental activists worry about the lack of citizen involvement in the new environmental permits. However, members of the administration, including Douglas, believe the permit process is still too slow and too unpredictable for developers and companies trying to obtain permits.
Now when he talks to business owners or managers "they mention either the reputation the state has for onerous permitting, or their own experience," the governor said recently.
There has been progress in making the permitting process better — some of it included in a new housing bill that went into effect last year, as well as through the first round of permit reform nearly a half-decade ago. But Douglas said the process "is still an issue."
There are several possible changes that may be part of the permit reform proposals that the administration will ask lawmakers to approve as early as mid-January.
Permits that are appealed to the courts receive a "de novo" or complete review, in effect a brand new hearing. One idea is that such appeals would be "on the record" as appeals to the Vermont Supreme Court are now. In other words, the appeals would be a review of the quality of the evidence and procedure used to grant the permit, not a complete review of the case and all its facets.
Another idea being considered by state officials is to give Agency of Natural Resources permits — those can be anything from the many wastewater and drinking water permits to air discharge permits — more weight before the boards or courts that hear applications or appeals of permits.
Those ANR-granted permits might, for instance, be able to be appealed to the e-court, but not to the state's district commissions, effectively giving the work and opinion of the ANR staff more weight, said Laura Pelosi, commissioner of the agency's Department of Environmental Conservation.
"We have a fairly stringent review process," she said.
But there are sometimes problems with those ANR permits. For example, they may not follow the agency's own guidelines, or staff may contradict or ignore science, said Annette Smith of Vermonters for a Clean Environment.
Smith already sees "a substantial deference to ANR's work" from e-court judges and district commission members, Smith said. "They carry a great deal of weight."
That doesn't mean there is no need to improve and change the permit process in the state, Smith said. But it should be done to improve the ability of citizens to be involved in the process, not in a way to lessen their role, she said.
And permitting is a problem sometimes, especially for small businesses, Smith added.
"That is where I hear the most legitimate complaints, from small business people, who seem to have to jump through more hoops than companies like Omya, IBM or GE," she said.
Peter Young, head of the state's Natural Resources Board that intervenes in or decides some permitting cases, said there is always opportunity to improve permitting in Vermont.
"Permit reform has been going on off-and-on probably since the day after Act 250 was invented," said Young, who has been asked by Douglas, along with Pelosi, to review possible changes to the issuing and appeal of permits.
"What can be done to make the permitting process more efficient," he said. "Maybe it will help us do something to come out of our economic funk."
The "on the record review" of cases is one idea, he said.
"We have heard from many people, 'why do we try the same case twice?'" Young said.
Another possibility is to rely more on the licensed professionals that applicants hire to design or put in a community septic system to ensure that the project complies with state laws, Young said.
"We are still talking to people who use the system," including land-use lawyers and applicants, he said.
Brian Shupe, Sustainable Communities Program Director for Vermont Natural Resources Council, said he is worried about the way the possible permit reform proposal is being drafted.
"It is a disturbing process," Shupe said. "The first outreach was in mid-December in an effort to get a proposal together by mid-January."
He also has concerns about the five proposals he has heard about so far that might be part of any legislation.
"None of those, we feel, would do much to improve the permit process," he said.
The permit appeals process has already become more formalized and legally structured. Moving more in that direction might help applicants, but would not make it easier for citizens to be involved in the process, he said.
"Act 250 and the other permitting processes do deserve a hard look," Shupe said. But that should be done in a complete way, not by dusting off proposals that have been rejected in the past, activists said.
Pelosi has talked to activists, including Smith, about the permit reform changes.
"My hope certainly is that we can come up with something that everyone can agree on," she said.
But ultimately there may be a difference of opinion about the need for charges, especially to Act 250, which governs so many land use decisions in Vermont.
"It works. It is not the ogre it is made out to be," Smith said. Something like 99 percent of all Act 250 permits are ultimately approved, she said.
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