The Senate Tuesday adopted Senate Resolution 226 (Yudichak-D-Luzerne) to require the Legislative Budget and Finance Committee to do an independent performance evaluation of DEP’s Chapter 102 (Erosion and Sedimentation) and Chapter 105 (Water Obstruction and Encroachment) permit programs.

These two DEP permit programs account for about 6,000 of the 30,000 permit applications DEP reviews every year and are critical to any land development project undertaken in the Commonwealth.

Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, said, “Democrats and Republicans, as well as business leaders and environmental groups, can all agree that DEP’s permitting must improve if we are to continue creating jobs and protecting the environment. With DEP staffing levels at historic lows and turnaround times frustratingly long, Senate Resolution 226 will provide us the necessary baseline data to improve the efficiency of DEP’s environmental permitting process.”

“Independently evaluated baseline data is the critical element that is currently missing and we must add it to the conversation about environmental permitting reform.  The report required by Senate Resolution 226 will provide an analysis of statewide permitting programs to help us identify needed improvements that balance and safeguard environmental protection with economic development and job creation activities,” said Sen. Yudichak.

When he introduced the resolution last October, Sen. Yudichak said, “All too frequently, regulated communities have expressed concerns about inconsistency or delays in the DEP’s permitting processes.

“While they certainly recognize the need for environmental protection, permit applicants maintain that delays result in unnecessary work interruptions and economic losses for both businesses and surrounding communities.

“In response, DEP has undertaken efforts to facilitate permitting and improve outcomes – including conducting their own internal reviews and audits to identify program or permit deficiencies.

“Specifically, this resolution will call for a thorough performance evaluation of DEP’s two largest permitting programs that are administered on a statewide basis and that affect nearly all projects that include construction and development – Chapter 102 permits (Erosion and Sediment Control) and Chapter 105 permits (Water Obstruction and Encroachment).

“To establish a fair and objective baseline in this debate, it is clear that an independent review of DEP’s permitting programs must be completed.

“Accordingly, under this resolution, LBFC would consider the efficiency and effectiveness of permitting programs by examining varied outlooks, including resources and workloads (overall and by office), performance levels, policies and procedures, fee and incentive structures, applications and outcomes, input and efforts by DEP and applicants, and best practices. Recommendations for practical legislative solutions would be provided in a report to the Senate within one year.”

The text of the resolution follows--

Directing the Legislative Budget and Finance Committee to conduct an independent performance evaluation of certain Statewide environmental permitting programs administered by the Department of Environmental Protection.

WHEREAS, The Department of Environmental Protection is charged with the protection of this Commonwealth’s air, land and water from pollution, as well as the environmental health and safety of residents; and

WHEREAS, Federal and State laws and regulations require the Department of Environmental Protection to review environmental permit applications and make determinations for approval, including the Clean Streams Law, the Dam Safety and Encroachments Act, the Federal Clean Water Act and related statutes; and

WHEREAS, Municipalities and industry and business communities that perform activities subject to environmental regulation and permitting have raised concerns about the cost, economic impairment and missed opportunities for job creation resulting from instances of inconsistent review of environmental permit applications and unreasonable delays in environmental permit review and issuance by the Department of Environmental Protection; and

WHEREAS, The Department of Environmental Protection has undertaken considerable efforts to address concerns raised regarding its environmental permit review process and continues to work to identify problems and implement technical solutions within available resources; and

WHEREAS, Continued concerns expressed by stakeholders on all sides of the environmental permitting process deserve the attention of the General Assembly, which may be addressed through an independent, thorough and impartial performance evaluation; and

WHEREAS, Such a review of Statewide environmental permitting programs by the Legislative Budget and Finance Committee, with assistance from impartial experts, is necessary to establish a fair baseline from which additional administrative and legislative policies may be established; therefore be it

RESOLVED, That the Senate direct the Legislative Budget and Finance Committee to conduct an independent performance evaluation of environmental permitting under the Erosion and Sediment Pollution Control Program and the Water Obstruction and Encroachment Program administered by the Department of Environmental Protection and county conservation districts; and be it further

RESOLVED, That the Legislative Budget and Finance Committee, in conducting the evaluation, shall seek assistance, through cooperation or contract, from impartial individuals who have recognized experience and expertise in the oversight and implementation of environmental laws and regulations and environmental or energy engineering or sciences, including, but not limited to, individuals from accredited academic institutions; and be it further

RESOLVED, That the Legislative Budget and Finance Committee include the following elements in its evaluation of permitting under the Erosion and Sedimentation Program and Water Obstruction and Encroachment Program:

(1) consideration of concerns for permitting programs expressed by stakeholders, including the Department of Environmental Protection and regulated municipality, business and industry representatives;

(2) an analysis and comparison of total and individual resources and workloads for the permitting programs and all offices charged with administration of the programs, including central and regional offices of the Department of Environmental Protection and county conservation districts;

(3) a comparison of permit review times, performance levels and goals for each office of the Department of Environmental Protection and a representative sample of county conservation districts charged with administration of the permitting program;

(4) a review of the appropriateness and effectiveness of applicable policies, procedures or guidance for permit review and issuance, including the permit decision guarantee program and related fee structures;

(5) an analysis of permit application procedures and outcomes, including the examination of random samples of applications and interviews with permit applicants and appropriate program staff of the Department of Environmental Protection and conservation districts;

(6) an evaluation of recent and ongoing efforts and initiatives by the Department of Environmental Protection or conservation districts to remove obstacles to effective and efficient permit reviews and improve outcomes for applicants;

(7) a review of similar permitting programs administered in this Commonwealth or other states in an effort to identify best practices or offer suggestions for improving review performance without sacrificing environmental protection; and

(8) recommendations for practical administrative or legislative actions that improve administration, timing and outcomes of the permitting programs; and be it further

RESOLVED, That the Legislative Budget and Finance Committee provide a comprehensive report of its findings and recommendations to the Senate not later than one year after the adoption of this resolution.

Related Story:

Wolf, DEP Taking Action to Reduce Backlogs, Improve Oversight, Modernize Permit Process

[Posted: Feb. 6, 2018]

2/12/2018