As part of the reorganization of the Maine Land Use Regulation Commission into the newly-formed Land Use Planning Commission (LUPC), large development projects in the unorganized and deorganized territories in Maine will soon be required to undergo a two-step permitting process. Under the terms of a draft Memorandum of Understanding (MOU) that will be reviewed by the Commission at its meeting on Monday, August 20, the Maine Department of Environmental Protection (DEP) and the LUPC will attempt to coordinate their reviews of development projects subject to the Site Location of Development Act, commonly known as the Site Law, as well as grid-scale wind energy developments under the Wind Energy Act. The draft MOU, however, acknowledges the “complexity of potential jurisdictional questions” involved in the change, which are likely to cause uncertainty as projects are proposed in the near future.
Pursuant to a new law adopted last year, known as Public Law 2011, Chapter 682, beginning on September 1, 2012, projects subject to the Site Law in the unorganized or deorganized territories will be permitted by the DEP. In addition, DEP will also issue permits under the Natural Resources Protection Act for any projects in LUPC territory that DEP reviews under the Site Law. For any project that it reviews under the new law, DEP will also be required to determine if:
The proposed development is an allowed use within the subdistrict in which it is located, as defined by the LUPC; and
The project “meets any land use standard established by the commission and applicable to the project that is not considered in the department’s review.”
The MOU is intended to establish a framework for this dual review. Under the MOU, applicants will be required to obtain a certification from the LUPC that the project is an allowed use in the subdistrict where it is proposed and that it meets any applicable LUPC permitting standards not otherwise being addressed by the DEP, such as compliance with flood standards, subdivision rules, and dimensional requirements. Applicants may do this either by first obtaining the certification, and then applying to the DEP, or by submitting applications to the LUPC and DEP concurrently. In cases where the applicant submits concurrent applications, the LUPC will be required to provide a certification to DEP within 60 days of acceptance of a complete application, assuming no direct Commission review is required. In addition, the MOU obligates the LUPC to prepare new certification forms that will be included in DEP’s Site Law application packet and address other coordination issues between the agencies.
Although the new law and MOU are intended to delegate the environmental permitting of large projects to DEP, they nonetheless raise several potential traps for the unwary. These include the following:
Given the dual review process, applicants and project opponents will now have two separate agencies in which to battle over contested applications. This will raise significant strategic issues, as developers must decide whether to face those potential battles simultaneously or one after the other.
Second, because the certification process would appear to be a final agency action, at least by the LUPC, parties will typically have to determine whether to appeal adverse LUPC decisions before the DEP has issued its final decision on a project. This raises the potential of having multiple appeals on the same project pending at the same time, and thus amplifies the need to develop a strong record for appeal in the first instance before both agencies.
Third, although the apparent intent of the new law is to delegate to DEP the review of environmental issues, it is unclear whether the statute actually accomplishes that. The MOU states that the LUPC will evaluate compliance with its rules only for those standards not being considered by DEP. Given that few, if any, of the LUPC’s standards, at least as currently written, are identical to those in DEP’s rules, we expect that project opponents will argue that the LUPC will still have to review most of its standards independently. This would seem to defeat the purpose of the new law, but is likely to be a touchstone for litigation.
If you would like more information about how the new law and draft MOU may affect your project, please contact: Brian Rayback (207-791-1188 or firstname.lastname@example.org); Matt Manahan (207-791-1189 or email@example.com); or Chip Ahrens (207-791-1298 or firstname.lastname@example.org).