Maine DEP and LURC Propose MOU for Permitting Development Projects

by Pierce Atwood LLP
Contact

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:

  1. The proposed development is an allowed use within the subdistrict in which it is located, as defined by the LUPC; and
  2. 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:

  1. 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.
  2. 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.
  3. 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 brayback@pierceatwood.com); Matt Manahan (207-791-1189 or mmanahan@pierceatwood.com); or Chip Ahrens (207-791-1298 or pahrens@pierceatwood.com).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP
Contact
more
less

Pierce Atwood LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.