Does permitting offer protection?

By Anne Adams • Staff Writer

MONTEREY — Whether you're putting up a new home or an electric utility, like Highland New Wind Development, there are permits aplenty to get. In Virginia, as in other states, laws and regulations apply to everything, and if you are building something, getting a permit is a way to show you understand the rules.

But there are many different permits for construction, and the regulations are complicated. Engineers, attorneys, contractors, and government agency officials all contribute to making sure the right permits are issued for protecting everything from wildlife to air and water.

Highland New Wind Development, before it began site work recently, got a variety of permits like any other industry. But what concerns citizens trying to understand the process is whether its utility plans have been reviewed thoroughly, and are adequate for protecting the ecologically sensitive Laurel Fork watershed where the 38-megawatt utility will be built. They are frustrated by the lack of federal oversight, or federal permitting, attached to this project so far.

That kind of federal involvement, however, is not required under the Environmental Protection Agency if the EPA has delegated general permits to states, which then issue coverage under one general permit to contractors.

EPA gives states the authority to issue individual permits or general permit coverage for construction, industrial activities, and water protection. States that qualify can get a "general permit" from the EPA, used to apply federal regulations under the Clean Water Act. They can also issue a number of individual permits to developers, depending on the type of industry and construction involved.

Virginia has statewide industrial and stormwater general permits.

Under a general permit, developers and contractors can "register" under for coverage with a description of what they're planning, and evidence they will manage stormwater runoff, drainage, and erosion and sediment to prevent pollution; the methods they use to keep chemicals or too much dirt from damaging rivers, streams and wetlands from either polluted water generated by the construction or rain water catching pollution on the ground and carrying it into waterways.

In the commonwealth, the general permit authority for construction stormwater discharge, once handled by the Department of Environmental Quality, has been handled by the Department of Conservation and Recreation since January 2005. The general permit granted by the EPA is good for five years. When it's time for renewal, Virginia goes through a public hearing and comment process before a new one is approved.

DCR registers contractors that have a proper application, and grants companies coverage under the general permit. The general permit has several, strict conditions companies must meet, and contractors are held accountable, usually through inspectors who visit construction sites. Those conditions are intended to reflect regulations of the Clean Water Act, and other federal laws.

DEQ has a general permit, too, for industrial stormwater from projects that have a point-source discharge.

DEQ and DCR can also issue individual permits — those given to developers for a specific project. At DEQ, individual industrial permits and others are issued to projects with specific hazards or those using known pollutants. DEQ also issues Virginia Water Protection permits for when water will be taken from a stream or other source at a project site. There is a list of industries that must get an individual industrial permit instead of general permit coverage; these include things like landfills, logging operations, paper mills, and those known to use certain chemicals or have clear hazards and point-source discharge.

EPA's general permit program has been criticized through the years for being a little too "general." A wide variety of industries are given general permit coverage by states, mostly with little, if any, review of plans at the time of registration other than to make sure the form is complete, and an approved erosion and sediment control plan and stormwater management plan is in place.

Most states have been granted general permits. It saves an enormous amount of time because it allows states to go through the federal review process for their general permit, and then give companies approval by registering them and providing them the list of requirements they must meet. It keeps government officials from having to inspect every proposal, which would take countless government resources and staff. It also avoids having to involve the EPA in reviewing every project. Virginia last year registered some 2,000 contractors for stormwater permit coverage, according to DCR.

Companies must develop Erosion and Sediment control plans, a Stormwater Pollution Prevention Plan (SWPPP) for its facility, or similar approved plans.

DCR, when it gets a registration application for coverage under Virginia's general permit for stormwater discharge, looks to make sure a company has those if required, but does not review them at the time of registration.

DCR depends on the authorities charged with approving E&S plans to make sure the project will comply with state regulations. Local governments in Virginia can be authorized by the DCR to be their own "planning authority" for E&S plans. Nothing about E&S plan approval calls for federal involvement.

Though the county is responsible for the E&S plan, the DCR is responsible for the SWPPP.

DCR construction permitting manager Eric Capps uses a good phrase for these plans; he calls them "living documents," that can, and often do, change during project construction. Further, he stresses, not every possible impact can be foretold before construction and planned for in advance.

DCR public relations manager Gary Waugh explained that getting plans in advance of construction is not required in the process. However, he noted, DCR is trying to revise its stormwater permitting process and that "is a deficiency we've noticed."

Dr. Pamela Dodds, a professional geologist with significant experience in this field, agrees reviewing plans ahead of time is vital. "Rather than simply accept the information provided by contractors, it is critically important for the appropriate personnel to thoroughly review and analyze the stormwater management plans submitted for registration under Virginia's general stormwater permit," she said. "A complete application does not necessarily equate to an adequate stormwater management plan. Additionally, construction should be allowed to begin only after the required details have been adequately provided. Significant damage can occur to our water resources if stormwater management details are addressed only as the construction proceeds.

"Both federal and state agencies have expressed great concern that water resources in the United States have already been compromised by poor management and disregard for conservation of our water resources," Dodds added. "The critical review of stormwater management plans by personnel in appropriate federal and state agencies is absolutely necessary for the preservation of water resources throughout our region and throughout the United States."

Where is the gap?

A Harvard Environmental Law Review study by Jeffrey M. Gaba notes that using general permits to satisfy the requirements of the Clean Water Act, raises "significant" issues. "How, for example, can a general permit, applicable to a wide variety of sources discharging into different bodies of water, adequately comply with the inherently site-specific requirements to ensure attainment of state water quality standards?" he asks. "How can the process of authorizing sources under the terms of a general permit adequately ensure public participation and citizen enforcement? These questions have existed since the beginning of the general permit program, but EPA has never adequately confronted the tension between the requirements for site-specific permitting and the generic, almost regulatory approach of general permits."

In fact, Gaba says, "EPA has failed to develop any coherent set of policies and for over two decades has issued a series of general permits that contain a hodgepodge of varying provisions."

The report cites case law that has called this into question. The EPA's general permit program, the report states, "is now essentially incoherent, and existing federal and state issued general permits violate many fundamental requirements of the Clean Water Act … The acknowledged efficiency advantages of general permits simply cannot trump the substantive requirements of the Clean Water Act."

EPA regulations say a permit writer, which is DEQ or DCR in Virginia, can require a developer eligible for general permit coverage to apply for an individual permit. Factors that justify individual permits include things like whether source is a significant contributor of pollutants.

EPA's involvement in stateissued permits is limited, Gaba notes. "Further, statutory requirements applicable to federal actions, such as preparation of an Environment Impact statement under the National Environmental Protection Act or endangered species consultation under the Endangered Species Act, may not apply when a state issues a general permit."

General permits for stormwater discharges, whether for industrial categories, construction activity, or municipal sewer systems, all rely on pollution prevention plans developed by the companies — the SWPPP.

Companies must develop their plans based on "best management practices," as outlined by the states and the EPA, to show how they will keep pollution in check. But Gaba says, although federally issued general permits must assure compliance with NEPA, ESA, and the NHPA that require site-specific evaluation, general permits issued by states do not. "In most cases, these permittee-developed plans are neither reviewed nor approved by the permit writer prior to authorization for discharge under the general permit," he said. "The use of these permittee-developed plans is, in many ways, inherent in the concept of general permits."

Where general permits issued to states go through a public notice and comment process, that's not true when a state grants general permit coverage to a specific company.

That, Gaba says, raises three significant public participation issues: "public availability of permittees' (registration statements) to be covered under the general permit, public availability of any permittee-developed BMP plan, and the right to a public hearing on any permittee's coverage under a general permit."

In Virginia, SWPPPs and registration statements are available to the public, but there is no public hearing or public notice when a contractor applies for registration under a general permit.

According to Gaba, EPA has been inconsistent in cases, "and has never established any right to public hearing on individual coverage under a general permit … In the absence of public disclosure of this information, the role of the public in supervision of permit issuance and enforcement, supplemental though it may be, is eliminated. No one, other than the discharger and the government, would have access to the information necessary to determine whether the discharger is eligible for coverage under the permit or has complied with the mandatory requirements for SWPPP development … In the absence of public disclosure of the plans, any possible supervision through citizen suits is essentially eliminated."

In one case cited by Gaba, the court found that while the Endangered Species Act didn't apply to a developer's individual authorization under a federally issued general permit, the application of the law to individual developers is still significant. "Since EPA has made endangered species review a prerequisite to permit coverage, a prospective permittee who does not properly undertake such a review should be subject to government enforcement and citizen suits under the Clean Water Act," he said. "Furthermore, information relating to the existence of endangered species should be a basis for a petition requesting that a prospective permittee be required to obtain an individual permit. This may be an appropriate resolution of the issue in the limited context of federally issued general permits," he said.

In Virginia, DCR's general permit for stormwater discharge references its compliance with the ESA, where applicable. The registration form for developers, and the conditions attached to developers, however, do not ask whether a project has conducted any assessment of potential impacts to endangered species.

Waugh explained its registration statement for coverage under the stormwater general permit was not identical to EPA's. Though the federal general permit for construction contains a box developers check to indicate they have reviewed potential impacts to the wildlife and environment; Virginia's does not. "But that's supposed to be caught during an environmental review," Waugh said.

Would an individual

permit apply?

In the case of Highland New Wind Development's utility project, some have asked whether the company could be required to get an individual industrial permit, as issued by the DEQ.

DEQ maintains list of categories it uses to determine whether a project would need such a permit. There is nothing on DEQ's list for wind turbines, and there wouldn't be; this is the first utility of its kind in Virginia.

Under EPA, which still issues individual permits sometimes, "turbines" are in one category, however.

Virginia's list does include a category that could be applied to HNWD's utility, if agency officials chose to do so. It's used at the discretion of the Soil and Water Conservation Board to apply to industries that are not already categorized. As one agency official said, "DEQ officials call it a 'catchall' provision, and it's used for developments not already defined by the agency. The board may require a stormwater permit, at its discretion, under this category … I am told by the inspection staff here that we have never done that."

However, this official explained, if DEQ found, after a facility was operational, that there was a pointsource stormwater discharge it concluded was a threat to water quality, "DEQ could require the owner to get a stormwater general permit and observe appropriate (best management practices) under the permit."

HNWD did not apply for any permits from DEQ — neither an individual permit, nor coverage under the agency's general permits. It is a developer's responsibility to know which permits it needs, DEQ says, although the agency does react to requests from other agencies or citizens who alert DEQ about a development that might need one.

The Soil and Water Conservation Board's stormwater management regulations stipulate the board can require a company to apply for an individual permit instead of coverage under one of the state's general permits.

DCR, however, says it has not issued any individual permits for stormwater discharge, nor has it been petitioned to require any, since it took over the program in January 2005.

EPA regulations, Gaba points out, say that "interested persons" can petition a state to require a developer get an individual permit. "There is no mandatory language associated with this right of petition," he says, adding that states have the discretion whether to grant or deny such a petition.

"Nonetheless, this provision constitutes an apparently unused mechanism by which citizens could attempt to compel a permit writer to address a specific source through an individual rather than a general permit," he said.

Virginia has tried to improve the permitting processes over the years.

Secretary of Natural Resources Preston Bryant points out that although it's a developer's responsibility to know the requirements of a permit, "Over the past couple of years, both DCR and DEQ have tried to be more transparent and helpful," he said.

"We have improved our agencies' websites to include FAQs, permit application check-lists, etc., to improve developers' and engineers' understanding and the quality of applications. It is not in either party's interest for incomplete applications to come into the office. That simply delays a project — we don't want delays and I know project owners don't want delays. So we've tried to be more helpful.

"For example, two years ago I started a series of roundtables with the engineering consultant community. I first focused on DEQ, then DCR. The purpose of the roundtables was for DEQ and DCR permit staffs to hear firsthand from engineers how they felt our process could be made better. I wanted to know what engineers' biggest frustrations might be. Likewise, I wanted the engineering consultants to hear firsthand from DEQ and DCR staffs where they thought engineers' permit applications most often fell short. It was a two-way dialogue."

Bryant conducted these roundtables before he joined Gov. Tim Kaine's cabinet, he said, because he was a partner in a civil engineering firm and had enough personal experience with the issues to want to improve the process.

"If I remember correctly, I personally hosted four roundtables between DEQ and the engineering community and either three or four between DCR and the engineering community. They were held in different parts of the state. The results were impressive. In DEQ's case, for example, they undertook a comprehensive review of their permitting process based on what they heard from engineers so that they could be more helpful. Within about six months or so, there was a marked increase in the percentage of applications that came in complete and thus there was a impressive improvement in the time it took DEQ to review the application and notify the applicant that it had been approved or denied. DCR had similarly good experiences … The roundtables were successful," he said.