DEP Wetlands Appeals Streamlining 

Testimony of Margaret Van Deusen of Charles River Watershed Association  

July 11, 2007

I am the Deputy Director and General Counsel for the Charles River Watershed Association. CRWA is a grass roots environmental organization founded in 1965 that has about 5000 members. Its mission is to protect the health beauty and accessibility of the Charles River and its watershed. I was also a member of the advisory committee convened by DEP on appeals streamlining. Except for the Massachusetts Association of Conservation Commissioners, CRWA was the only environmental organization that was represented on this committee, which was comprised of private lawyers who mainly represent developers and applicants seeking wetlands permits. When DEP's General Counsel Peg Stolfa called to ask me to participate on this committee, I was reluctant because of my concern that this type of committee would end up trying to eliminate meaningful involvement by citizens. And that is exactly what happened here.

While a number of committee members, me among them, believed that fixing the problems at the Division of Administrative Law Appeals causing the backlog of administrative appeals was critical and that a number of strong recommendations to accomplish this could be developed, we were told that our focus would be on wetland appeals and what DEP could change internally. But this committee didn't engage in any analysis of the wetland appeal cases that had been brought in the last several years, or in fact-finding with respect to outcomes or ways to speed up the process without sacrificing environmental protection. We did, however, learn that DEP's prescreening process was working well with about 60% of the cases resolved at this initial stage. 

There is no question that citizen involvement and input in environmental permitting decisions makes for better permits and stronger environmental protection. I am sure there is a tendency when you are a permit writer to wish citizens wouldn't take up your time, but the fact is that it is citizens, not those seeking the permits, that make DEP do its job better.  However, citizen involvement is only meaningful if there is a right of appeal -- an avenue to challenge the agency's determination or action. What troubles me most about the regulatory changes DEP is now proposing is the underlying supposition that citizen appeals are somehow frivolous or expendable.   In my experience, citizens do not lightly challenge DEP permitting decisions-to do so requires serious financial and time commitments.  Lawyers and experts do not come cheap. 

The Wetlands Protection Act (WPA), which is one of the oldest environmental statutes in MA, specifically incorporates participation by local townspeople when wetlands will be altered.  It provides 10 residents (and abutters) with the right to seek DEP review of an order of conditions or adverse resource area delineation by the conservation commission. And the Act refers to them as "parties."  DEP's regulations recognized this and explicitly provided a right to appeal for an adjudicatory hearing to 10 residents, abutters, applicants and conservation commissions.  It is bad policy in my opinion to now eliminate appeal rights for the group of persons that are most likely to challenge a DEP decision for failing to adequately protect wetland resources.  And regardless of whether it was intentional, DEP has made it much more difficult for an environmental group like to CRWA to challenge a DEP wetland decision. The elimination of ten resident appeals especially makes no sense when 10 residents have sought review by DEP of a conservation commission decision.  While we are glad to see that conservation commissions can still appeal, they cannot substitute for citizens.  Moreover, the reality is that conservation commissions have to seek selectmen approval to appeal and for town counsel to represent the commission. We are likely to see fewer appeals by conservation commissions in these tight fiscal times.     

What's the problem DEP is trying to solve by eliminating 10 resident appeals? These appeals are not responsible for the current log jam at DALA.  In 2006 there were only four 10-resident wetland appeals filed.  CRWA does not oppose eliminating inordinate delays in wetland cases. In our experience no one really benefits when appeals drag on for years.  But having an ironclad process that requires all wetland cases regardless of their complexity to be heard and finally decided by the Commissioner within 6 months, or 7 at the latest, is bound to result in errors. Needless to say, it also puts citizens and environmental groups at a severe disadvantage, regardless of whether they are appellants or intervenors.  They will simply be out of luck if the appeal occurs in the winter when snow is on the ground and a site visit by their expert is not useful.  What if an applicant changes his plans after testimony has been filed? Will DEP permit testimony to be supplemented? Lacking under the proposed changes is discretion when fairness requires to adjust filing deadlines, or to allow supplementation of testimony. 

While we agree that hearings should move along, we do not believe mandating one day hearings as the norm is wise or necessary.  In fact, the rigid adherence built into many of the new provisions is likely to give rise to whole new avenues of litigation.  

We oppose the provision that would allow DEP whose very decision is being challenged to "opt out" of further participation after filing a response unless the presiding officer requires otherwise.  This will not instill confidence in the integrity of the fact-finding process, or in DEP. 

Eliminating independent DALA appeals raises understandable concerns of bias by the DEP staff persons who preside over these hearing in-house and makes the decision process less transparent.  The proposed regulations also do not contain any standards for determining when an appeal should be transferred to DALA for hearing.  To avoid this haphazard and completely discretionary approach, some criteria should be developed to guide transfer decisions-major or complex cases should be transferred. Rules should be put in place to ensure that the DEP staff person presiding over the appeal does not receive informal ex parte communications from other staff -appeal outcomes need to based on what is in the record.  DEP reviewable decisions should also be accompanied by an explanatory summary containing the agency's reasons for the SOC or SORAD.     

While we agree that prompt site visits upon request and production by the applicant of all documents submitted to DEP are critical, the requirement in 310 CMR 10.05(j)(2)(d) to produce documents within 5 business days will be largely ineffective since the appeal must be filed within ten days of decision issuance.  We fear that gamesmanship rather than basic fairness will prevail here. Instead, DEP should be required to make its files available promptly (the same day it issues the reviewable decision) upon telephone request by anyone.  As DEP and anyone who has ever made a public records request well know a record request is not an effective substitute for an explicit requirement of prompt production of DEP documents.  Fair play requires this. 

The new regulations should contain effective notice provisions, both as to issuance of SOCs and SORADs and of the filing of an appeal. The public should be able to quickly access a DEP reviewable decision as well as learn of an appeal and its grounds given the very tight timeframes in the proposed regulations for intervention and for the filing of testimony.  DEP should commit to posting its determinations and any appeals therefrom immediately on its website and to notify all persons who attended the DEP site visit of the reviewable decision, or require the applicant to do so and to provide proof of such notification.  Notification of DEP site visits should be posted in the Environmental Monitor since one of the rationales for the changes being proposed is to avoid eleventh hour participation and input.    

The Preamble to the proposed changes states that DEP will evaluate the regulatory changes in one year and decide whether to extend them to other programs. Since the number of appeals moved in 6 months is only one measure and does not say anything about the fairness or reliability of the process nor the environmental protection achieved, CRWA urges DEP to devise meaningful metrics that will enable it to truly evaluate these changes. 

Thank you for consideration of these issues.