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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.
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