June 25, 2013

'They're just not doing enforcement'

Whatever the cause, the stark decline in violations against commercial-scale developers and landowners under DEP Commissioner Patricia Aho likely pleases the real estate group that once hired her as a lobbyist.

By Colin Woodard cwoodard@pressherald.com
Staff Writer

Published June 16, 2013

click image to enlarge

Ironworkers position steel beams at a construction site on Commercial Street in Portland. The LePage administration says the sharp drop in the number of enforcement actions by the Department of Environmental Protection’s Land Division is due to improved compliance, but critics say some development-related laws are no longer vigorously enforced.

John Ewing / Staff Photographer

click image to enlarge

In the first two years of Gov. Paul LePage’s administration, the number of notices of violation issued by the DEP’s Land Division dropped by half compared to the last two years of the previous administration.

File photo by Andy Molloy/Kennebec Journal

Enforcement actions against commercial-scale developers, landowners, and builders have declined dramatically under Gov. Paul LePage.

Statistics acquired from the Department of Environmental Protection show that its Land Division -- which issues building and development permits -- issued 49 percent fewer violations in the first two years of the LePage administration than it had in the final two years of Gov. John Baldacci's administration.

The division issued 74 notices of violation in 2009 and 71 in 2010. Under LePage the number fell to 42 in 2011 and just 29 in 2012. They are typically issued when property owners, builders or developers violate state laws by cutting down lakeside trees, dumping fill in ponds and wetlands, damaging streams with heavy equipment or building structures without permits.

The number of consent agreements negotiated by the department -- the legally enforceable method by which significant violations are most often resolved -- have also fallen by nearly half. In the last two years of the Baldacci administration, 2009 and 2010, the land division recorded 26 and 23 agreements, respectively. Under LePage, the figures fell to 13 in 2011 and 14 last year.

The administration says the decline is due to improved compliance, but critics charge that the administration has stopped vigorously enforcing key laws affecting large developers and real estate interests while reducing enforcement of existing projects.

"The governor has put the fox in charge of the henhouse, and they've had an aggressive agenda to really emasculate the DEP," says attorney Steve Hinchman, who has been involved in several suits against the department alleging a failure to enforce laws regulating present and proposed developments. "They're rubber-stamping developments and they're just not doing enforcement."

DEP Commissioner Patricia Aho said that the downturn in the economy had reduced the amount of building and development activity over this period, resulting in a commensurate decline in enforcement. "We have not changed our direction of enforcement at all, but it begs the question of the size and complexity and amount of applications we are getting through the door," said Aho, who was the longtime lobbyist for the Maine Real Estate and Development Association, or MEREDA.

"Have you looked at how many applications we've had in? We're not getting a lot of Site Location and Development Act permits -- the large ones -- through the door, it's more permits by rules," a category for small projects, Aho asserted.

But a review of the department's own statistics on permitting applications does not support this explanation.

The number of Site Location Law permit applications -- those generally dealing with large developments -- has barely changed; there were 257 in 2009, 243 in 2010, 246 in 2011, and 235 in 2012. There was a similar trend in the number of applications received under the Natural Resources Protection Act: 507 in 2009, 586 in 2010, 532 in 2011, and 515 in 2012. Applications for smaller projects (under "permit by rule") saw a decline of just 10 percent between 2009-10 and 2011-12.

A department spokeswoman, Samantha DePoy-Warren, later said the decline was rather due to a contractor certification program "that teaches erosion and sediment control best practices" and has resulted "in less violations because contractors are better educated" and more aware of both the "environmental and economic value of compliance."

Aho declined subsequent interview requests.

The governor's communications director, Peter Steele, echoed both explanations when asked about it recently. "Compliance is up, so enforcement is down," he said. "Other reasons are that the land division work has included fewer large-scale permits and more permits by rules; a sluggish economy means fewer permits, and DEP is focusing more of its work toward compliance, rather than enforcement."

(Continued on page 2)

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