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."

"The Governor is proud of DEP's strong enforcement and has worked hard to assure continued enforcement of all Maine's natural resource and environmental laws," Steele added.

Aho has been commissioner for most of the period in question, and deputy commissioner before that. LePage's first DEP commissioner, Darryl Brown, had been a development consultant and was forced to step down in April 2011 after the Attorney General's Office determined his past work created conflicts of interest that disqualified him from holding the office. Aho became acting commissioner in June 2011, and permanent commissioner in October.

Teco Brown, who was appointed by Darryl Brown and headed the Land and Water Bureau for the first half of 2011, also didn't have an explanation for the change in enforcement, which appears to have started while he was managing the bureau. But he said there was considerable pressure on the land division from regulated business interests.

"The pressures for change in the land side of things were the greatest," he said. "During the campaign for governor, there was quite a bit of verbalization about the fact the land bureau takes too long to issue permits and that just engendered a great amount of -- I guess you might call it hatred of the land bureau."

Teco Brown said when he joined the department in early 2011, he and Darryl Brown shared a belief in improving efficiencies in permitting, up "to that fine edge where we were improving but not compromising." Brown, he said, was no radical. "He's a soil scientist and an environmentalist, and was not one to take the permitting process and throw it down the drain. He wanted to make it right."

"I did feel a change when Darryl left and Aho came in," he added, "but I didn't have time to figure out where that change was going."

Whatever the cause, the reduction in enforcement is likely to have pleased Aho's former lobbying client.

She represented the Maine Real Estate & Development Association from 2007 to early 2011, opposing the tightening of laws and regulations on site location, big box stores, the cutting of shoreland trees, lead paint remediation and construction near vernal pools. (The group represents commercial-scale real estate developers, owners and construction and building firms.) After the LePage administration took office, MEREDA successfully championed the loosening of many of these same measures, especially those related to site location and vernal pools.

LePage has sought to rein in a number of development-related laws and regulations. Preti Flaherty lobbying chief Ann Robinson -- who was co-chairwoman of LePage's transition team and a regulatory reform adviser thereafter -- in early 2011 compiled a color-coded regulatory reform binder for LePage's staff intended as an easy reference tool and checklist.

The binder -- viewed through a public records request -- includes directives for the governor to issue compelling the DEP to weaken a number of development-related enforcement activities. DEP staff members were to be instructed to "discontinue expansions of enforcement" on rivers, streams and brooks, "investigate ways to reduce compensation and mitigation fees related to project development impacts," review culvert installation regulations to ensure they "are reasonable." Staff were also to abandon proposed rules on culverts, and "scenic impact" and "community character" standards.

It's not clear how many of these actions were undertaken or if some of them may have contributed to the decline in enforcement numbers, and department spokeswoman DePoy-Warren declined to comment.

Several large developers declined to comment on if and how enforcement had changed at the DEP. But an official at MEREDA said the way DEP handled enforcement had changed for the better from its point of view. "Anecdotally from the enforcement front there has been a little more flexibility," said attorney Gary Vogel, chairman of MEREDA's legislative committee. "At the DEP there really has been some significant changes just in the attitudes of the personnel and the way they deal with the development community."

Vogel ascribed some of the change in attitude to the fact that the economy has been poor for several years. "I've found that when we get to the peak of the business cycle with a lot of development going on, that's when you start to see a lot of pushback ... and at the other end of the business cycle, there's a lot less of that because people understand how important development is when there's less to go around."

Hinchman, by contrast, thinks part of the answer lies in personnel changes. The department has seen an exodus of experienced staff under LePage. (Read the sidebar, Page A8.)

"They've chased out all the people who used to ask the hard questions when a project came in the door," Hinchman asserts. "The ones who turned a blind eye, they're the ones who got promoted." 

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

 

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