On June 19, the Joint Legislative Budget & Finance Committee released a performance evaluation of DEP’s Chapter 102 (Erosion and Sedimentation) and 105 (Dam Safety and Encroachment) Permit Programs requested by Senate Resolution 226 (Yudichak-D-Luzerne).
Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, said of the report, “I want to commend the staff of the Legislative Budget and Finance Committee for a thorough report on the deficiencies in critical environmental permitting programs administered by the Pennsylvania Department of Environmental Protection.
“While I acknowledge DEP has made strides to reform the permit process, the report clearly demonstrates more management improvements are needed to ensure DEP permits adequately protect the environment and are issued in an efficient, effective and timely manner.”
He said the performance evaluation identified several areas for improvement in the Department of Environmental Protection’s administration of the Erosion and Sediment Pollution Control (Chapter 102) and Water Obstruction and Encroachment (Chapter 105) programs.
Scope
Committee staff based their conclusions about the permit review process and most of the report’s statistics on a review of 440 paper permit files for permit applications where final decisions were made.
The report looked at information on expenditures and number of staff-- FTEs in the report-- for FY 2015-16, 2017-17 and 2017-18.
Detailed comments on the Committee’s draft report from DEP are included starting on page 155 of the report.
Meeting Permit Review Deadlines
According to the paper permit file reviews by Committee staff, the report found DEP met its permit review time deadlines for*--
-- 79 percent of Chapter 102 General Permits;
-- 59 percent of Chapter 102 Individual Permits;
-- 74 percent of Chapter 105 General Permits;
-- 95 percent of Chapter 105 General Permit-11; and
-- 30 percent of Chapter 105 Individual permits.
(*page 65)
Meeting Permit Review Deadline Guarantees
According to the paper permit file reviews by the Committee staff, the permits included in DEP’s Permit Decision Guarantee program met the deadline for*--
-- 70 percent for Chapter 102 Individual Permits;
-- 77 percent for Chapter 105 General Permit 5;
-- 94 percent for Chapter 105 General Permit 11; and
-- 41 percent for Chapter 105 Individual Permits.
(*page 85)
Applicant Response To Incomplete Notifications
According to the paper permit file reviews by the Committee staff, this is how many days it took applicants to respond to a notification a permit application was incomplete*--
-- 31 days for Chapter 102 General Permit;
-- 25 days for Chapter 102 Individual Permit;
-- 10 days for Chapter 105 General Permit; and
-- 33 days for Chapter 105 Individual Permits.
(*page 74)
An incomplete application notification is sent at the beginning of the review process and before a technical review can be completely started.
Applicant Response To Deficiency Notices
According to the paper permit file reviews by Committee staff, this is how many calendar days it took applicants to respond to a notice of an application deficiency*--
-- 26 days for Chapter 102 General Permit;
-- 55 days for Chapter 102 Individual Permit;
-- 24 days for Chapter 105 General Permit; and
-- 33 days for Chapter 105 Individual Permit.
(*page 75)
This notice is sent after the initial technical review and the number of days can be in addition to an incomplete application notice.
For example, a Chapter 102 General permit applicant could have taken 57 calendar days to respond to incomplete and inadequate notices-- 31 for incomplete permit application and 26 for a technical response.
Data Deficiencies
The report found DEP did not systematically collect, compile, analyze and report data to measure the performance of DEP or county conservation districts on the permitting programs and has not documented whether the programs are protecting the environment.
Stakeholder Concerns
In its summary of concerns raised by stakeholders involved in the permit programs, the report said three issues were raised most frequently--
-- Inconsistencies in the interpretation of regulations and requirements of the permitting programs, between and among the regional offices and the conservation districts;
-- The length of time for permit applications to be reviewed and disposed; and
-- A lack of communication from the DEP Central Office to the DEP regional offices, CCDs, and the regulated community.
DEP Permit Initiatives
The report acknowledged DEP has undertaken several initiatives to address concerns about the permitting programs, 3 of which were mentioned in the report--
-- An ePermitting program to improve the speed and accuracy of permit reviews, provide more effective tracking and transparency for permits moving through the system and to provide better data for managing the permit review system overall;
-- DEP has replaced the Money-Back Guarantee Program with the Permit Decision Guarantee Program; and
-- Implemented the Regional Project Coordination Office for complex, multi-county permit applications. The report noted it took 22 months to get up and running within the Civil Service system and with DEP looking for staff with the right skill sets.
Fee Report Recommended
Among its recommendations, the report noted DEP has not sought an increase in fees or supplement funding for either the 102 or 105 programs and recommended DEP complete the required fee reports that may be used to request an increase in fees to get more resources.
Limitations Of Paper File Reviews
The report based its conclusions about permit application completeness and permit reviews on its staff review of 440 paper permit files made available at random. They did not actually talk to staff about the individual permits reviewed to gain more insight on what was going on with the applications.
For example, Committee staff said if there wasn’t a piece of paper in the file showing whether something in the application was incomplete or technically deficient it was assumed to be complete and not deficient.
Committee staff did acknowledge that some application files they reviewed involved going through multiple boxes of documents.
In contrast to the Committee paper file review, the Cumberland County Conservation District provided the Committee and testified before the House Environmental Resources and Energy Committee that more than half of the erosion and sedimentation control/NDES plan applications submitted to the district are incomplete and consultants (almost all registered engineers) take an AVERAGE of 33 business days to respond to technical deficiencies-- more than 6 calendar weeks.
Vincent McCollum, E&S Staff Supervisor for the District, said this analysis was based on a review of the 112 General Permit and NPDES applications the District received in 2017-18.
McCollum said, “Consultants and engineers often do not provide plans and drawings that contain sufficient information to perform a technical review of the application.”
This kind of first-hand information was not reflected in the report.
FTEs & Expenditures
The report did a correlation analysis which looked at the number of staff-- FTEs-- and expenditures devoted to the review of applications where only final permit decisions were made in FY 2015-16, 2017-17 and 2017-18.
They found a negative correlation for DEP, that is the number of FTEs and expenditures applied to the program did not, in their view, correlate to the number of final permit decisions made. They found a positive correlation for conservation districts.
A number of circumstances affect these results for DEP--
-- The number of staff DEP devoted to the program changed by only about 4 out of 110 over the 3 years included in the program, according to the report;
-- The analysis did not look at the entire workload of the staff, or even the entire permit review workload of staff. Of most importance was the fact that staff do not just have the permit applications the report counted as completed on their desk during the year. DEP staff have new applications coming in the door all the time, so while a staff person may have completed only 10 applications, they may actually have 25 on their desk in various stages of review or waiting for information.
-- Most importantly, the report did not look at or count the fact these same staff do not just review permit applications, they also do enforcement, investigate complaints, do inspections of permit sites and provide technical support on permit reviews to conservation districts. This aspect of their workload can fluctuate considerably depending on the issues being handled by staff over time. While conservation districts do many of the same tasks in these programs as DEP staff do, they do not do all of them which again accounts for the differences.
The report, however, is correct in saying DEP does not “systematically collect, compile, analyze, and report data” that many believe is needed to manage the programs in a perfect world.
DEP does have information from eFACTS it uses to help manage permit workload and identify problems, along with the upcoming ePermitting system and other, newer software tools that should increase this management capacity significantly.
But DEP has had to live within the resources it is given and DEP has put together whatever resources and staff time it could to develop ePermitting and the other permit review improvement initiatives all on top of doing its day-to-day job.
The Committee report did not look at what these data collection and analysis improvements might cost and the funds have not been appropriated by the General Assembly to support these programs or the efficiency improvements.
Is The Program Working?
The report also concludes DEP has no mechanisms in place to collect, compile, analyze, and report data that may be used to measure environmental effects for all types of permits in both programs.
DEP does evaluate overall water quality in the state’s rivers and streams as part of its Water Quality Assessment Program. The latest report was issued in April which shows 40 percent of the states streams do not meet water quality standards, so obviously more restrictive programs and more restoration programs are needed.
Again, in a perfect world, with all the resources it needed at its disposal, DEP certainly could determine specifically how effective the Chapter 102 and 105 permit, inspection and compliance programs were in controlling pollution in every watershed in the state.
However, the funds have not been appropriated by the General Assembly to do the kind of analysis described in the report and the Committee report did not provide an estimate of what these kinds of analyses may cost.
DEP did note they are working with the Independent Fiscal Office to develop performance measures for these and other programs as part of the Performance Budgeting Program.
Click Here for a copy of the full report. Click Here for an executive summary.
Action Plan
DEP Secretary Patrick McDonnell told the Committee his agency will develop a plan to respond to the concerns expressed in the report.
Budget Note
Over the last decade, the General Assembly and Governors have cut DEP’s General Fund appropriation by 40 percent and staff by nearly 30 percent. The only way for DEP to keep the financial integrity of its programs was to increase permit review fees.
Now, no longer content to just cut appropriations, Republicans on the House Environmental Resources and Energy Committee in recent weeks have urged the Independent Regulatory Review Commission to disapprove of DEP permit fee increases for the Air Quality Program and Water Quality/NPDES permits.
Republicans in the Senate joined in opposing the Water Quality/NPDES permit fee increases.
The objective seems to be to make these programs ineffective by starving them of funding.
Permit Review "Reforms"
The smart thing for the General Assembly to do would be to financially support ePermitting and other permit review efficiencies now under way, but they are looking in a different direction.
Many want to create a third-party permit review program supervised by DEP for its critical Chapter 102 (erosion and sedimentation) and 105 (dam safety and encroachments) permits.
Every third-party permit review program considered by the Senate and House over the last two years had fatal flaws-- like letting licensed land surveyors review and approve hazardous waste facility permits and having no conflict of interest provisions.
But just adopting a third party permit review program without doing the reengineering of the permit programs themselves like is happening now through the ePermitting process isn’t making real change. Someone else is just carrying the bucket with holes in it.
But just adopting a third party permit review program without doing the reengineering of the permit programs themselves like is happening now through the ePermitting process isn’t making real change. Someone else is just carrying the bucket with holes in it.
This time, some Senators said who passed the last one, this time it will be different.
At a June 5 Senate hearing, DEP again laid out very real and fundamental concerns about third party permitting that must be addressed. DEP did it in February 2017 in the Senate too.
Not the least of those issues is the need for… you guessed it... more funding to properly manage the program like it should be, including possibly a special licensing program that was suggested at the Senate hearing.
A quote comes to mind in this situation often attributed, some say mistakenly, to Winston Churchill, “You can always count on the Americans to do the right thing, after they have exhausted all the other possibilities.”
The question is, how long will it take the General Assembly and the Governor to exhaust all other possibilities?
Sen. Bob Mensch (R-Montgomery) serves as Chair of the Committee and can be contacted by calling 717-787-3110 or send email to: bmensch@pasen.gov.
(Written by David E. Hess, former Secretary of DEP. Comments should be sent to PaEnviroDigest@gmail.com.)
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