RESPONDING TO PERMIT APPLICATIONS

Citizens have a very important role to play in permitted activities because the permitting process often involves gathering input from citizens on the proposed project. Citizens who are well-acquainted with the land on which a project is proposed can help regulatory staff to understand the potential impacts. The public input process also allows public priorities such as clean water, local recreation, historic preservation, etc. to be voiced so that they can be considered in the decision-making process.

An important element of all wetland regulations is a concept referred to as "sequencing." U.S. federal law, as well as the state laws implemented across the Great Lakes Basin, require project proponents to follow a sequence that involves first avoiding impacts to wetlands, then minimizing those that are deemed unavoidable, and then mitigating those that are eventually allowed.

Application of the "avoid, minimize, and mitigate" sequence is predicated on the assumption that unless a project is water or wetland dependent, then less damaging alternatives exist. Regulations require that a permit shall not be issued if a less damaging "practicable" alternative exists. The applicant has the burden of proof regarding analysis of less damaging alternatives. Other considerations include determinations on whether the project is in the public interest and whether the project will have unacceptable impacts to aquatic resources. There are many factors that must be weighed in making these determinations, including economics, aesthetics, historical values, fish and wildlife values, flood damage prevention, navigation, land use impacts, recreation, water quality, endangered species impacts, etc. Citizens can play an important role in providing information to determine impacts, the public interest, and possible alternatives. Following is a step-by-step procedure that can help you to make good use of permit notices.

1) Receive an announcement about the permit application.

It may be that you hear about a proposed project in your area through the word on the street or in the local news. A more reliable way to be made aware of potential wetland activities is to get your address added to a mailing list that is used to announce such permit applications. Certain types of permits require a public comment period, and both standard and electronic mail are used to announce these so that citizens can respond. The mailing lists that each state offers for this purpose and how to get added to them are provided at the bottom of each state regulatory summary.

The U.S. Army Corps of Engineers is divided into regulatory district offices, five of which have jurisdiction in the Great Lakes basin. For a list of the Corps’ district offices and their contact information, see http://www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm or http://www.usace.army.mil.

2) Read and understand the public notice.

The public notices can appear cryptic to the untrained eye. Read these documents carefully, and you will likely find the information that you need. The basic information that will enable you to formulate your opinion on a proposed permit is the who, what, when, where, and why of a project:

a. Who is applying for the permit, and what is the application’s file number? You may have questions for the applicant, and you will need to use the application file number when corresponding with the agency.

b. Why does the applicant want to impact wetlands, what is the project purpose? You will use this information to determine both whether the project has to be located in the wetland and whether the project is in the public interest.

c. What does the applicant want to do? The basic nature of the project is essential to determining whether the activity is acceptable.

d. When will the permitting agency stop receiving public comments?

e. Where is the project located? The location will enable you to visit the site, to speak with adjacent landowners, and to determine how the activity will impact wetlands.

3) Gather information.

The notice should state very clearly what is intended to be done in the wetland, how this will impact the wetland, and what the applicant has done in order to avoid, minimize, and replace lost wetland functions. If any of these or other important pieces of information is missing, contact either the applicant or the agency office that posted the notice. After you have a complete understanding of the permit application, you need to use your own and other people’s understanding of wetlands, their values, and the impacts of the proposed project. The more specific your knowledge of the site and its surroundings, the better. An often overlooked source of information is the agency staff member who will be processing the application. If you have questions about the permit application, or the regulatory standards, contact the agency itself.

4) Evaluate the proposed project in light of the regulatory standards.

The agency that has to review the permit application has very specific criteria that guide them in their decisions. Know what those criteria are and examine the proposed project with respect to them. In the case of 404 permits in the United States, the Corps has provided a very clear guidance to evaluators as to what questions they should consider regarding the permit, such as whether there is an alternative, non wetland location for the project, how the project may impact the biological and hydrological characteristics of the site, whether the project will have a negative impact on the recreational and aesthetic values of the site, and whether the applicant will replace any lost wetland function. This guidance can be found in Appendix F of Michigan Wetlands: Yours to Protect, by the Tip of the Mitt Watershed Council, and on-line at www.michiganwetlands.org.

Apart from understanding the basic project criteria, remember to ask whether any aspect of the project will cause the project to fall under the jurisdiction of some other law or agency. For example, the presence of a threatened or endangered species on the site will cause a project in either Canada or the U.S. to require consideration under an endangered species law.

5) Provide your comments to the appropriate agency.

If your evaluation of the project leads you to believe that the project should not be permitted or that the permit should include certain modifications, then it is time to contact the agency that circulated the notice. The standard, and usually most appropriate, type of response is a letter to the agency.

Your letter should be concise and factual, focusing on the specifics pertaining to the project. List at the top of the letter the number that identifies the permit application. State very clearly your position regarding the permit, each separate element of the application that causes concern, and the criteria that are likely to be violated by the project. Before you submit your letter, have a colleague review it for clarity and accuracy. Typically, the agency will send a copy of your letter to the applicant.

If you are asking other individuals to comment on the same project, keep in mind these guidelines:

a. Written correspondence is more powerful than telephone calls, since it is, by default, recorded.

b. A customized letter is likely to be more effective than a form letter, since it (a) may provide more cumulative information and (b) will convey more urgency regarding the project.

If you find it important to bring the community together to discuss the project, then you may request in your letter a public hearing. Public hearings can serve to alert more people who will be affected or who will have an opinion on a project, to educate the community, and to provide a forum for explaining ideas that are difficult or complex.

Remember, though, that a public hearing is an expense to the agency, whose resources are limited; avoid calling for a public hearing if the event will not serve any of these purposes.

Be well-prepared before attempting to speak at a public hearing. Write down your entire statement to be placed on public record, and summarize the statement during your allotted time.

It is important to understand that the problems that a community may have with a project may be unrelated to wetland regulations. In such a case, you may choose to call for and coordinate a public meeting. This provides an opportunity for the citizens to discuss all issues related to the project in addition to wetland impacts. In order for a public meeting to be effective, all stakeholders in the project should be invited and the meeting should be run by a competent and considerate facilitator.