Maine Department of Environmental Protection

Permit By Rule

A permit by rule or "PBR" is a notification process; the applicant, for an activity which is allowed under this program , notifies the Maine Department of Environmental Protection of their plans to undertake the activity, and submits to the agency a set of general plans, pictures and other required documents with the assumption that they understand and will abide by the "Rules" put forward by the DEP for that activity in a Natural Protected Resource Area ( there is no need for a DEP permit of any kind if there is not a protected natural resource). The application is not necessarily scrutinized in detail by the DEP, nor is it necessarily looked at at all, but any application may be checked randomly, and this includes the possibility of a site inspection undertaken by staff to confirm what is contained in the permit. If the DEP does not review or, upon review, does not find any fault with the application, and has not notified the applicant of any problems or concerns with the application as submitted, the applicant can assume that the permit is accepted as submitted after two weeks time. There is, then, a two week period within which the DEP has to check the application. After two weeks if there is no action by DEP, it is automatically approved. The types of permits by rule include activities in sand dunes (Popham is almost completely sand dunes except the high areas of ridges on fort Baldwin and to the east of Silver Lake) among other types of activities. There is no notification to abutting property owners required, by DEP, though in some cases, other agencies may have to be notified. You can look at the complete set of Permit by Rule requirements through this link (this is a large "word" file of the rules for the Permit By Rule program);

http://www.maine.gov/sos/cec/rules/06/096/096c305.doc

The Problem With the Permit By Rule Process

The program was designed to cut down on the amount of paper work involved for permits which otherwise would be accepted by DEP and which supposedly have fairly straight forward rules involved. At a meeting with the Commissioner of the DEP we were told that only 3 per cent of the PBRs that they process have problems. They do not however "process" all of them, as I have explained, and the DEP may not examine the notification at all in any detail. It is paperwork, and if the DEP does not see any apparent reason to question the applicant (there is no cross referencing of projects even if they are on abutting properties) or cannot get to a site for inspection, the approval is automatic after two weeks. I have not been able at times, to get DEP staff to visit a site in less than six months time, way past that required for an inspection of a submitted PBR.

Since there is no notification requirement, we felt that there may be many more problems with these permits than the 3 percent we were informed of when meeting with the Commissioner of DEP. There may be any number of problems, be they purposeful misrepresentations which are meant to circumvent more stringent permitting requirements, or whether the applicant is unaware of the extent or type of protected resources present. Both may be common, but these types of problems may never be brought to anyone's attention because people are not necessarily aware that they are issued until after the required time that they must automatically be approved. People are also apt to trust our government entities are doing there jobs and so feel that if the DEP approved something, it must be okay. If a PBR is automatically approved with no review by DEP, there has been no real scrutiny of the permit/notification. I have twice had to get DEP to visit the sites I am most mentioned on this web site, the Johnson/Wyatt/Hill site and the Chester/Stimson PBRs because the permitting submitted was neither appropriate nor complete as to resources inventoried or the extent of permitting required for the eventual destruction of actual natural resources present. Both required Tier 1 wetland alteration permits and neither would have been required to get them if I had not been on the lookout for these PBRs.

We have been aware of people's plans to development and have had to ask once in EVERY two week cycle whether or not there are any permits in the DEP system. If you miss the time period in between when the permit is submitted and the two week period before it automatically becomes approved, there is no opportunity for comment.

I have asked to be made aware of any permits in my area, been assured that I would be notified of them, but have not always been kept informed. Different people have offered to do this, and probably have tried to keep up on it for me, but it is not required and even if you ask, staff is unable to become aware of what is there without physically looking at a notebook. So, if you don't have someone at the agency who is willing to look for you often, you have to go in and ask. I have been somewhat in their face at times and have asked to be kept informed, but ended up discovering permits on my own.

The reason is simple. I have seen misrepresentations of the presence and extent of protected natural resources. I have seen the DEP give prior approval to applicants based on the wrong types of permits being submitted for the activities involved. These permits are required by Federal law. I am not trying to make people jump through hoops, but the resources are being destroyed and they are my resources and they are your resources. No one should be allowed to misrepresent the extent of these resources if their intent is to destroy them for their own personal gain. These are common resources and no one person has a right to squander them for personal profit, though apparently neither the town of Phippsburg nor the DEP shares that opinion. I now have a leach field under water which is twenty feet from where that same water meets my property. The requirements of the PBR for sand dunes does not allow a project to increase flooding on another's property, yet this is happening to my property. The wetlands have been reduced to such an extent that there has been no appreciable protection afforded them as a common resource, this done by the DEP's tacit acceptance only of information provided by the applicant. Houses are being built on pressure treated lumber stilts in the middle of a wetland and water systems which provide my water supply to me and which are part of a larger lake when it is flooded. DEP and town Boards look at these projects when the water levels are not at their highest, ignore other signs of the extent of flooding (markings on trees, photos offered to them at hearings-see BOA Chester/Stimson Hearing where the Board refuses evidence of flooding) and when we have complained about issues of compliance with existing town and DEP approved ordinances, condemn us for "Having ours and not wanting anyone else to have theirs"(see page 15, BOA Chester/Stimson Hearing).

So, if you miss this PBR two week time span opportunity to find out what is going on, the applicant may submit an application for a building permit on the local level, though the phippsburg CEO does not require that an applicant for a building permit have completed DEP permitting. I have been told by the CEO of Phippsburg that he does not consider applications public knowledge until they are approved, and so there is no opportunity to comment on the permit at all, until after the complete permit is approved. There is no notification process at the local level unless there is some planning board, or Board of Appeals activity. There has been no such activity at Popham unless asked for by abutting property owners within the 30 day period following permitting, as was done in the Chester case and which has gone to court following a rather frustrating BOA hearing. This is a catch 22, where you have a limited amount of time to ask for a hearing but are never notified of the activity proposed. You must be searching regularly for any sign of proposed activity if you suspect it. Even when there has been Planning Board and Board of Appeals activity, there has been no notification of these meetings and actions by either Board for projects abutting my property. (See Johnson/Hill Variance Secret BOA activity) If you don't live here or you don't ask on a regular basis if there are any permits issued, you will only know about them when construction starts or after you return from the winter to find a new house in your backyard. It is much more difficult to undo a permit after the fact and any opportunity to comment has never been available to you, since the process has then, in essence, promised the applicant all permissions for the activity.

The only way to try to get these entities to take the appropriate responsibilities which we supposedly have entrusted to them, is to become aware as early in the process as possible, and often the only way to discover intentions before the town and DEP has permitted away any protections of these resources without objection, is to look at the first required permits that most people seek before they make any moves (see the Notices of Violation-Wyatt and Stimson). Since popham is almost completely sand dunes, a PBR for activity in the sand dunes is usually the first permit applied for. Because there is no longer any public participation in what has become a closed permitting process between the applicant and the DEP, and the DEP is not taking any real responsibility to protect our resources, we have had to turn to the courts, and often after the damage is done or in the face of developers who will do anything to anyone if opposed in their efforts. Not even a stay on construction signed by the Chief Justice of the Maine Supreme Court obtained on one project while the matter was being considered by the courts compelled the CEO of Phippsburg to halt construction as ordered until a period of two weeks had passed (see Stay of Construction-soon).

These are the third and fourth houses for these families and are basically commercial ventures built on spec, for rental or sales purposes by their own admission. This type of development represents threats direct and indirect and, with a pattern of density 2 to 4 times greater than the town allows anywhere else in the town, those threats are similarly multiplied. The DEP has lost its ability or desire to make the local authorities comply with their own DEP approved environmental ordinances, and so that agency which is supposed to look out for common resources is not doing its job.

The PBR process makes it easier for them to do this by not having to even look at what is presented to them. I have to wonder what their purpose is when they defer to local authority after condemning its ability to adequately assess the extent and scope of the protected resources under their jurisdiction (see letter to Board about their interpretation of the Phippsburg Shore land Zoning Ordinance-here- and letter from DEP Commissioner(asked to resign) deferring responsibility to local authority in response to our inquiries about flooded leach fields-soon).