DEP Proposes Substantive Changes to Administrative Rules

The Maine Department of Environmental Protection (DEP) has proposed sweeping and substantive changes to its Chapter 2 rules, which govern permit applications, appeals, permit modifications and suspensions, and other administrative matters directly relevant to obtaining development permits in Maine. The Board of Environmental Protection (BEP) will hold a public hearing on the proposed changes on January 18 and will accept written comments until January 29, 2024.

These proposals were triggered in part by legislative changes, some of which are subject to further revision during this legislative session, and in part by an effort at the DEP to address inefficiencies in its current rules. However, the expanded requirements may, in fact, have the opposite result.

Although the DEP’s changes affect almost every provision in Chapter 2, a summary of which is linked here, the most notable changes the DEP proposes are:

• Adjusting requirements for the BEP to take jurisdiction over a project application, including a new provision allowing the Commissioner to request that the BEP assume jurisdiction over an application at any point during the processing of that application. This will make it easier for project opponents to increase costs and delays by pushing the BEP to take jurisdiction over more projects.
• Expanding the Department’s consideration of the threshold issue of Title, Right or Interest (TRI), including a burden shift to the applicant where TRI is challenged by opponents at any time during the application processing period, and a requirement that TRI be demonstrated across the life of the project (including through decommissioning).
• Extending DEP processing times on various submissions including for scheduling pre-application meetings (now 60 days) and pre-submission meetings (now 45 days), as well as permit by rule decisions (now 20 working days for most permits by rule), among others.
• Clarifying that a “Project” means all portions of an activity for which Department approval is required.
• Expanding notice and public meeting requirements.
• Changing BEP appeal procedures, including additional circumstances under which the BEP Chair may dismiss an appeal.
• Clarifying that the BEP can modify a license while a judicial appeal is pending.
• Adding a mechanism for voluntary recission of a permit.
• Adding rules governing Administrative Consent Agreements, which will require BEP approval.

If you have questions about these proposed changes and how they may impact your project, or would like assistance drafting comments on the proposed rulemaking prior to the January 29 deadline, please contact Lisa Gilbreath (207.791.1397), Brian Rayback (207.791.1188), or Georgia Bolduc (207.791.1249).