Effectively Negotiating Environmental Permits

Michael Sweesy, RLA, leads Dudek’s native habitat restoration practice and Sherri Miller manages the firm’s biology practice. They have extensive experience negotiating environmental permits with resource agencies on behalf of private and public clients with development projects in California. The following are their insights on effective negotiating.

Negotiating favorable, “project appropriate” conditions for your environmental permits will help avoid costly consequences, such as construction delays, tied-up bonding capacity, and needless years of extra site mitigation, monitoring and maintenance. To avoid unnecessary costs, we advise our clients to carefully review the draft permit sent from the agencies and to carefully develop a final permit negotiation strategy.

The following tips and examples will help you tailor a final permit negotiation strategy that is mutually satisfactory to regulatory agencies and your project’s schedule and budget.

IDENTIFY ISSUES AND SOLUTIONS IN INITIAL REVIEW. Regulatory documents include a lot of boilerplate language that is negotiable with agency staff. Permit boilerplate will likely be inconsistent with the specifics of your project (e.g., a species identified in the permit isn’t located on the project site) or conditions that can create roadblocks during construction. A permit review led by an experienced permitting specialist and supported by the project’s technical team (engineers, construction managers, environmental experts) will likely identify unnecessary obstacles to your project and develop work-around solutions, opening the way to effective negotiations with the resource agencies.

SUCCESSFUL PROJECTS REQUIRE REALISTIC CRITERIA TO PRECLUDE FAILURE. Projectimpact and mitigation must be proportional, so mitigate only for the resources you impact. Successful compensatory mitigation aligns project impacts with mitigation design. If impacting a low-quality channel, don’t agree to mitigate for a fully functional wetland.

Further, negotiate performance criteria for a mitigation site that realistically reflects what can be achieved. Careful observation of the mitigation site and adjacent areas by a qualified habitat restoration specialist will result in a successful plan of the type and quality of habitat that can be supported and sustained at that mitigation site. Naively promising to “fit a round peg into a square hole” is a costly mistake frequently made by inexperienced biologists too eager to achieve resource agency-stipulated performance criteria and approval.

For example, commonly seen boilerplate language requires not more than 5 percent non-native plant cover and 90 percent native plants. The non-native requirement is often unrealistically low for many California sites that are surrounded by lands choked with non-native species.

Resource agencies are interested in establishing meaningful success criteria. They need to be satisfied that each mitigation proposal provides appropriate compensation under their regulations, and their staffs have discretion to determine what is appropriate within their guidelines.

Successful negotiations with resource agencies are built around an approach emphasizing awareness, in effect, relaying to the agency, “This is the mitigation we are proposing and why we think it is appropriate based on the project impact. We believe this approach is appropriate even though it is different than the boilerplate terms.”

MEASURE WETLANDS FUNCTIONS AND VALUES APPROPRIATELY. Measuring existing and proposed habitat functions and values is complex. The U.S. Army Corps of Engineers promotes the California Rapid Assessment Methodology (CRAM). While CRAM is good at assessing a wetland’s function along a stream reach, it does not do well with isolated wetland mitigation sites. A better approach is provided by one of many Hybrid Functional Analysis (HFA) methodologies more focused on functions and values within a discrete area.

An appropriate measure of existing functions and values for a specific impact area will be relied on years later to demonstrate that full compensatory mitigation has been achieved. If measured appropriately up front, strong arguments can later be made to expedite final sign-off of a mitigation site even if performance criteria have not been fully achieved.

NEGOTIATE PRACTICAL MINIMIZATION AND AVOIDANCE MEASURES FOR CONSTRUCTION. Permits frequently have short-term conditions (for construction) and long-term conditions (for operation and mitigation). An important short-term consideration is to identify opportunities to renegotiate boilerplate conditions that could slow down or delay construction to provide flexibility so building can move forward unimpeded.

Boilerplate language, for example, may prohibit construction activities during nesting season. We’ve successfully recommended alternative language that allows construction to proceed with a biological monitor on site when nesting occurs to observe if construction has an impact on nesting bird behavior. We’ve renegotiated permits that initially prohibit construction from starting during breeding season but allow construction to start if pre-construction surveys do not reveal any nesting species. Even with on-site nesting, appropriate temporary buffers may be sufficient to allow construction to continue away from these buffers until nesting has concluded.

IDENTIFY APPROPRIATE MITIGATION OPTIONS. More options than ever before are available for compensatory mitigation to offset waters/wetlands impacts. Choosing the appropriate mitigation vehicle provides flexibility and efficiency for public agencies and private applicants. Mitigation banks are becoming more common throughout California. Bank credits transfer the mitigation responsibility to the banker, relieving the project proponent of this long term obligation. In-lieu fee programs offer similar benefits to those in need of compensatory mitigation and often in watersheds where no banks are present. If the applicant owns land suitable for mitigation, Advance Permittee-Responsible Mitigation offers the benefits of a bank without the burdensome approval process. Choosing the right option can save money and expedite project schedule.

The key is combining project-specific conditions with a creative understanding of what is possible and acceptable for the resource agencies to meet their objectives.