How to Negotiate Permits that Ensure Project Success

Negotiating project-appropriate conditions for your environmental permits will help avoid costly consequences, such as construction delays, tied-up bonding capacity, and extraneous years of site mitigation, monitoring and maintenance.

Mike Sweesy, Dudek principal, offers five tips on how to tailor a final permit negotiation strategy that is mutually satisfactory to regulatory agencies and your project’s schedule and budget.

Identify issues and solutions up front. Regulatory documents include a lot of boilerplate language that may be inconsistent with the specifics of your project (e.g., a species identified in the permit isn’t located on the project site). An experienced permitting specialist and the project’s technical team (engineers, construction managers, environmental experts) should conduct a permit review to identify unnecessary obstacles to your project and develop work-around solutions, opening the way to effective negotiations with the resource agencies.

Negotiate permit conditions.Permits frequently have considerations that are both short-term (for construction) and long-term (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 during nesting season. However, crafting alternative language may allow construction to proceed with a biological monitor on site when nesting occurs to observe if construction has an impact on nesting bird behavior; or allow construction during breeding season if pre-construction surveys do not reveal any nesting species. Negotiating appropriate temporary buffers may be sufficient to allow construction to continue despite on-site nesting, if construction occurs away from these buffers until nesting has concluded.

Outline realistic criteria. Project impact and mitigation must be proportional, so mitigate only for the resources you impact. Successful compensatory mitigation aligns project impacts with mitigation design. If your project impacts a low-quality channel, don’t agree to mitigate for a fully functional wetland.

It is also important that performance criteria realistically reflect what can be achieved on a mitigation site. For example, commonly seen boilerplate language requires not more than 5% non-native plant cover and 90% native plants. This non-native requirement is often unrealistically low for many California sites that are surrounded by lands choked with non-native species.

Promising to “fit a round peg into a square hole” is a costly mistake commonly made when projects are too eager to achieve resource agency-stipulated performance criteria and approval, Sweesy said. Careful observation of the site and adjacent areas by a qualified habitat restoration specialist will result in a successful plan that can be supported and sustained at that mitigation site.

Clearly define mitigation requirements. Poorly worded mitigation requirements can become a significant barrier to achieving sign-off on mitigation projects. Vague language requires interpretation to be applied at least 5 years after the permit is written, potentially by regulatory staff that was not involved in writing the original permit language. The more specific the language, the less potential there is for future disagreements about achievement of mitigation goals and performance standards.

Measure habitat function and value appropriately. Measuring existing and proposed habitat functions and values is complex, however the Hybrid Functional Analysis (HFA) method effectively measures functions and values within discrete wetland mitigation sites. HFA is preferable to the California Rapid Assessment Method, which is better suited for assessing a wetlands function along a stream reach. The habitat function data collected for a specific impact area will be relied on years later to demonstrate that full compensatory mitigation has been achieved, so 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.

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For more information, contact Mike Sweesy, RLA, habitat restoration specialist, at msweesy@dudek.com or 760.479.4253.