The permitting process: Part 1

This two-part series educates producers on avoiding pitfalls and adopting best practices in their pursuit of permits. Read “The permitting process: Part 2” here.

Maneuvering around the potential pitfalls in the permitting process may be likened to playing a fierce round of dodge ball. It takes gamesmanship, mental toughness, negotiation skills, preparation, persistence, and help from a talented team of players. Many are stricken by hit after hit along the way, and, in the end, few are left standing. However, the strong do survive and permits are won. Attaining the hard-fought-for permit is the result of avoiding pitfalls and adopting best practices.

Assemble permitting team

A common pitfall in the permitting process is failing to assemble a strong, knowledgeable and experienced permitting team – a complete and competent team that oversees the legal, technical, environmental and political approaches regarding the project, the process, the agencies, the government officials and the community. While large producers may have in-house teams that cover each of these areas, most producers do not have the resources to handle the entire process effectively.

“If there is an operation that knows the local politics, we will encourage them to embrace that; however, having an extended team of experts is an important aspect,” says David Brown, Benchmark Resources president.

Brown says it’s more than just about having a consultant delivering a report – it’s the operating assumptions and knowledge needed to analyze the results; and to determine if and how an operation should modify the project parameters to gain approvals.

“It’s more than knowing the law and regulations as they read, but also knowing where the gray or negotiable areas are,” Brown says. “Working with consultants that have a broad range of experience helps the producer to understand the interrelations between all aspects of the project. Decisions should not be made on just the primary issues that are important to the producer (such as production capacity), without an understanding of the impact that other issues have upon those affected by the project,” he says.

“Regulatory agencies typically read statutes as black and white, or interpret the meaning in a way that has always been done, but, in truth, there is some latitude in interpretation,” says Bruce Steubing, Benchmark Resources vice president. “Our job is to know the regulations better than the agency staff, so we can go in and tell them what we want to give them and how that complies with the regulations,” he says.

Steubing goes on to explain that his team must also understand all the process and timeline requirements of the agency. “We cannot assume that they will take our project through and manage it all the way, so we are continually reminding and confirming that the agency staff has given all the notifications under the time period required by the statutes. At the same time, we’re managing all the public notifications and reviews before the decision makers have the project in front of them,” he says.

According to Christopher Hopkins, senior vice president of The Saint Consulting Group, the permitting team should include an expert in uncovering the political ramifications of the particular permitting process.

“It’s 25 percent science, and 75 percent politics. You can have every study in order, but if you don’t have the politics, you’re not going to win,” says Hopkins, whose firm often assists producers with completing political due diligence prior to the application being submitted.

“We completely assess the politics of a community – what the regulations are, who sits on what board and who influences who,” he says. When producers tell Hopkins that they have been in the community for years and know the players better that an outside consultant, Hopkins says that officials are often telling the producer what they want to hear.

“We can get information that the client can’t get – the unfiltered opinions. We can find out who the opposition is, why they will oppose the project, so that we can address it before they make their complaints – and can diffuse the situation. You need to give ‘political cover’ to the people you want to approve your project,” Hopkins says.

Benchmark’s Brown and Steubing agree that having the political support is essential.

“You are going to get litigated most of the time, so you have to know what support is on your side before you file your application,” Steubing says. “On one project, we had a supervisor who told us he wasn’t going to vote for the project.

“Two hearings later, that very person was the one who made the motion to approve the project – as we had never stopped working with him and addressing his legitimate concerns. Support can change at any time. Someone who is identified as the opposition is the first person you need to talk with,” he says.

Research, define the project

Another pitfall is poor planning and failing to fully research and define an expansion project. A well-defined project leads to well-defined projections as to key issues such as truck traffic, noise, air quality and more. Steubing says that if a project isn’t properly defined upfront, one cannot determine what the actual non-negotiable issues are, forcing the producer to revise an approach even as they get into the public process.

“That is dangerous from a cost standpoint, and it forces the environmental consultants and the regulatory agencies to deal with a project that is essentially a moving target. It also leaves the door open for the opposition to potentially define the project instead – and the producer is forced to go on the defensive right from the start,” he says.

Steubing says that his firm works with producers to define objectives. How much in reserves do they currently have? How many tons per year do they need? What are the true non-negotiable requirements? How much funding does the operator have? Do they want to stretch the project out?
“It may take a couple of months to a year to properly define a project, and once that is done, we can then assemble the permitting team based upon the parameters,” Steubing says.

Set realistic expectations for time and costs

Address residential concerns early in the process to get your
site up and running. Photo: istock.com/ sam_eder

Permitting timelines and regulations vary widely by state and by local jurisdictions. Time ranges can vary from as little as a matter of months (in a few states) to more than seven to 10 years in states such as California. Typically, permitting requires at least two to five years. One California-based producer who had just completed a more-than-a-decade-long permitting process was quoted as saying, “Many companies just simply give up. An operation should have plenty of money and reserves upon applying for a permit, as it’s going to take a long time.”

According to Brown, the variations in timeframes are typically based upon the agencies one is dealing with, the environmental requirements, and what type of permit approval one is seeking. Litigation is also factored into the timeframe. He also notes that environmental evaluations should be done upfront, before the filing of the application, so that an environmentally friendly project can be presented to the public.

“Obviously, the timeframe for a greenfield site is going to be substantially different than an amendment to an existing operation. The timeframe is directly proportional to the entitlement one is seeking. Permitting doesn’t have to exceed typical timeframes if one knows what the project is and what it isn’t,” Brown says.

Other issues that affect timeframes and costs are any new legal issues that may arise; changing environmental regulations; changing players within an agency staff; the amount of public outreach needed; and the level of education and negotiation required to gain approvals from agency staffers and all other decision makers.

“We have been successful with producers because they are comfortable that we are going to get them to the endgame – but they have to be realistic enough and flexible enough to know that they may not get everything they want, when they want it – and they may have to give a little here and there,” Brown says.

Identify potential obstacles

Hopkins says that before filing an application and spending thousands of dollars on testing and environmental studies, find out who is likely to oppose the project, who is likely to support it, and who the closest neighbors are and what they think.

“It is best to meet with neighbors individually to explain the benefits of the project. The last thing an operator wants to do is introduce a project to skeptical neighbors in a group setting that puts reasonable people in contact with rabid opponents before there’s been a chance to make a case for the project,” Hopkins says.

When meeting with neighbors, he says, it is important to learn if there are anti-development groups in town that will automatically oppose your project. With this information, an operator can build a plan to counter potential opponents and to neutralize the arguments they will make.

Hopkins says it is also important to identify political alliances and determine which constituent groups they own allegiance. Examine the campaign finance records of the elected decision makers to identify major contributors to determine if these contributors are likely to oppose a project.

Hopkins develops and implements campaigns to counter any of the above obstacles. “The sooner you can identify potential pitfalls, the earlier you can develop a campaign to overcome them,” he says.

Involve everyone early on

While transparency is important to the process, Brown says it’s best to first determine what each party needs to know and when it’s best to inform them. “Our approach is to do some project planning; assess environmental liabilities; develop preliminary solutions, and then start talking to people,” he says.

Agency planners should be approached first to get a read on their impressions way ahead of filing an application. This helps to discern if anything has been missed during preliminary planning.

“Next, we talk with elected officials before speaking with the public, as politicians do not want to get a call from any angry constituents regarding a project that they don’t even know about. Then we speak with supporters, followed by likely opponents.

“Keep in mind that engaging each of these parties follows one another very closely in time, as the word travels quickly within the rumor mill. Ultimately, you want all entities to feel that those involved with the project are being forthright and transparent,” Brown says.

Case study number one

Consider the recent plight of a large quarry development that got Department of Natural Resources approval after four years of working toward final permit approval; yet they temporarily withdrew their request to focus on the intense neighborhood (NIMBY) concerns that had been brewing for a considerable amount of time – enough time for the community to have formed a well-organized and well-funded opposition coalition.

In light of these mounting fears, the company created a presentation about its history, safety record and details about the aggregate industry. They directed the community to their website; and, instead of immediate interaction, they announced that they would be communicating directly with neighbors in the coming weeks.

But it seems those efforts were too weak, and came too late in the process. An ordinance was proposed at a county commissioner’s meeting that would ban quarry development within two miles of any residential area comprising 100 homes or more. The quarry company says it was not aware of the ordinance during its first reading, and was not present at the county commissioner’s meeting to respond.

Weeks later, and just days after the quarry re-filed its request for approvals, another commissioner’s meeting was held and the ordinance to ban the quarry was passed. Quarry representatives and their lawyers were there to oppose the ban, but they left hurriedly after the vote.

Reports following the latest commissioner’s meeting indicated that one of the commissioners lived within the residential area near the proposed quarry and felt that the “devastation” it would cause would be too great for the community.

It is possible that if the quarry had addressed the residential concerns early in the process and had done political due diligence prior to any public hearings, they may have been better able to address and mitigate concerns. Or, before considerable time and monies had been expended, they may have found that the project would incur stumbling blocks that could not be overcome.

Although these “what-if” scenarios have no certain and highly predictable outcomes, it is clear that the actual outcome of the permitting process described here was anything but successful – and, arguably, major mistakes were made early in the process.

Case study number two

A case study involving a limestone rock quarry involved a situation where the county planning commission has already issued a negative recommendation after intense community opposition at the initial public hearing. They needed a radical change in the political situation, and consulted with a consulting group.

The immediate priority was identifying and organizing existing supporters to urge the county commissioners to delay the hearing by 30 days, allowing the consulting team to mount an aggressive countywide campaign.

The tactics involved included the following:

1. Conducted a petition drive in support of the quarry.
2. Held meetings for voters with their county commissioners to demonstrate support.
3. Established a countywide coalition of business owners advocating economic development and educating about the full-time jobs the quarry would generate and the beneficial ripple effects.
4. Identified key speakers for the public hearing and provided each with relevant talking points.
5. Held a cookout prior to the public hearing and gathered all of the project supporters to actually march into the public hearing together in a show of local support.

The outcome: According to the consulting group, more than 200 residents of the small rural county attended the public hearing in support of the project.

More than 800 residents signed the petition in favor of the project, and another 110 residents wrote letters of support to their county commissioners. The quarry’s application was approved with a majority vote of the county commission.

Take note

The permitting process can vary from as little as a matter of months (in a few states) to more than seven to 10 years in states such as California. Typically, permitting requires at least two to five years.

This article courtesy of Telsmith Inc., and it may be downloaded in full at www.telsmith.com. See the May issue of Pit & Quarry for part two of “The Permitting Process: Avoiding Pitfalls and Adopting Best Practices.” Author Carol Wasson is a veteran freelance writer for the aggregates and construction equipment industries.

Photo: istock.com/ claylib