Center's statement to DNR

To: DNR Board and Staff
From: David Kyler, Executive Director, Center for a Sustainable Coast
Subject: Comments regarding the proposed rules for issuing marsh buffer variances
Date: May 10, 2007

For the same reason that we are compelled to closely monitor many decisions made by the Coastal Marshlands Protection Committee, we are concerned that rules being proposed for issuing variances under that Coastal Marshlands Protection Act will lack sufficient analysis and monitoring to ensure protection of the public interest. Under current practices, staffing and budgeting only provide a nominal degree of field monitoring of marsh permits, and virtually none of this is devoted to determining the actual impacts of the permitted activities on the resources intended to be protected under the Act. Monitoring currently consists of nothing more than determining if the project has been built as permitted. This means that any errors of judgment made by the staff or the permitting committee in their assessment of the project and its impacts will be extremely unlikely to be discovered. As a result, any number of individual permits may cumulatively add to the adverse effects of a multitude of permitted projects along and/or within the marsh.

Another reason to question the acceptability of any procedures for issuing a buffer variance underscores similar weaknesses in the current methods for analyzing permit applications: namely, that the staff simply lacks the technical capability to evaluate certain key requirements for determining the public interest of a particular proposal. For example, in the permit issued for the Liberty Harbor marina earlier this year, in the staff report commenting on the public interest test for shoaling and erosion, the staff simply restated the claim made by the applicant - that the project would have no significant adverse effect. Although I pointed this out to the permitting committee at the hearing, no one commented on it or inquired about it with either the staff or the applicant. This clearly demonstrates that for at least one of the three primary tests of public interest set forth in the Act, the committee is not provided with any independent technical opinion as to the impacts of the proposed activities before permits are decided. As a result, permits are being issued that lack both sufficient analysis of impacts and without the monitoring necessary to determine the actual effects of the permitted activity on public resources meant to be protected by the Coastal Marshlands Protection Act.

Further evidence of the weakness of current enforcement practices is that there are no measurable standards against which to apply the three public interest tests. This means that even if there were monitoring of erosion, for example, there would be no quantifiable means to determine whether or not the permitted activity produces "unacceptable" levels of erosion. Recognizing these grave deficiencies, we submit the following three points about the proposed procedures for issuing marsh buffer variances.
  • To provide a variance of any kind when the purpose of the Act is to protect coastal marshes and the organisms that depend on them is prone to subverting the public interest objectives of the law because of inadequate analysis, prediction, and monitoring of the consequences.

  • Like a permit itself, if a variance can be justified, the burden of proof rests on the applicant, and this burden is substantial since the applicant seeks to use public resources that have been declared a vital area of the state. Such proof must be complete and compelling, to include an objective analysis of the impacts of, as well as the need for, a variance. Evaluation of both must be based on a preponderance of evidence in the form of analysis of the specific circumstances and conditions of the site, and which supports incontrovertible justification for the approval of any deviation from the buffer requirement.

  • Regardless of provisions for variances, it is inappropriate to adopt rules establishing a buffer for only a portion of the marsh when recent rulings clearly indicate the courtıs view that permits issued under the Act provide state authority for protecting all marshlands related to any aspect of a project for which a permit is requested.
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