June 18, 2014

On Mating Elephants: The State of Permitting in the Pacific Northwest


By Scott Anders

Summer 2012

Some wisecracking congressional observer once said that getting legislation through Congress is like mating elephants: It's done at a very high level, it's done with a lot of screaming and yelling, and it takes at least two years for results. Unfortunately, this old joke about congressional legislation could now also refer to the process for obtaining the necessary permits for new developments in Washington State. Many projects can take two years to get approval before even a shovelful of dirt can be moved. Why is that a problem?

For starters, the process is accomplished in other states in far less time. Texas and South Carolina have had recent high-profile projects that received permitting in less than two months. I know, we do not necessarily want to be like South Carolina or Texas because Washingtonians want to preserve a certain environmental quality, but right next door in Oregon approvals can be secured in six months. Oregon also places a high value on environmental quality, but recently has taken action in order to create a more efficient process to compete for business.

While many savvy businesses plan for expansions two years out, they do not count on theadditional two years in the approval process before they can even break ground. Once the decision is made to build a new facility, the proponent wants the new development productive as soon as possible. Generally, businesses expect that they will be well under construction, reaching completion, or even up and running within a year of the development application. In Washington State, they are probably only halfway through the approval process by that time. And that does not even factor in potential appeals of project approvals.

When businesses find out that the complicated development-approval process takes so long in Washington, they often move on for another reason — time is money. If they can be productive and profitable in far less time in another state, it is hard to create an argument strong enough to keep them in Washington. Add on the stringent stormwater regulations and it is a nightmare. Why is this a problem? The development projects not coming to the state are those that bring employment. We need jobs, and the businesses that could provide them are choosing to locate elsewhere. When businesses do not want to locate here, it creates the distinct potential that our state can become an economic backwater, instead of an economic powerhouse.

The problem is not with the local governments, which have done a good job of reviewing their procedures and which have done much to streamline the process for development. The problems are largely at the state and federal government level; that is where correction needs to take place.

The state needs to eliminate a vast swath of duplicative development-approval processes. Local governments are required to follow the edicts of the state agencies and impose state standards in approving a development. It makes little sense to have the state review the same standards and grant a second approval. Likewise, the federal government takes an extraordinary length of time to make approvals, even though the law states that it should deliver decisions more quickly.

Establishing a streamlined development-approval process is an immediate concern if our region is to maintain its economic viability. Permitting can be done easily while maintaining a high standard of environmental protection, but we need to make a few adjustments. Employment and environmental protection need not be opposing goals.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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