Regulatory 101: The Dos and Don’ts of the Regulatory ProcessPublished on March 22, 2019
No matter where I go in the world, I listen to facility operators bemoan their biggest headaches, and it does not usually take any prodding! They complain about rising costs, including taxes and insurance, to finding and retaining employees. At times, it seems like the list goes on forever. But, almost universally, the #1 headache is regulation.
Permitting and Compliance
And the issues fall into two main categories – what I tend to call “new permitting” and “ongoing compliance.” The first task includes getting permission to undertake something, such as an expansion, a new building, or even replacements. The second has to do with the never ending stream of requirements that come along with doing most anything – like painting, washing, fixing, fueling. Another set of regulations oversee getting to and from boats, as well as stormwater management, even just letting water flow downhill. In both cases, there seems to be no end to that for which one needs to get permission.
Most regulations seem to be created by those who have limited knowledge of actually designing, building or running a facility. They are aimed at one particular issue, but bringing numerous other approaches and activities into the umbrella of the regulation. Worse, regulators make their own interpretations, based upon the “cause du jour.”
More often than not, the industry also has itself to blame, as individual facilities as well as industry associations do not take the time to be part of the rule making. We seem to be more of a reactive than proactive industry. For example, if you consider the EPA’s Multi-Sector General Permit for Stormwater Discharges from Industrial Activities (still a mouthful even after so many years saying it), why is it that marinas and boatyards are required to test their stormwater runoff for various metals, but shipyards are not? It is not particularly logical, other than recognizing that the shipping industry was more involved in the development of those regulations than the recreational boating industry.
On the other hand, if you look at the development of US Access Board’s Accessibility Guidelines, which is one of the relatively few areas where the boating industry was particularly involved and proactive, you find the outcome far less burdensome than many of the approaches that were being pursued prior to the establishment of the guidelines. Being involved really made a difference.
Even with a more involved industry, and despite the occasional promises made, existing regulations are not likely going away, and in most cases, they will only get tighter, or at least more abundant.
So what can one do? First is to understand that the regulators are individuals that have a job to do, and regardless of the frustrations you may find, they should be treated openly, and in a friendly and reasonable manner, no differently than you would like to be treated. With that in mind there are many things that can be implemented.
For any regulatory approval applications, such as simply putting up a fence, to a redevelopment and/or expansion project, get a copy of the regulations, so you can better understand what the objectives and the requirements are for the application.
Pre-application discussions can be very meaningful. They can provide a perspective of what the regulators are looking for, what they feel is important to address, and what their reactions are to your desires.
Talking to neighbors can be very meaningful. Many are hesitant to talk to neighbors, particularly those where there is an undesirable or neutral relationship, because it is believed that will awaken and stir up problems. In reality, it is rare that neighbors do not get wind of what is being proposed. If there are issues, talking them out before the application process is undertaken can be very meaningful, particularly if some concerns can be minimized. If there are issues, there is a 99 percent probability that they will be raised in the application process. People react to both what is being proposed and, perhaps more importantly, how something is being proposed. Talking with neighbors rarely can be a problem, and if there are issues, better to know about them in advance and address them in the application so the regulators are aware that you recognize the issues and what you have tried to do to minimize them.
Most regulations, including land use regulations, usually have a preamble or explanation document that provides the conceptual insight as to what is the desired outcome by the regulating authority. Seek to address every point raised or discussed. Try not to sidestep issues, even when they may not make you shine in the best light. Make sure the drawings are clear and easy to read, setting forth what exists and what is proposed. Try to answer and fulfil the requirements as fully and meaningfully as possible. Try not to provide information that is not relevant to the application even if it is meaningful to you. Discuss the alternatives that you may have considered and why they do not meet the desired program.
It is rare that any proposed project does not meet and/or foster one or more of the conceptual goals of the various regulations. Try to seize upon those and discuss the merits of the application in relation to those goals. For instance, marinas foster access to and into the water, which is one of the foundations of most coastal zone management programs. As the old song from Here Come the WAVES goes, “You’ve got to accentuate the positive, eliminate the negative, latch on to the affirmative, and don’t mess with Mister In-Between!”
And speaking of a sort of Mister In-Between, and not to be too self-serving, many times a consultant can be of assistance, particularly if they are familiar with the process and can help guide you through the numerous yin yangs.
And contradictions abound, both in the regulations and the views by the various agencies having overlapping jurisdictions. Taking the time to meet with them and discussing them openly and fairly usually is extremely beneficial. Providing potentially misleading or omitting certain information about your project altogether is a good recipe for disaster.
Some of the most difficult projects have been hauled down the hall and dropped at our doorstep. Yet by working with the agencies, understanding the intent, letter and perspective of the regulations, and maintaining an objective perspective, we have found that most projects can be molded to be more functional, meaningful and approvable, if explained in a cause and effect way, including how they achieve the various regulatory goals. And yes, sometimes getting through the maze takes perseverance and a great deal of patience.
But as verse two (slightly rearranged) of that old crooner notes, “You’ve got to have faith or pandemonium, is liable to walk upon the scene. Bring gloom down to the minimum, [so you can] spread joy up to the maximum!” And in my book that’s what boating is all about – joy to the maximum.
Dan Natchez is president of DANIEL S. NATCHEZ and ASSOCIATES Inc., a leading international environmental waterfront design consulting company specializing in the design of marinas and marina resorts throughout the world. He invites your comments and inquiries by phone at 914/698-5678, by fax at 914/698-7321, by e-mail at email@example.com or on the Web at www.dsnainc.com.