In response to some permit-holder complaints that the Missouri Department of Natural Resources (DNR) takes too much time in reviewing or renewing permits and that appealing a permit to Missouri's Administrative Hearing Commission (AHC) can be time-consuming and cumbersome, the Missouri General Assembly adopted House Bill 89. It was signed into law on July 11, 2011 and became effective on August 28.

Though its apparent purposes of streamlining the permitting process may be laudable, House Bill 89 has also had some unintended consequences that are causing some permit-holders pause as they begin facing issues under this new system. House Bill 89 has two relevant provisions that together have lead to these unintended consequences: the "forced permitting" section and the "forced decision" section.

Forced Permitting (Section 640.018)

One part of House Bill 89 was to require DNR to issue permits within a defined period of time. To this end, House Bill 89 added a statutory section 640.018 that provides when DNR has not issued a permit by the expiration of the statutorily-required timeframe for any permit application, the permit shall be issued as of the first day following the expiration of the statutory timeframe. The only express condition on DNR's obligation is that it has the duty to issue such a permit as long as it has been provided "all necessary information" for the duration of the statutory timeframe. As a practical matter, this relatively low threshold will generally be met in virtually every new permit. As for permit renewals, although HB 89 is silent, the same argument may well apply, forcing DNR to quickly finalize permit renewal applications.

Thus, the statute essentially requires DNR to issue a permit as soon as the statutory timeframe expires. Because this will force DNR to complete its review quickly, it provides the incentive for DNR to err on the side of including as many conditions as possible and to be ultra-conservative in issuing any permits. In other words, it does not necessarily allow DNR or applicants all the time necessary to conduct a meaningful and comprehensive review of pending permit applications.

Forced AHC Decision (Section 621.250)

The other provision causing concern among permit-holders in House Bill 89 is the forced decision provision in Section 621.250. The forced decision provision requires the AHC to issue a recommended decision on appeals of permits within 60 days after the notice of appeal was filed and to issue a final decision within 90 days after the notice of appeal was filed. Arguably, these 60- and 90-day periods do not provide the AHC with adequate time to consider fully the arguments of the parties and the record before it. Although the deadlines do encourage the AHC to work in a timely fashion and to be efficient, they may result in the AHC appeal process becoming overly hurried and date-driven, rather than data-driven.

Taken together, the forced permitting and forced decision provisions may lead to unexpected and unanticipated problems for permit-holders as well as for DNR. Permit-holders should be aware of these new timeframes and the new requirements when applying for permits or renewing permits.