Permits during a state of emergency: the dispensation and its clocks

It is Chapter 2.5 of Joint Regulation No. 9473, titled "Filing of Procedures During States of Emergency". Its purpose, the regulation says, is to establish alternative procedures and terms to expedite the granting of permits, recommendations, consultations or certifications related to solving states of emergency, as that term is defined in the regulation and as provided by Ley 76-2000, the "Act on Procedures for Emergency Situations or Events".

A declared state of emergency must exist, as defined in Ley 76-2000, and the work must constitute a solution to the situation created by that emergency. The Pre Consulta Legal is adjudicated precisely to establish whether the proposed work does constitute a solution to the situation created by that emergency and is covered by the Executive Order. Outside a declared emergency, this chapter does not apply.

• That a state of emergency has been declared by Executive Order, as defined in Ley 76-2000.Verified against the official source
• That the work constitutes a solution to the situation created by that emergency and is covered by the Executive Order.Verified against the official source
• Filing the dispensation request through a Pre Consulta Legal.Verified against the official source
• For consultations under Regla 2.5.3, including at the time of filing evidence of compliance with Ley 416-2004 on environmental public policy, except for the exceptions the chapter itself establishes.Verified against the official source

• Project location under Regla 2.1.6 (State Plane Coordinate System).
• Explanatory Memorial detailing that the project conforms to the Order declaring the state of emergency.
• An explanation of how the proposed action solves or relieves the declared state of emergency.
• Certification, where applicable, that the proposed action qualifies as a Categorical Exclusion; otherwise, the corresponding environmental document.
• A statement of the permits, certifications, authorisations, licences or consultations for which the emergency dispensation is requested.

1. 1

   Step 1: First: there must be an executive order

   This whole chapter hangs on a declared emergency. For the duration of a state of emergency so declared, as defined in Ley 76-2000, any work that constitutes a solution to the situation created by that emergency and that requires a permit, recommendation, consultation or certification may be dispensed from the terms and procedures established in the Joint Regulation, so that the work moves faster. With no executive order declaring the emergency there is no fast lane: the ordinary regulation applies.

2. 2

   Step 2: Where it is filed

   Two scheduling rules. First: projects carried out under this chapter have priority in the scheduling of OGPe or of the Planning Board, as applicable. Second, and this surprises many people: projects are filed directly with OGPe, regardless of autonomous municipalities holding hierarchy-transfer agreements. That is, even if your municipality would normally evaluate that permit under an agreement, in an emergency the filing goes straight to OGPe.

3. 3

   Step 3: The works that need no permit

   The regulation lifts four situations out of the process. Emergency situations or events involving works, projects or programmes that require no permit, recommendation, consultation or certification are governed by the Governor’s Executive Order itself. Any public work to repair a work directly affected by the emergency is exempt from obtaining a construction permit, provided the damage does not exceed fifty per cent of replacement value; and if the work is to be considered for federal funding, it must meet federal agency requirements such as FEMA’s. Any work aimed at restoring infrastructure affected by an emergency or natural catastrophe is exempt from environmental compliance. And any work or activity to restore or rehabilitate directly affected infrastructure is exempt from construction permits, the general permit or any other state-level permit by decree of the Governor and the President of the United States, so the federal agency requirements inherent to the emergency must be met instead.

4. 4

   Step 4: The Pre Consulta Legal and its five contents

   Every dispensation request for a filing to be evaluated as an emergency must be presented through a Pre Consulta Legal, which must include at least five things: the project’s location under Regla 2.1.6 (state plane coordinate system); an explanatory memorial detailing that the project conforms to the Order issued by the Governor of Puerto Rico or the President of the United States declaring the state of emergency; an explanation of how the proposed action solves or relieves the declared emergency; certification, where applicable, that the proposed action qualifies as a Categorical Exclusion — and otherwise the corresponding environmental document; and a statement of the permits, certifications, authorisations, licences or consultations for which the dispensation is sought. The Pre Consulta must be adjudicated within five working days, and it establishes whether the proposed work does constitute a solution to the situation created by the emergency and is covered by the Executive Order.

5. 5

   Step 5: Exemption from stamps, vouchers and fees

   Once the filing is authorised under the Executive Order and this rule, the corresponding filing is made with the payment for service. However — and this is the sentence worth having to hand — projects carried out under this chapter are exempt from paying any stamp, voucher or fee required for the granting of permits, recommendations, consultations or certifications. We publish no cost figure because the chapter mentions a payment for service without fixing its amount.

6. 6

   Step 6: The Permit Unit’s five days and its silence

   The Permit Unit has a non-extendable term of five working days from the filing of the request for recommendations to issue them. And the regulation says what happens if it does not answer: if no answer is received within that term, it is understood that it has no recommendation on the proposed action. Note the word non-extendable: the regulation gives the Permit Unit no room to ask for more time in this lane.

7. 7

   Step 7: If there is an environmental document: DECA, the Sub-Committee and the 45 days

   Where the filing is an environmental document, DECA has ten working days from the date the environmental document is filed to issue its recommendation to the Inter-Agency Sub-Committee for Accelerated Environmental Compliance created in the Executive Order declaring the emergency. That term may be extended to harmonise it with the factual reality of the probable start of works or the completion of required studies. The evaluation of the document is carried out by the Sub-Committee, which may extend this term up to a maximum of forty-five days. And there is an important equivalence: the Sub-Committee’s determination is the determination of OGPe or of its Adjudicative Board. Remember that any work aimed at restoring infrastructure affected by an emergency or natural catastrophe is exempt from environmental compliance.

8. 8

   Step 8: Imminent risk

   The regulation reserves an exit for what cannot wait: scenarios representing an imminent risk to the safety of the population, in which government infrastructure entities are exempt from filing a permit in order to take immediate action to contain and mitigate the risk situation. It is an exemption aimed at government infrastructure entities, not a general licence.

9. 9

   Step 9: Notice: one advertisement in two newspapers and a sign

   For procedures where interested parties must be notified, in this lane the publication of one advertisement in two general-circulation dailies suffices. In addition, a sign must be installed on the property where the work will be carried out, complying with Sección 2.1.9.12 of the regulation on the Filing Sign. If you are the neighbour of an emergency work, that is the notice to look for.

10. 10

    Step 10: And at the end: five working days for the permits

    Once the Location Consultation or the Environmental Document is approved, OGPe has five working days to evaluate and issue the corresponding permits, once the project is filed. It is the chapter’s last clock, and it runs from the filing of the project, not from the approval of the consultation.

Directly with OGPe, which is what the chapter says: projects are filed directly with OGPe, regardless of autonomous municipalities holding hierarchy-transfer agreements. Location consultations under Ley 76-2000 are filed with the Planning Board or OGPe as applicable, also bypassing the municipal agreement. The environmental document goes to DECA, which recommends to the Inter-Agency Sub-Committee for Accelerated Environmental Compliance created in the Executive Order itself.

• Invoking the emergency lane without an executive order declaring it.
• Filing with the autonomous municipality holding a hierarchy agreement, when this chapter sends you to OGPe.
• Filing without a Pre Consulta Legal, which is the door to the dispensation.
• Leaving out the explanation of how the proposed action solves or relieves the declared emergency.
• Paying stamps, vouchers or fees the chapter exempts you from.
• Assuming the public-works permit exemption applies where damage exceeds 50% of replacement value.
• Believing the state exemption also frees you from FEMA requirements if federal funds are to be sought.
• Waiting for a Permit Unit recommendation after its five non-extendable working days.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov