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Massachusetts Tidelands Licensing: Where We Are Today

Beveridge & Diamond, P.C., July 2007

On February 12, 2007, the Massachusetts Supreme Judicial Court (“SJC”) invalidated a regulatory exemption promulgated by the Department of Environmental Protection (“DEP”) under G.L.c.91 (“Chapter 91”), the waterways statute, relative to “landlocked tidelands”. Moot v. Department of Environmental Protection, 448 Mass. 340 (2007). This decision appears to have invalidated the exemption relied upon for the construction of many existing projects on landlocked tidelands, and has created enormous uncertainty for new projects proposed to be constructed in landlocked tideland areas.

The Moot case involved a challenge to a DEP decision holding that the construction of a multi-use project was exempt from the licensing requirements of Chapter 91 because it involved a landlocked tideland. The roughly triangular project site consisted of a 48 acre abandoned rail yard and industrial land located in East Cambridge bounded by the Monsignor O’Brien Highway, the Gilmore Bridge and the Massachusetts Bay Transportation Authority rail lines and maintenance facility. The site contained approximately 13 acres of filled Commonwealth tidelands originally filled under a Chapter 91 license issued in 1962 to the Boston and Maine Railroad. Under the original license, drainage culverts were constructed beneath the site and the Millers River, which is no longer visible on the site, currently flows through these culverts.

Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for fishing, fowling and navigation.  Through Chapter 91, the Legislature expressly mandated that any nonwater-dependent use of the tidelands serve a proper public purpose. The obligation to ensure that the public interest and public trust are protected lies with the DEP. In 1983, Chapter 91 was amended to allow the DEP to license nonwater-dependent uses, but only if, after a public hearing, DEP makes a written determination that the structure or fill serves a proper public purpose that provides a greater public benefit than detriment.  In 1990, DEP promulgated regulations which stated that the areas subject to licensing and permitting by DEP did not include “landlocked tidelands.”1

In the Moot case, DEP issued a negative determination of applicability on the basis that a site was located on landlocked tidelands which are exempt from DEP licensing and permitting. This decision was appealed and the SJC ultimately held that the DEP regulation was invalid because it was in excess of DEP’s legislative authority to exempt all landlocked tidelands from Chapter 91 licensing requirements. The implications of this ruling are still being analyzed, but it could have a far reaching impact on existing, proposed and future properties located on landlocked tidelands. The ruling calls into question past developments sited on landlocked tidelands under the now invalid DEP regulation and raises concerns as to what additional approvals are needed for current and future projects. The SJC stayed the effect of its decision for 180 days, giving the Legislature time to act if it so chooses. The stay is currently set to expire in September 2007.

Shortly after the issuance of the Moot decision, the governor filed House Bill No. 3757 in an attempt to preserve the exemption for landlocked tidelands and to quell any questions relative to existing developed properties. This bill remains with the Joint Committee on Environment, Natural Resources & Agriculture, and hope is waning as to its passage. DEP is in the process of drafting new landlocked tidelands regulations that will be consistent with the SJC’s ruling, yet provide a more streamlined permitting process. It is anticipated that the new regulations will be available for public comment in early September 2007. A further stay of the SJC decision may be required if the intent is for the new regulations take effect prior to the expiration of the stay. We will keep you informed of new developments in this matter.

For further information please contact Deborah A. Eliason at deliason@bdlaw.com


1  Landlocked tidelands are defined as “any filled tidelands which on January 1, 1984 were entirely separated by a public way or interconnected public ways from any flowed tidelands, except for that portion of such filled tidelands which are presently located: (a) within 250 feet of the high water mark, or (b) within any Designated Port Areas.  Said public way or ways shall also be defined as landlocked tidelands, except for any portion thereof which is presently within 250 feet of the high water mark.”  310 CMR § 9.02.