New Regulations Aim to Streamline Wetlands Appeals at MassDEP

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, November 2007

The Massachusetts Department of Environmental Protection (MassDEP) has approved regulatory changes effective October 31, 2007 aimed at streamlining wetland appeals administered by the agency. The effort is targeted at more expeditiously resolving appeals of MassDEP’s various superseding orders and variance decisions by setting a presumptive six-month timeline for a decision. 

The revisions to 310 CMR 10.05(7)(j) attempt to accomplish this goal by establishing a more rigid timetable for appeal resolution. The MassDEP Presiding Officer assigned to the appeal is directed to issue a scheduling order establishing a prescreening conference within 30 days. No later than 45 days after the prescreening conference, the appellant must filed its written case, including all evidence in support of its position and its legal arguments, with the respondents filing their written materials 30 days later. 

The Presiding Officer will schedule a one-day evidentiary hearing within 120 days of the filing of the appeal dedicated to cross-examination and, in some cases, closing arguments, and generally limited to one day. However, the Presiding Officer retains the option of transferring cases to the Division of Administrative Law Appeals if such a transfer is beneficial to the timely resolution of a case. The Presiding Officer will issue a written recommended decision no more than 30 days after the close of the hearing. The Commissioner’s final written decision is due before the expiration of the six-month period from the issuance of the appealed decision, unless the project is deemed “Major or Complex” in which case the deadline is extended an additional month.  Although these deadlines are “binding,” they can be extended upon a showing of “extraordinary circumstances.”

In an electronic mail notification of the regulatory changes, MassDEP also announced that it was establishing regional prescreening and hearing days twice each month in each regional office and in Boston, adding some predictability to the scheduling of prescreening conferences and hearings.

Wetland appeals already underway before the October 31, 2007 effective date will remain subject to the 2004 wetland and appeal regulations. Although earlier versions of the regulatory revision had included limitations on who would appeal these types of decision,  including elimination of 10-resident groups, the regulations as adopted left those provisions unchanged.

To view the new regulations from the MassDEP web site, please click here.

For further information, please contact Brian Levey at blevey@bdlaw.com, or Marc Goldstein at mgoldstein@bdlaw.com.