Mass Tidelands Licensing: Legislature Enacts Corrective Legislation for Landlocked Tidelands Permitting
Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, November 2007
On November 5, 2007, the Massachusetts Legislature passed and forwarded to the Governor for signature a bill that addresses the invalidation of the landlocked tidelands exemption from G.L.c.91 (“Chapter 91”) by the Massachusetts Supreme Judicial Court (“SJC”) earlier this year.
On February 12, 2007, the SJC invalidated a regulatory exemption promulgated by the Department of Environmental Protection (“DEP”) under Chapter 91, the waterways statute, relative to “landlocked tidelands”. Moot v. Department of Environmental Protection, 448 Mass. 340 (2007). The decision appeared to invalidate the exemption relied upon for the construction of many existing projects on landlocked tidelands and prompted legislative action to quell the enormous uncertainty created for existing projects and for new projects proposed to be constructed in such areas. The legislation sent to the Governor for signature this week would resolve many of the problems created by the Moot decision.
The bill approved by the Legislature retroactively validates and confirms the DEP regulations exempting landlocked tidelands from Chapter 91 licensing requirements which were deemed invalid by the SJC. The legislation also grandfathers any fill, use or structure developed pursuant to the prior regulations. Prospectively, the legislation provides that neither fill on landlocked tidelands nor uses or structures located on landlocked tidelands require a Chapter 91 license. Instead, it sets up a process of review by the Secretary of the Executive Office of Energy and Environmental Affairs (“Secretary”) and establishes the Secretary as the “Administrator of Tidelands”.
Under the pending bill, the Secretary is responsible for conducting a public benefit review for any proposed project to be built on tidelands or on land defined as a landlocked tidelands that requires an environmental impact report. The Secretary may conduct a public benefit review for such proposed projects that require the filing of an environmental notification form. The definition of landlocked tidelands in the legislation is effectively the same as that found in the invalidated regulations.1 At the completion of the public benefit review, the Secretary must make a public benefit determination for the project. The legislation also expressly authorizes the Secretary to establish regulations that exempt from review, development of certain parcels of land, or certain activities, uses and structures on land that are determined by the Secretary to be of de minimus impact.
In addition, the legislation amends the Massachusetts Environmental Policy Act (“MEPA”) process by requiring projects built on landlocked tidelands to include in the environmental notification form and the environmental impact report, if required, an explanation of the project’s impact on the public’s right to access, use and enjoy tidelands protected under Chapter 91 and to identify measures to avoid, minimize or mitigate any adverse impacts. Furthermore, in areas where low groundwater levels have been identified as a threat to building foundations, the environmental notification form and the environmental impact report, if required, must identify and commit to taking measures to avoid, minimize or mitigate any adverse impact on groundwater levels.
In sum, the legislation solves the tidelands permitting dilemma created by the Moot decision, but it adds another level of review for certain projects subject to licensing under Chapter 91. The legislation also provides an alternative to the Chapter 91 licensing process for future projects located on landlocked tidelands. According to the legislation, the Secretary’s review is not intended to supersede the provisions of Chapter 91 or MEPA or to delay licensing or review under either chapter.
For further information please contact Deborah A. Eliason at deliason@bdlaw.com
1 Landlocked tidelands are defined as “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 that are presently located: (a) within 250 feet of the high water mark of flowed tidelands, or (b) within any designated port area under the Massachusetts coastal zone management program. For the purposes of this definition, a public way may also be a landlocked tideland, except for any portion thereof which is presently within 250 feet of the high water mark of flowed tidelands.”
