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Landlocked Tidelands Exemption Restored
November 15, 2007
The ability to develop on landlocked tidelands without act of Massachusetts legislation has been restored by Chapter 168 of the Acts of 2007. Until the opponents of the North Point development pursued the appeal, the “landlocked tidelands” were contained in regulation issued by the Department of Environmental Protection 310 Codes of Massachusetts Regulations 9.04(2). But when the Supreme Judicial Court found that regulations invalid in Moot v. Department of Environmental Practices, 448 Mass. 340 (2007) ruling that Massachusetts General Law c. 91, s. 18 as amended in 1983 requires that the DEP hold a public hearing and make a written determination that a nonwater-dependent use of filled tidelands serves a “proper public purpose” and the exemption prevented this process.
The recently enacted legislation, effective November 15, 2007, brings back the protection from Chapter 91 Licensing requirements for landlocked tidelands. Prior to the SJC's decision in the Moot case, the Department of Environmental Protection exempted all tidelands that met the definition of a Landlocked Tideland from the Chapter 91 Program. The SJC determined that this regulatory exemption was not authorized by the statute and the new legislation provides express authorization for the exemption.
Landlocked tidelands are now defined as:
"Landlocked tidelands", filled tidelands, which on January 1, 1984 were entirely separated by a public way or interconnected public ways from any flowed tidelands, except for any 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.
The statute exempts landlocked tidelands entirely from the licensing requirements of the Chapter 91.
It should be noted, however, that the new legislation imposes an additional procedural requirement on new projects, or significant alterations to existing developments, located on landlocked tidelands that are already required to undergo review pursuant to the Massachusetts Environmental Policy Act (“MEPA”). Those projects must now include, "an explanation of the project’s impact on the public’s right to access, use and enjoy tidelands that are protected by Chapter 91, and identify measures to avoid, minimize, or mitigate any adverse impact on such rights set forth herein." Finally if the project is in a low groundwater area, the MEPA filing will need to discuss that.
Once the MEPA filing is made, the Secretary of the Executive Office of Energy and Environmental Affairs (the “Secretary”) will consider the Chapter 91 information and can include conditions and requirements derived from that information in the Certificate ultimately issued under MEPA.
The legislation also imposes a requirement on the Secretary to make a “public benefit determination” in connection with the MEPA review of a project to be constructed on Landlocked Tidelands. This determination, however, would not operate to preclude or require alteration of a project. It merely serves as a public record that the public benefits of the project were reviewed and evaluated. We note that the Secretary is authorized to exempt certain categories of development from the public benefit review and to establish procedures for the conduct of that review, which may occur concurrent with the MEPA review process, by promulgating new regulations.
While the new legislation does not bring projects on Landlocked Tidelands that do not otherwise qualify for MEPA review into the MEPA process, care should be take to determine whether projects that would already qualify for MEPA review must also include a Landlocked Tidelands analysis.
The legislation also requires the Department of Environmental Protection to undertake a study of groundwater and surface water flow and drainage in the sections of Boston, Cambridge and Somerville formerly identified as the Miller’s River, which includes the North Point development.