Massachusetts has significantly amended its waterways statute, Mass. Gen. Laws Chapter 91, clarifying the authority of the Department of Environmental Protection (DEP) to issue licenses for construction or development on “landlocked tidelands.” The amendments are important to anyone developing or owning property that is now or was formerly subject to the ebb and flow of the tides, even if that land was filled in decades or centuries ago.
In February 2007, the Massachusetts Supreme Judicial Court ruled in Moot v. Department of Environmental Protection that DEP acted without sufficient legislative authorization when it granted the developer of the NorthPoint project a license to develop a large parcel in Cambridge that was located partially on filled -- and now “landlocked” -- tidelands. Tidelands become landlocked, according to the definition provided in Chapter 91, when they are separated from “flowed” tidelands by a public way and filled in. Many tidelands thus landlocked have historically been built upon as reclaimed land; although the most prominent landlocked tideland in the Commonwealth is Boston’s Back Bay, landlocked tidelands exist in numerous other communities, including Gloucester, Salem, and New Bedford.
The Court agreed with the Moot plaintiffs, noting that Chapter 91 requires DEP to “preserve and protect” the public’s rights in tidelands, and that those public rights can only be relinquished or extinguished by the Legislature. The Court held that while DEP was authorized to license “non-water-dependant” uses of tidelands, it could only do so if such a use constituted a “proper public purpose.” While declining to determine what precisely constitutes a “proper public purpose,” the Court held that the failure to hold a public hearing regarding whether proper public purposes existed meant that DEP had failed to meet its statutory mandate. In particular, the Court explicitly invalidated the DEP regulations (310 Code Mass. Regs. § 9.00 et seq.) that categorically exempted “landlocked tidelands” from licensing and public review requirements.
Following the Court’s decision, there was extensive public concern that both ongoing and existing developments on landlocked tidelands -- which had proceeded pursuant to the Court-invalidated DEP regulations -- could themselves be declared in contravention of Chapter 91, thus complicating further development and potentially clouding hundreds of property titles. By some accounts, over 3,000 acres of landlocked tidelands currently exist within the Commonwealth. After lengthy discussions involving Governor Deval Patrick, the Legislature, and interest groups, the Legislature responded to the Moot decision by passing legislation meant to redress the authority of DEP to license and oversee development on the Commonwealth’s tidelands. This legislation, entitled “An Act Relative to the Licensing Requirements for Certain Tidelands,” was signed into law by Governor Patrick on November 15, 2007.
What does the Act do?
The Act has four main components: it statutorily defines “landlocked tidelands” for the first time; it eliminates the Chapter 91, § 18 licensing requirement for filling or using landlocked tidelands (and does so both prospectively and retroactively); it requires most projects built on tidelands or waterways to undergo a new “public benefit review” process; and it requires projects developed on landlocked tidelands to provide additional documentation to DEP before proceeding. The Act also includes a specific provision requiring a groundwater study in the area of Cambridge where the North Point project is currently being constructed.
1. Statutory Definition of “Landlocked Tidelands”
The Act defines “landlocked tidelands” as filled tidelands that, 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 either:
- Within 250 feet of the high water mark of flowed tidelands, or
- Within any designated port area under the Massachusetts coastal zone management program.”
For the purposes of this definition, it is possible for a public way to constitute a “landlocked tideland,” except if any portion of the public way is presently within 250 feet of the high water mark of “flowed” tidelands. This statutory definition is identical to the DEP regulatory provision, 310 Code Mass. Regs. § 9.04, that was invalidated by the Supreme Judicial Court in Moot.
2. Elimination of Chapter 91 Licensing Requirement for Landlocked Tidelands
The Act eliminates the need for developers or others to obtain a DEP Chapter 91, § 18 license for a) placing fill on landlocked tidelands, b) any uses of landlocked tidelands, or c) for construction or modification of any structures within landlocked tidelands. Importantly, this provision is both prospective and retroactive. It therefore removes any cloud on now-existing (or in-progress) projects, built upon landlocked tidelands, that did not obtain a Chapter 91, § 18 license at the time they commenced.
The Act also validates and confirms DEP regulations (310 Code Mass. Regs. § 9.00 et seq.) that exempt landlocked tidelands from licensing, doing so “as if this act had been in effect when such regulations and determinations were issued [by DEP].” The Act also moves to foreclose any further legal challenges, barring challenges to existing or in-progress projects on the grounds that DEP lacked the authority to promulgate such regulations (or any future projects that, while not yet begin, received their necessary DEP approvals pursuant to the previous regulatory framework).
3. New “Public Benefit Review” Process
The Act names the Secretary of the Executive Office of Energy and Environmental Affairs as the “administrator of tidelands,” and authorizes him or her to conduct and complete a “public benefit review” for any proposed project that is either a) subject to the licensing provisions of Chapter 91, §§ 13 or 18, or b) geographically located on landlocked tidelands. The Secretary is required to conduct a public benefit review where the project requires an environmental impact report (EIR) pursuant to the Massachusetts Environmental Policy Act, or MEPA (Mass. Gen. Laws Chapter 30 §§61-62H); the Secretary may conduct such a review where the project requires an environmental notification form (ENF) under MEPA. The results of the public benefit review are required to be published on the public record.
In making the “public benefit determination,” the Secretary is required to consider the following elements:
- The purpose and effect of the development;
- The impact on abutters and the surrounding community;
- Enhancement to the property;
- Benefits to the public trust rights in tidelands or other associated rights, including those provided through previously obtained municipal permits;
- Community activities on the development site;
- Environmental protection and preservation;
- Public health and safety;
- The general welfare;
- The differences between tidelands, landlocked tidelands, and great ponds when assessing the public benefit; and
- The practical impact of the public benefit on the development.
The Act requires the Secretary to promulgate regulations authorizing the exemption of certain de minimus projects from a public benefit review, setting timelines and procedures for the public benefit review, and providing mechanisms for combining the public benefit review with any otherwise-required MEPA environmental review. Finally, the Act provides for an appeal of a public benefit review decision to the Division of Administrative Law Appeals. Notably, it appears that the appeal provision is available to any party that can claim standing, and not just to license applicants.
The most prominent area of uncertainty surrounding the implementation of this provision concerns how the “public benefit review” process will interact with the Chapter 91, § 18 and MEPA licensing processes. The Act provides that the public benefit review process is to operate independently of the Chapter 91, § 18 and MEPA licensing processes, stating that the public benefit determination “shall not delay the issuance of a license pursuant to [Chapter 91] or the completion of a review or any step thereof pursuant to chapter 30 [MEPA]”. However, while the public benefit review is nominally distinct from the Chapter 91, § 18 and MEPA licensing process, it may be difficult in practice for DEP to ignore a published negative public benefit review (i.e., one that found “no public benefit” in a project impacting waterways or tidelands) when making either a Chapter 91, § 18 or a MEPA licensing determination. Additional complications appear possible if, for example, a positive public benefit determination is overturned on appeal after DEP has issued an otherwise valid Chapter 91 license, or if a public benefit determination (and license) are granted on the basis of a proposed public benefit that ultimately fails to materialize.
4. New Requirements for Development on Landlocked Tidelands and Low Groundwater Sites
The Act requires all individuals who are proposing new uses (or modifications of existing uses) on landlocked tidelands after November 15, 2007, and where the project is subject to MEPA, to include the following in the EIR or ENF:
- An explanation of the project’s impact on the public’s right to access, use, and enjoy tidelands protected by Chapter 91;
- An identification of measures to avoid, minimize, or mitigate any adverse impact on such rights; and
- If the project is located in an area where low groundwater levels have been identified by any governmental agency as being a threat to building foundations, the ENF and EIR must also include an explanation of a project’s impact on groundwater levels, and an identification and commitment to taking measures to avoid, minimize, or mitigate adverse impacts of the project on groundwater levels.
After the Secretary issues a certificate pursuant to MEPA for a project on landlocked tidelands, the applicant must file a form with DEP providing notice that work will be conducted within landlocked tidelands, and must attach the MEPA certificate.
5. Requirement for a Groundwater Study in Certain Communities
The Act requires DEP to undertake a groundwater and surface water study in certain sections of Cambridge, Somerville, and Boston in the area formerly known as Miller’s River (the location of the NorthPoint project that led to the Moot litigation). An interim report is required by April 1, 2008, and a final report is due by December 31, 2008.
What are the next steps?
This legislation was passed with an “emergency preamble,” meaning that its provisions are effective immediately (as of November 15, 2007). The Act requires DEP to promulgate new regulations pertaining to the “public benefit review” process, and we expect that DEP will do so in an expeditious manner. Notably, the “public benefit review” process applies to all projects involving tidelands, not just to projects involving landlocked tidelands. As discussed above, it also is unclear at present how the “public benefit review” process, although nominally independent of the Chapter 91, § 18 and MEPA licensing requirements, will influence or alter those requirements in practice.
Because a Chapter 91, § 18 license is no longer required for filling, building on, or using a landlocked tideland - and because this provision applies retroactively - the Act resolves many of the general concerns regarding the marketable title of such properties. However, individuals who are planning projects on landlocked tidelands, or on areas where low groundwater has been identified as a concern, should ensure that the contents of any required ENF or EIR comports with the new requirements in this regard. Note that Chapter 91 still has potentially significant effect on projects, especially those built on non-landlocked tidelands and other waterways. DEP has announced its intention to continue its review of the Chapter 91 regulations, and further regulatory or policy changes are expected in the relatively near future.