Governor Patrick Signs Legislation to Exempt Landlocked Tidelands from Chapter 91 Licensing
by Matthew J. Lawlor and Karl P. Baker

Responding to widespread concerns about the impact of the Massachusetts Supreme Judicial Court decision in Moot v. Dept. of Envtl. Prot., newly enacted legislation reinstates the exemption of landlocked tidelands from the Chapter 91 Waterways licensing process. The legislation also amends MEPA by adding new requirements related to projects on landlocked tidelands and introduces the concept of a Public Benefit Review into Chapter 91. These changes in the law were effective immediately upon the Governor’s signature on November 15 th.

On November 15, 2007, Governor Deval Patrick signed into law a bill legislatively exempting “landlocked tidelands” from the Chapter 91 licensing process. This legislation was a direct and openly invited response to the well-publicized case, Moot v. Dept of Envtl. Prot., 448 Mass. 340 (2007), in which the Supreme Judicial Court held that the Department of Environmental Protection (DEP) lacked statutory authority for its regulatory exemption of “landlocked tidelands” from the Chapter 91 licensing process. The Moot decision, which may also be remembered for its impact on the NorthPoint development in Cambridge, created widespread uncertainty about the development of landlocked tidelands and generated calls for corrective legislative action almost immediately. Beyond reversing the effect of the Moot decision, the bill signed by the Governor (Chapter 168 of the Acts of 2007) also makes further changes to General Laws, Chapter 91 and the Massachusetts Environmental Policy Act (MEPA), codified at General Laws, Chapter 30, §§ 61, 62-62H, that may be seen as compromises with those who favored the result of the Moot decision, i.e., a Chapter 91 licensing requirement for projects on landlocked tidelands. These changes include the introduction of Public Benefit Reviews under Chapter 91, and new requirements under MEPA that developers of projects located on landlocked tidelands study and mitigate any impacts on the traditional rights of the public to tidelands, as well as any impacts on groundwater levels in certain specially identified sensitive areas.

Directly responding to Moot, the legislation statutorily exempts “landlocked tidelands” from Chapter 91 licensing requirements. Because “landlocked tidelands” are defined in the legislation exactly as they were in the regulations, this practically speaking will return the situation to that which existed pre-Moot. As it also validates the regulations struck down in Moot and grandfathers exemptions granted under those regulations, the legislation should resolve all uncertainties generated by the Moot decision.

The bill goes further than addressing Moot, however, by introducing the concept of a Public Benefit Review into the framework of Chapter 91. Generally speaking, these Public Benefit Reviews are non-binding assessments of the public benefits generated by tidelands projects, which are undertaken by the Secretary of the Executive Office of Energy and Environmental Affairs (Secretary). Public Benefit Reviews are required for projects that also require the filing of an Environmental Impact Report (EIR) under MEPA and they may be required at the discretion of the Secretary for projects that require the filling of an Environmental Notification Form (ENF). Projects not requiring the filling of either an ENF or EIR under MEPA are exempt.

The scope of the Secretary’s charge under the Public Benefit Review is quite broad. It includes considering, for example:

• “The purpose and effect of the development;”
• “The impact on abutters and the surrounding community;”
• “Community activities on the development site;”
• “Environmental protection and preservation;” and
• “The general welfare.”

Upon completion of a Public Benefit Review, the Secretary is required to provide “the determination of public benefit to DEP and to the division of administrative law appeals if there is an appeal from a decision or license issued by DEP.”

A few points bear emphasis regarding Public Benefit Review. First, it is not an additional approval requirement. Rather, they exist only to further the goal of “publishing on the public record a written public benefit determination or the project.” The statute also specifically states such review may not hold up the issuance of Chapter 91 licenses or the completion of the MEPA process. Second, the Public Benefit Review process applies equally to projects actually requiring a Chapter 91 license and projects exempt from Chapter 91 licensing because they are located on “landlocked tidelands.”

The legislation directs the Secretary to promulgate regulations that will establish timelines and procedures for the Public Benefit Review process. In addition, the Secretary is specifically authorized, at the Secretary’s discretion, to combine the Public Benefit Review with MEPA review and to adopt an exemption from the public benefit review process for lands or activities that are deemed to have only a de minimis impact on public rights. There is no deadline for when these regulations must be adopted.

In addition to the foregoing changes to Chapter 91, the legislation also amends MEPA in important ways relevant to the future development of landlocked tidelands. Going forward, ENFs and EIRs prepared for projects located on landlocked tidelands must be accompanied by an analysis of impacts on the public’s rights to tidelands and a proposal for remedial actions that will avoid or mitigate any adverse impact on such rights. This may be viewed as a compromise for those disagreeing with the policy of exempting landlocked tidelands from Chapter 91 licensing. Thus, while some projects will continue to be entirely exempt from traditional Chapter 91 considerations, those meeting MEPA thresholds will be subject to a review, under MEPA, that takes into account many of the same considerations at issue under Chapter 91.

The legislation will introduces special requirements for ENFs and EIRs prepared for landlocked tidelands projects that also happen to be in areas identified by federal, state or local governments as having groundwater elevations that are “a threat to building foundations.” ENFs and EIRs required for projects in such areas must be accompanied by an explanation of impacts on groundwater levels and the remedial actions that will be taken to avoid or mitigate these adverse impacts. This reform is likely directed at growing concerns about groundwater levels in certain filled areas of Boston, such as Back Bay and the South End. Importantly, the remedial measures this legislation requires to be identified in the ENFs and EIRs must be set forth in MEPA Certificates and developers must notify DEP of these conditions, which DEP has the authority to enforce.

Finally, the legislation also amends MEPA by expanding the definition of “damage to the environment” to expressly include “reduction of groundwater levels, impairment of water quality, increases in flooding or storm water flows.” This may be seen as a direct charge to DEP and project applicants to more closely consider these effects as the existing definition is open-ended (includes “any destruction, damage or impairment, actual or probable, to any of the natural resources of the commonwealth”) and already references specific related concerns such as “water pollution,” and the “destruction of seashores…[and] wetlands.” From now on, however, there can be no doubt that these particular concerns are within MEPA’s definition of “damage to the environment.”

Going forward, projects located on landlocked tidelands that are required to file ENFs or EIRs will have to comply with the new requirements regarding the analysis and mitigation of reductions in impact upon traditional public rights to tidelands and groundwater levels. Public Benefit Reviews may also be prepared for these projects as well as for all projects subject to Chapter 91 licensing but it is unclear what effect these Public Benefit Reviews will have on the Chapter 91 or MEPA processes. Clearly, although the worst case scenario of outright Chapter 91 licensing for projects located on landlocked tidelands has been averted, there will be more sorting out in the months and years ahead as the new statutory scheme is tested and evaluated for its effectiveness.

Messrs. Lawlor and Baker are LandLaw associates in the Boston office of the law firm of Robinson & Cole LLP.