Legal Terrain

Last month, the Massachusetts Department of Environmental Protection (MassDEP) extended the comment period for amendments it proposed in December 2023 to the Massachusetts Waterways Regulation, 310 CMR 9.00. Peter Vetere recently wrote about proposed amendments to the Wetlands Protection Regulations and Stormwater Management Standards intended to address climate change. Today, I’ll dig into the Waterways Regulations, which “protect and promote the public’s interest in” waterfront development.

Massachusetts legislators gave the government a role in protecting against perceived threats of climate change with the Global Warming Solutions Act of 2008, An Act Creating a Next Generation Roadmap for Massachusetts Climate Policy, and an Act Driving Clean Energy and Offshore Wind. In this coastal state, which has natural resources enjoyed by the public and businesses alike, regulators take seriously their roles in ensuring that water-related resources can withstand storm impacts, flooding, and rising sea levels. The concerns are not just local – environmental risks posed by the commonwealth’s coastal exposure were raised in 2022 by credit agency Standard & Poors.

MassDEP created a stakeholder advisory panel to update the Waterways Regulations (310 CMR 9.00) with a focus on increasing resiliency to the effects of a changing climate. After the panel met in February 2022, MassDEP received and shared nine comments from associations representing a variety of stakeholders. It proposed amended regulations oin December 2023. Two public information sessions and two public hearings quickly followed, and MassDEP scheduled three “office hours” to answer stakeholder questions on waterways or wetlands.

Massachusetts claims to have the oldest waterways regulation in the United States. The licensing program established in 1866 embodied the colonial-era Public Trust Doctrine of ensuring public access and benefits for waterfront uses. This doctrine holds that the air, the sea, and the shore belong not to any one person but to the public.  Sean Coffey wrote about the different ways that Massachusetts and Rhode Island use the Public Trust Doctrine to define shorelines.

To protect public rights, Massachusetts General Laws Chapter 91 governs certain “trust lands,” subjecting them to licensing and permitting: filled and flowed tidelands, Great Ponds, and navigable, non-tidal rivers and streams. In modern times, Chapter 91 regulation has been a tool to control developers of commercial or residential structures in trust land because they might otherwise displace traditional maritime industries such as fishing and shipping or interfere with public uses and benefits. Now, these regulations will be implemented to battle a faceless threat—climate change—which endangers waterfront uses with sea level rise, storm surge, and increased precipitation.

Relatively few changes are proposed to the regulatory language of 310 CMR 9, but some may have major impacts:

• License renewals must account for regulations and conditions in effect at the time of renewal. Previously, licenses could be renewed if structures were sound and conformed to original plans.
• Projects must be designed considering the impacts of projected sea level rise throughout the design life of the building, structure, fill, open space, or public areas. Previously, non-water-dependent uses in flood zones had to incorporate historical sea level rise for the design life of buildings; now, even water-dependent uses and uses outside flood zones must incorporate projected future sea level rise for the project.
• Building systems (HVAC, solar) may be relocated to the roof because these elements are now excluded from height calculations.
• New and replacement definitions will improve consistency with wetlands regulations and FEMA terminology (including A Zone, Velocity Zone, and Moderate Wave Action Area).
• For applicants desiring extended-term licenses, projected sea level rise is an explicitly “relevant factor” in their justification for the longer term.

The proposed regulations are designed to harmonize with other climate-focused building requirements.  For example, MassDEP anticipates buildings in FEMA-defined floodplains will be elevated onto piles based on new building codes and pending wetlands program rules for construction in Land Subject to Coastal Storm Flowage.

While it cannot predict the next storm surge or quantify future sea level rise, MassDEP encourages stakeholders to share their predictions for how these waterways licensing proposals reflect preparedness and adaptations relating to climate change. Stakeholders should submit questions in advance for “office hours” sessions, the last of which will be held on April 3.  Written comments may be emailed to dep.waterways@mass.gov with Waterways Resilience Comments in the subject line. More information is available on their website.  And while MassDEP won’t address project- or site-specific questions during the comment period, the attorneys at Burns and Levinson are always available to help with your next waterways project.