Areas of Practice

Across the spectrum of environmental law, we offer advice and representation with practical, results-oriented lawyering in the following practice areas...
Category: Areas of Practice

The Office of the Coastal Zone Management (OCZM) within EOEEA administers the CZM Program within the state as authorized by the federal Coastal Zone Management Act (CZMA). This involves promulgating policies and regulations, plus reviewing projects and permits of state agencies for consistency with policies within the coastal zone.

Essentially, the Massachusetts CZM Program "networks" existing constitutional, common law, and statutory authorities of the state in order to accomplish CZM goals.

We are proud of our involvements over the years in the creation, implementation, interpretation, expansion, and eventually statutory codification of the Massachusetts CZM Program. We work for both public and private clients on whether, how and why it applies to them, and what to do about it.

The original five sets of 1978 agency rules issued by EOEEA and its departments (dealing with coastal wetlands, tidelands and waterways, ocean sanctuaries, offshore minerals, and environmental impact reports under the Massachusetts Environmental Policy Act or MEPA, have grown to several more regulatory provisions, governing policies, and the comprehensive Massachusetts Oceans Act.

One of the most important provisos is the obligation, imposed by both state and federal law, to secure a Consistency Determination by the CZM Program for projects and activities that need or seek federal approvals or financial assistance.

The Massachusetts Oceans Act requires state-issued permits, certificates, and other approvals to be consistent with the plan; maintains Division of Marine Fisheries' management and control of commercial and recreational fishing; allows siting of "appropriate scale" offshore renewable energy facilities in state waters; and establishes fund of proceeds from ocean development mitigation fees, appropriations and other monies.

Massachusetts made national news as well as new law in promulgating its first-in-the-nation Massachusetts Ocean Plan. The final version of the Ocean Plan set guidelines for managing, reviewing and permitting proposed uses of state waters.

The Plan deals with and governs state coastal waters at least 0.3 nautical miles seaward of mean high water (excluding most developed harbor and port areas) out to the three-mile limit of state legal control. Within that water area, the Ocean Plan creates three management categories: Prohibited Area (13%), Renewable Energy Area (2%), and Multi-use Area (85%).

OCZM works with coastal communities to develop Municipal Harbor Plans which are voluntary. Such plans prepared by cities and towns, shaped by OCZM, and approved by EOEEA thereafter are to inform and guide EOEA actions that affect the implementation of municipal waterways management program. Cities and towns in our coastal area should be aware of the federal and state regulatory, planning, environmental review, and funding programs. Municipal activities and projects need permissions like any others.

Municipal Harbor Plans, however, can free cities and towns from some state constraints; marine industrial uses are encouraged in state Designated Port Areas; municipalities get preferential treatment in connection with ocean wind facilities under the Ocean Management Plan.

OCZM works jointly with the DEP to encourage Marine Industrial Uses in state-approved Designated Port Areas (DPAs). The idea is to preserve appropriate port infrastructure in established ports and control the type of development that can be located there. There are at least 11 DPAs, including: Beverly Harbor, Chelsea Creek (in Chelsea and East Boston), East Boston, Gloucester Inner River (in Charlestown and Everett), New Bedford-Fairhaven, Salem Harbor, South Boston, and Weymouth Fore River (in Quincy and North Weymouth).

The state Ocean Sanctuaries Act prohibits or restricts specified activities, including wastewater discharges, within designated ocean sanctuaries along the Massachusetts coast. Actually, there are five such Acts protecting the sanctuaries. They are the Cape Cod Ocean Sanctuary, Cape Cod Bay Ocean Sanctuary, Cape and Islands Sanctuary, North Shore Ocean Sanctuary, and South Essex Ocean Sanctuary Acts.

EOEEA is responsible for the care, oversight and control of the ocean sanctuaries, requiring that no activity or development exploit, significantly alter, or otherwise endanger the ecology or the appearance of the ocean, seabed or subsoil with\in the sanctuaries. The agency is directed, however, to balance and integrate the goals of these laws with the aims of other programs for the protection of the public health, safety, welfare and environment. These laws do not supersede or eliminate any other environmental permit requirements. Essentially, the state is a trustee of the resources of the ocean sanctuaries.

Beach access within the coastal zone depends on recorded real estate instruments such as:

  • Deeds, orders of taking, easements, and rights-of-way;
  • Permit conditions such as under the Wetlands Protection Act or the Waterways and Tidelands Statute;
  • Public rights or access dating back to Colonial times;
  • Rights reserved in subdivision approvals; and
  • Common law doctrines governing adverse possession, prescriptive easements, and what are called ancient ways.

The state is empowered to purchase a general right for the public to walk along the wet sand during dawn to duck hours. This right is not effective unless the state acquires it on behalf of the public through a formal eminent domain proceeding involving specific property, with compensation.

Compensation is not required, however, for access that is subject to the historic reserved public rights of fishing, fowling, navigation, and passage over and through the water. Essentially there can be an implied public easement to use the land below the tide for these purposes. Note that these purposes do not include camping, picnicking, or other broad activities or uses.

We have worked for clients on all aspects of the Massachusetts CZM Program since before 1978, as we were involved in reviewing and critiquing CZM programs proposed by New England states to satisfy the federal CZMA requirements and secure federal funding.

 

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