===== Thursday, 30 July 2020 14:36

Governor Baker Revises State Permitting Deadlines and Extends Certain State Permits as COVID-19 Pandemic Continues Featured

Written by
Massachusetts Governor Chalie Baker Massachusetts Governor Chalie Baker

On March 24, 2020, Governor Baker issued COVID-19 Order No. 17: “Order Suspending State Permitting Deadlines and Extending the Validity of State Permits”, which, among other things, gave state agencies additional time to act on pending or new permit applications and conduct administrative hearings. This Order applied only to state agencies within or reporting to the Executive Office of Energy and Environmental Affairs or the Executive Office of Housing and Economic Development.

This Order also provided that any timeline giving a constructive approvals or denials of a permit would be suspended until 45 days after the Governor’s March 10, 2020 declaration of a state of emergency due to the COVID-19 Coronavirus. Similarly, the Order suspended and tolled the expiration of a state permit during the state of emergency.

On July 1, 2020, the Governor issued COVID-19 Order No. 42, “Order Resuming State Permitting Deadlines and Continuing to Extend the Validity of Certain State Permits” which explicitly rescinds Order No. 17 in its entirety. However, Order No. 42 covers many of the same issues but decouples many deadlines from the end of the state of emergency and instead provides specific dates.

Timelines that would run and result in constructive approvals and denials no longer will be tolled until 45 days after the end of the state of emergency. Now, state agencies have until August 17, 2020 to act on applications that would have been constructively approved or denied between March 10, 2020 and July 1, 2020. For applications that would have been constructively approved or denied after July 1, 2020, the timeline shall be either August 17, 2020 or the applicable regular statutory or regulatory deadline, whichever is later.

Any specific time period for an agency commence a hearing on an application or appeal was tolled and was to resume 45 days after the end of the state of emergency. Now, all hearings a state agency was required to commence between March 10, 2020 and July 1, 2020 must start on or before either August 10, 2020 or the applicable regular statutory or regulatory deadline, whichever date is later.

Order No. 42 makes similar changes in timeframes for two additional areas. The first is deadlines for an agency to make a decision on a permit application or on an appeal, or to request a superseding order or determination. The second is the deadline for any person aggrieved the decision or final decision of a state agency to file an appeal.

Notably, Order No. 42 does not change the provisions for permit tolling. As with Order No. 17, the expiration date of and any deadline to record an approval issued by a state agency is tolled during the state of emergency. Order No. 42 does, however, provide an example of how to calculate the revised deadline.

Order No. 42 continues to give the state permit granting authority to extend or waive the deadline for complying with a condition in an approval if the inability to comply is due to the state of emergency. However, like with Order No. 17, permit tolling or complying with permit conditions does not apply to a permit holder who was in violation of the terms and conditions of a permit as of March 10, 2020.

Last modified on Thursday, 30 July 2020 14:52
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Senior Associate of the Firm. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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