Municipal Governments Cope with Climate Change Adaptation and Resiliency Using Local Regulations Featured

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Coastal damage related to global climate change. Coastal damage related to global climate change.

Coastal as well as inland communities in Massachusetts increasingly are looking to their local wetland permitting laws and regulations as one place to help build climate change resilience.

About half of the 351 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance (collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act (the “WPA”).

Some of these communities already have provisions that address climate change. Others are contemplating amending their existing bylaws and regulations to do so. Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community. To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA. Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation. It also might mean regulating a greater geographic area than the Act, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland). It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00).

These are but a few of the myriad of ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review.

Marshfield, MA Climate Change FloodingFor instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years. Hingham has a similar requirement, but also applies it to projects proposed in the velocity zone (“V-zone”). Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence” such as from the Intergovernmental Panel on Climate Change be used. Falmouth has one rate (“at least” 1 foot per 100 years) for work in AE-zones and a higher rate (“at least” 2 feet per 100 years) for work in the VE-zone.

As sea levels rise, coastal wetland resource areas are predicted to shift landward. Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain. The lowest floor of a structure in a FEMA-mapped AE-zone must be at least 1 foot above the base elevation, and the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission. Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater. Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Climate Change related flooding at Lake Champlain, NY.Inland communities are also using their wetland permitting programs to build climate change resiliency. The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.”

An applicant must address in a narrative: 1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts. With the introduction of new terms, the Commission added the definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience.”

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance. Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them. For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain. “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible. Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts.

In conclusion, Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities, but are turning to their own wetland regulations.

Read 1575 times Last modified on Wednesday, 15 May 2019 15:44
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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