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Boston Enacts Wetlands Protection Ordinance to Address Climate Change Featured

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On December 23, 2019, the City of Boston joined the almost two-thirds of the Commonwealth’s 351 municipalities in having more stringent requirements for work in and near wetlands, waterbodies, and floodplains. Unlike many of those other municipalities, the explicit purpose of Boston’s wetlands ordinance is to address climate change, through adaptation and building resiliency.

A municipality has the power to enact a wetland ordinance (in a city) or bylaw (in a town) under its Home Rule authority, under the Home Rule Amendment to the state Constitution, as long as the provisions are more stringent than the state Wetlands Protection Act, G.L. c. 131, § 40 (WPA).

Being more stringent often includes regulating a greater geographic area than the WPA. Like many other communities, Boston’s ordinance regulates work proposed in isolated wetlands and vernal pools while treating the 100-foot Buffer Zone as its own wetland resource area.

Boston in its new ordinance creates some new resource areas reflecting its concerns about climate change, including what are termed Inland and Coastal Flood Resilience Zones. The Boston Conservation Commission is given the task of delineating them.

The Coastal Flood Resilience Zone, or CFRZ, is “the area of land beyond the current boundary of land subject to coastal storm flowage [100-year flood plain] or land subject to tidal action that the Commission determines has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to sea level rise (SLR) within approximately the next 50 years.”

The Commission is empowered to delineate the CFRZ on maps published after public hearing and comment. The Commission can divide the CFRZ into sub-zones with different regulatory requirements.

Similarly, the Inland Flood Resilience Zone or IFRZ, is “the area of land beyond the current boundary of land subject to flooding [caused by the 1%-chance storm] that the Commission determines has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years.”

Likewise, the IFRZ is to be delineated on maps published by the Commission and shall be consistent with other climate change planning documents used by other City officials.

The Commission also is given the authority to designate “Extended Riverfront Areas”, which enlarges to 200 feet the otherwise 25-foot wide Riverfront Area; the WPA sets a 25-foot wide Riverfront Area for several specified large cities and densely developed areas.

Procedurally, the Commission must “explicitly consider climate change resilience and impacts” in its decision to approve or deny a permit, by measuring the potential adverse impacts to wetland resource areas both as they currently exist and as are reasonably expected to exist “based on the best available data on the projected impacts of climate change.”

The Commission is cautioned, however, not to use its newfound authority “to prevent beneficial projects whose primary purpose is protection of resource areas and reduction of risk from coastal flooding, inland flooding, extreme weather, sea level rise and other adverse impacts of climate change.” The Commission can enact procedures to advance and expedite such projects.

Applicants before the Commission are to integrate climate change and adaptation planning considerations into their project to promote climate change resilience and promote resource area values. Considerations include sea level rise, increased heat waves, extreme precipitation events, stormwater runoff, changing precipitation patterns and changes in coastal and stormwater flooding.

Within the climate change planning considerations, the Commission may, through regulations or guidelines, require an applicant to address climate equity and environmental justice.

All eyes now turn from the City Council and Mayor to the Conservation Commission to see how it implements its many duties and opportunities under this wetlands protection ordinance.

Boston’s new “Wetlands Protection and Climate Adaptation” ordinance can be found here in Section 7-1.4 of Chapter VII of the City’s Ordinances. Here’s a link to the Mayor’s page concerning its enactment:  https://www.boston.gov/news/mayor-walsh-signs-local-wetland-ordinance

 

McGregor & Legere, P.C. in Boston handles many types of matters for a diversity of legal clients under the state Wetlands Protection Act and municipal wetland bylaws and ordinances like Boston’s.

Read 639 times Last modified on Thursday, 09 January 2020 11:38
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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