Update on Landlocked Tidelands Legislation

November 2007

To view the final statute, Chapter 168 of the Acts of 2007 click here.

Background
In February 2007, the Massachusetts Supreme Judicial Court issued a controversial decision in the Moot vs. DEP case which would require all landlocked tidelands that had previously been exempt from the Chapter 91 licensing process through DEP regulations to now obtain a Ch 91 license. The Court stated that DEP was not given the authority by the Legislature to create such an exemption through regulations. In order for the exemption to remain, the Legislature needed to authorize the existing regulations.

In March, the Governor and EOEEA filed legislation that provided DEP with the statutory authority to exempt landlocked tidelands from the Chapter 91 licensing process. On March 5th, the SJC issued a 180 day stay to allow the Legislature time to respond. In July, the House and Senate each passed their own versions of the bill.

A conference committee was appointed over the summer to negotiate a final version of the landlocked tidelands legislation. On October 25th, the conference committee released its final bill. The House adopted the report on the same day. The Senate enacted the bill on Monday, November 5th. The Governor signed the bill on November 15th.

NAIOP is pleased with the final bill. It preserves the exemption for all landlocked tidelands from the Chapter 91 licensing process. While it does create a new public benefit review process administered by the Secretary of Energy & Environmental Affairs for projects built on tidelands that need an Environmental Impact Report, we believe that this is a fair and balanced compromise that will not hinder economic development projects.

We were pleased that the final bill does not create a new office of Great Ponds & Tidelands under the Executive Office of Administration & Finance. Instead, the EEA Secretary will serve as the Administrator of Tidelands. The Secretary's final public benefit determination will be published on "the public record." The bill also modifies the MEPA process by requiring projects built on landlocked tidelands to identify ways the public can "access use and enjoy tidelands protected by Chapter 91." In addition, the MEPA process is further modified by requiring projects built in communities where low groundwater levels have been identified as a threat to building foundations to identify and commit to taking measures to avoid, minimize or mitigate any adverse impact on groundwater levels. We were also pleased to see that the final language allows elevated roadways to continue to be considered a public way.

NAIOP has been a leader on this issue and we are extremely grateful for the efforts of the following NAIOP members: Paula Devereaux of Rubin and Rudman; Michael Leon of Nutter, McClennen & Fish; Jim Shea of Edwards, Angell, Palmer & Dodge; Chip Nylen of Lynch, DeSimone & Nylen; Jamie Fay of Fort Point Associates; and Jim Major of Allen & Major Associates.

We will continue to keep you posted on any new developments as they occur. For additional information, please call Tamara Small at 781-453-600 ext 5.

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