Massachusetts was hit hard by last April’s Nor’easter, leaving cities and towns in the Bay State with millions of dollars in damage caused by inland and coastal flooding. According to the Federal Emergency Management Agency, area roads and bridges, public buildings, parks, other public facilities and private residences all sustained damage. Soon after the devastating storm, the Massachusetts Supreme Court determined that the Massachusetts Department of Environmental Protection had overstepped its authority by exempting thousands of acres of tideland development from licensing under Chapter 91 of Massachusetts General Laws.
The licensing process is costly and includes a time-consuming public review that directly affects development and its impacts on coastal areas. The court decision threatened to overturn development rights on thousands of acres of Massachusetts tidelands and opened the floodgates for important realizations concerning public trust and environmental protection. On Nov. 15, 2007, Gov. Deval Patrick signed a bill to restore exemptions for properties located on filled or landlocked tidelands from Chapter 91, establishing DEP authority, settling inconsistencies concerning titles, expediting development and addressing the suspended public-review process. However, environmental concerns regarding the state’s vulnerable coastline remain. How can Massachusetts protect property-improvement investments from the increasing threats of environmental damage to property?
Private and public tidelands in the state are historically subject to the Public Trust Doctrine, whereby the public retains the right to fish, fowl and navigate in the intertidal zone.
According to the DEP, private tidelands are considered the area between mean low and mean high tides. Property located from mean low tide seaward is considered public or commonwealth tideland. Historically, public and private former submerged lands and tidal flats that lay below the mean high water mark were subject to the public review process promulgated from the Public Trust Doctrine and included in Chapter 91 licensing.
The new law confirms the DEP’s authority to exempt certain tideland developments, located on filled or landlocked properties, from the public review process. The doctrine intends to safeguard waterfront access and provide concerned members of the community a voice in public land-use planning. In practice, this process can temper non-public development on intertidal areas.
The law signed by Patrick was needed to protect the licensing exemption of tidelands that have been filled in and developed over the centuries, and that do not have a meaningful connection or access to the waterfront, but instead possess historical structure and connection to Massachusetts cities. Extending the same exemption to new development projects that may be landlocked but located on protective flood plains can be detrimental to the future of coastal communities. From an environmental standpoint, tidelands provide coastal communities a buffer from storm damage, prevent coastal erosion, facilitate groundwater recharge and are able to absorb excess nutrients before they reach the oceans and estuaries. According to the Massachusetts Coastal Hazards Commission, “erosion and flooding are the primary coastal hazards that lead to the loss of lives or damage to property and infrastructure in developed coastal areas.” Decreased development pressure on tidelands and increased wetland connectivity are integral parts of a healthy coastal environment that supports the region’s economy, safety and overall quality of life.
Working to incorporate wetland restoration into planned infrastructure and real estate projects will be important for the Bay State in the coming years, as development rights are expanded and storm damage becomes more severe. An example of how this is already working in the state is the Buzzards Bay project. Great Eastern Ecology, an ecological consulting firm based in New York City, performed a feasibility assessment for hydrological enhancement and invasive species (for example, Phragmites australis) control for the Winsegansett Marsh part of Buzzards Bay, near Cape Cod. The study had two primary objectives: to reestablish native marsh species and remove Phragmites, and to develop plans to improve tidal exchange from the Winsegansett Marsh to Buzzards Bay. The plans are being realized by the National Oceanic and Atmospheric Administration and the EPA, who have partnered with private landowners, local nonprofits and federal, state and local agencies to fund a demonstration restoration project in the Winsegansett salt marsh. Efforts to increase tidal exchange to small marsh systems like this one and others identified in the Massachusetts Atlas of Salt Marsh Tidal Restrictions should be applied to any landlocked development permitted by the Nov. 15 law.
This is a complicated and regionally unique tale. The spring decision of the Supreme Court ruling provided substantial uncertainty for developers and was a departure from established DEP policy. The Massachusetts coastline is vulnerable to damaging storms and must be protected through voluntary wetland restoration efforts on private land. Hydrological restoration is happening through partnerships throughout the state and reflects a proactive, non-regulatory approach to wetland protection and conservation that should be embraced by the real estate community.
While Patrick’s law exempting certain development on tidelands from licensing requirements provides clarification and simplicity for developers, it goes against the current trends in environmental protection and is, at best, neutral news for existing coastal communities. Tidelands (public, private or otherwise), provide coastal communities invaluable protection from flooding and damage to infrastructure.
