MASSACHUSETTS ENVIRONMENTAL LAW SURVEY Gregor I Mc Gregor

MASSACHUSETTS ENVIRONMENTAL LAW SURVEY Gregor I. Mc. Gregor, Esq.

www. mcgregorlaw. com © 2014 The author thanks his law clerks Colleen Walsh (2009), Sarah Herbert (2010), Erin Odell (2011), Andrea Cone (2012), Allison Finnell (2013), and Jess Bardi (2014)

WHERE DO YOU FIND ENVIRONMENTAL LAW? Ø Not in just one book on the shelf of a law library. Ø Not in a single volume of federal or state statutes. Ø Not within one set of published court decisions. Ø Not in one compilation of bylaws and ordinances. Ø Not in one chapter of federal or state regulations.

WHERE SHOULD YOU LOOK FOR ENVIRONMENTAL LAW? Ø Environmental law is any principle or procedure protecting the human environment, controlling pollution, regulating land use, allocating natural resources, conserving cultural resources, or balancing respective rights affecting the environment. Ø It takes the form of government regulations, federal and state statutes, constitutional clauses, local and municipal ordinances and bylaws, permit conditions, contracts, court decisions, common law principles, injunctions and penalties, deeds and easements, recorded restrictions, government policies and plans, essentially anything that is an operative legal document.

HOW DO YOU DEAL WITH ENVIRONMENTAL LAW? ØAppreciate the origins and nature of environmental law. Its roots are ancient, but application modern. It is organic, growing to adapt to new social needs and scientific knowledge. ØRegard environmental law as making problems, opening opportunities, and providing solutions. ØFortunately, environmental law can be learned and applied. ØYour understanding environmental law assures your good judgment to counsel, represent and guide clients in all manner of proceedings and transactions with environmental aspects.

SOURCES OF ENVIRONMENTAL LAW Ø State “police power” protects public health, safety, welfare and morals. Ø Federal “commerce clause” power. Ø Sovereign power of over public resources plus eminent domain. Ø Public trust doctrine for public lands and water areas. Ø Powers of taxing and spending. Ø Power to make contracts. Ø Common law doctrines including nuisance, negligence, trespass and water rights. Ø Implementing statutes and rules. Ø New energy legislation and policy.

A SHORT HISTORY OF ENVIRONMENTAL LAW 1950 s: Common Law Cases 1960 s: Research and Funding Ø Federal grants to states and municipalities Ø States decide how clean to be 1970 s: Permitting and Standards Ø Public concerns: oil spills, rivers catching fire, cancer clusters Ø Federal legislation on clean air, water, waste Ø Environmental Impact Statements Ø Agencies implementing comprehensive regulations 1980 s: Carrots and Sticks Ø Environmental laws became broad and strong Ø Hazardous substances made subject to strict, joint and several, retroactive liability for costs of remediating contamination 1990 s: Interdisciplinary and Multimedia Ø Growth of environmental law slowed—new approaches emerged Ø “Rethinking” or “reinventing” environmental regulations 2000 s: Climate Change and Biodiversity Ø Connecting environmental, land use, energy, and transportation considerations Ø Independent actions by cities and towns using taxing, spending, and police power 2010 s: Sustainability Ø Maintaining the natural environment while allowing both humans and nature to be productive Ø Use of “green” building, siting, construction, operations, utilities, products, technology, and energy

HOW TO APPROACH ENVIRONMENTAL LAW ØGood attorneys, engineers, scientists and environmental consultants advise their clients to be proactive and not reactive. ØAddress the law where it is now and where it is heading. ØUnderstand the meaning of the law and its policy goals. ØMeet legal minimums as well as emerging best practices. ØSee the future of the law by watching evolving science. ØUtilize law, science and policy (and politics) as the key to winning environmental controversies, solving environmental problems, and accomplishing environmental goals.

AGENCY OVERVIEW State Agencies Ø EOEEA is the central environmental agency for the Commonwealth, administering environmental grants, regulations, and enforcement through DEP and other line agencies plus the MEPA and CZM within the Secretariat. Municipal Role Ø Cities and towns maintain primary responsibility for zoning, subdivision control, and other land use controls within their borders, plus public health, emergency management, and Home Rule authority to enact general bylaws and ordinances. Federal Role Ø Federal oversight is provided by the Region 1 office of U. S. EPA, the U. S. Army Corps of Engineers and the Departments of the Interior, Agriculture, and Commerce.

STATE ENVIRONMENTAL AGENCIES Executive Office of Energy and Environmental Affairs (EOEEA) Department of Conservation and Recreation Manages/owns public parks and greenways metro Boston. Manages state-owned forests and parks. Division of Water Supply Protection Department of Agricultural Resources Manages agriculture, silviculture, and aquaculture activities. Pesticide Board. Department of Environmental Protection Enforcement and regulation of environmentally harmful activities Department of Fish and Game Manages and conserves fisheries and wildlife resources, including plants and natural habitats Division of Energy Resources Implements energy policy and regulates energy usage and efficiency Department of Public Utilities Responsible for the structure and control of energy in Massachusetts

MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION Mission: Protecting and enhancing the state’s natural resources (air, water, and land) in order to provide for the health, safety, welfare, and enjoyment of the citizens and the protection of their property. Approach: Identifying important natural resources, planning for implementing protection programs, using permitting and enforcement to prevent pollution, cleaning up contaminated sites, helping people understand the environment, providing financial and technical assistance for cities and towns, and conducting research and analysis.

MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION Organization: Headquartered in Boston with four regional offices. Top DEP officials include: Commissioner; General Counsel; Counsel to the Commissioner; Deputy Commissioners for Policy and Program Development, Operations, Administration, and Municipal Assistance; Assistant Commissioners for Resource Protection, Waste Prevention, and Waste Site Cleanup; Director of Public Affairs Program Areas: Drinking Water, Municipal Assistance, Stormwater, Wastewater Watershed Management, Wetlands, Recycling, Air Quality, Hazardous Waste, Permitting, Emissions

MUNICIPAL BOARDS AND OFFICIALS Ø The 351 cities and towns in Massachusetts have primary responsibility for subdivision control, zoning, land use planning, and other requirements within their borders. Ø Massachusetts is a Home Rule jurisdiction so municipalities have power to enact their own legislation without advance state approval. Ø All 351 municipalities have created Conservation Commissions with power to regulate many wetlands activities. Other municipal regulations may cover: septic systems; operation of landfills; chemical disclosures; underground storage tanks; and erosion control. Ø Regional land use bodies include: Cape Cod Commission; Martha’s Vineyard Commission; Town/County of Nantucket.

FEDERAL AGENCIES Ø Federal environmental protection for New England is provided by the Region 1 office of the U. S. Environmental Protection Agency (EPA), based in Boston. EPA administers federal clean air, clean water, hazardous waste, and other permit programs. Ø Region 1 jurisdiction covers New England: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Ø U. S. Departments of the Interior and Agriculture, and Army Corps of Engineers also administer federal programs.

PROGRAMMATIC AREAS from A to Z • • – – – • Agriculture/Animal Feedlots Air Pollution Archeological Resources Brownfields Climate Change Coastal Zone Common Law Nuisance Negligence Trespass Conservation Restrictions/Easements • Dams/Reservoirs • Drinking Water • Earth Removal • • • • Emergency Management Eminent Domain/Condemnation Endangered Species Energy Efficiency/Conservation Energy Facility Siting Energy Transmission Environmental Impact Review Erosion/Sedimentation Control Farms, Farming and Farmland Fish and Game Fisheries and Shellfish Floodplains Forests and Trees Ground water

PROGRAMMATIC AREAS from A to Z • • • – – – – • Hazardous and Toxic Materials Hazardous Waste Cleanups Hazardous Waste Management Historic and Cultural Sites/Structures Housing Policy/Projects Indoor Pollution Lead Paint Radon Urea Formaldehyde Insulation No Smoking Asbestos Mold Sick Buildings Mining and Minerals • – – – • • Outdoor Pollution Noise Lighting Blasting Odors Vibration Open Space Parklands and Reservations Pesticides Petroleum Products Public Lands and Water Areas Radioactive Materials Regulatory Takings Scenic Resources

PROGRAMMATIC AREAS from A to Z • • • Sewage and Septic Systems Smart Growth Solid Waste Facilities/Siting Solid Waste/Cleanup Storage Tanks Stormwater Streets, Roads and Highways Subdivision Control Taxation Telecommunications • Tidelands and Waterways • Toxic Substances • Water Bodies • Water Supply • • • Water Pollution Water Rights Wetlands Wilderness Wildlife Zoning

PROGRAMMATIC AREAS from A to Z AIR POLLUTION State Ø DEP’s Division of Air Quality Control Ø Regulates new and existing emissions of pollutants, including noise and odor Ø Requires registration and compliance inspections of large sources Ø Establishes ambient air quality standards Ø Promulgates state implementation plan (SIP) under the federal Clean Air Act Ø Imposes prohibitions and standards on asbestos Ø Requires motor vehicle emission inspections and maintenance Ø Divides the state into Air Pollution Control Districts

PROGRAMMATIC AREAS from A to Z AIR POLLUTION State Ø Principal Massachusetts law regulating air pollution Ø M. G. L. c. 111, §§ 2 B, 31 C, 142 A 142 N Ø Authorizes DEP to regulate sources of air pollution, order cessation of violations, and enforce against violators Ø Gives local boards of health authority to regulate air pollution Ø Principal Massachusetts regulations under the air pollution statute Ø 310 CMR §§ 6. 00, 7. 00, 8. 00 Ø Section 6. 00 codifies NAAQS promulgated by EPA, Section 7. 00 provides detailed regulations of mobile and stationary sources of air pollution, and Section 8. 00 authorizes DEP to deal with air pollution emergencies Ø These laws and rules apply in most of their particulars to cities and towns, relative to stationary sources, vehicles and facilities. Ø The definition of air is “atmosphere” Ø Indoor air is not regulated, with the exception of asbestos Ø Odor, noise, and GHG emissions have been increasingly regulated in recent years

PROGRAMMATIC AREAS from A to Z AIR POLLUTION State Ø Regional Greenhouse Gas Initiative (RGGI) Ø GHG emissions are regulated under the Energy Law of the state. Ø Cap and trade program Ø Applies to fossil fuel fired units serving electricity generators with nameplate capacity of 25 mega. Watts or more. Ø Ten states have agreed to cap emissions at 188 million tons of CO 2 per year from 2009 to 2014, and then reduce the cap by 2. 5 percent each year for the next four years. Ø Massachusetts v. EPA, 127 S. Ct. 1438 (2007) Ø Supreme Court held that states have standing to sue Ø Ruled that greenhouse gases are pollutants under the Clean Air Act and strongly encouraged the EPA to regulate them. Ø Mandatory Reporting of Greenhouse Gases Rule – final rule issued Sept. 22, 2009 Ø Suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25, 000 metric tons or more per year of GHG emissions

PROGRAMMATIC AREAS from A to Z AIR POLLUTION Local Ø Most enforcement is done by the state, but local officials, such as police departments, fire departments, boards of health, and building inspectors have the authority to enforce air pollution control laws and regulations. Ø Municipalities have authority, under M. G. L. c. 111, § 31 C, to adopt air pollution control programs including: Ø the power to regulate emissions of smoke, particulate matter, soot, cinders, ashes, toxic and radioactive substances, fumes, vapors, gases, industrial odors, and dusts which constitute a nuisance or danger to public health or which impair public comfort and convenience. Ø The local requirements are administered by the board of health or other authority established for this purpose by vote. Ø Local health regulations must be presented at a public hearing and provided to DEP.

PROGRAMMATIC AREAS from A to Z AIR POLLUTION Federal Ø Under the Clean Air Act, EPA sets limits on certain air pollutants; including emissions of air pollutants coming from sources like chemical plants, utilities, and steel mills. Ø These limits are promulgated as the national ambient air quality standards (NAAQS) for common air pollutants, including: Ø Ø Ø Ozone Particulates Carbon monoxide Sulfur dioxides Nitrogen oxides Lead Ø For each pollutant, EPA sets ‘primary’ standards to protect public health and ‘secondary’ to protect public welfare.

PROGRAMMATIC AREAS from A to Z AIR POLLUTION Federal Ø Title V of the CAA requires each state to establish a federally approved operating permit program for all major sources subject to federal emission standards. Ø State issued permits must incorporate all state and federal requirements applicable to each major source into one document, which is subject to EPA review and approval. Ø Massachusetts’ permit program is implemented through 310 C. M. R. pt. 7. 00, app. C. Ø The “Tailoring Rule” sets GHG emission standards triggering permit requirement under New Source Review Prevention of Significant Deterioration (PSD) and Title V operating permits for new and existing facilities. Ø Phase 1: January 2011 June 2011 Ø Applied only to those sources already subject to permitting requirements for sources other than GHGs Ø Phase 2: July 1, 2011 June 30, 2013 Ø Subjects sources emitting at least 100, 000 tpy of carbon dioxide equivalent to Title V permitting requirements, even if such requirements would not apply based on emissions of any other pollutant. Ø Phase 3: Continues to Focus Permitting on the Largest Emitters Ø EPA issued a final rule that retains the GHG permitting thresholds

PROGRAMMATIC AREAS from A to Z AIR POLLUTION Federal Ø Pending Rule on Section 111(d) of the Clear Air Act Ø Proposal requires state specific emission rate based carbon dioxide goals for existing stationary sources and guidelines for the development, submission, and implementation of the state plans. Ø EPA considered each state’s fuel mix, its electricity market and numerous other factors to ensure each state’s goal reflects its unique characteristics. Ø EPA believes this is an important step toward achieving GHG emission reductions in order to combat climate change. Ø By 2030, the proposed rule would achieve carbon dioxide emission reductions equal to 30% of 2005 emission levels from the power sector.

PROGRAMMATIC AREAS from A to Z BROWNFIELDS Ø The term Brownfields refers to lands often in urban or older suburban areas which, for reasons of real or perceived contamination, have remained abandoned or underused. Ø This is because developers choose to build on comparatively pristine land elsewhere, often in less developed suburban or rural areas. Similarly, lenders have been reluctant to finance projects that may involve the risk of environmental liability. Ø The source of the concern is the federal Superfund statute, which imposes strict, joint and several, and retroactive liability for hazardous substances in the environment, and the similar Massachusetts Superfund statute, G. L. c. 21 E.

PROGRAMMATIC AREAS from A to Z BROWNFIELDS Ø The Massachusetts Brownfields Act Ø Incorporated into state Superfund statute. Ø Purpose is to attract reluctant parties to undertake the remediation and redevelopment of contaminated sites, reducing development pressure on the relatively pristine Greenfields. Ø Provides financial incentives, including tax breaks, loans, and grants for cleanup activities. Tax credits of 25% of cleanup costs are available for sites with future Activity an Use Limitations (AULs), or tax credits up to 50% are available for sites that are cleaned up to the point that no AULs are required.

PROGRAMMATIC AREAS from A to Z BROWNFIELDS Ø The Massachusetts Brownfields Act Ø Establishes a Redevelopment Access to Capital program containing $15 million for loans guaranteed to businesses or individuals that clean up brownfields sites and a Brownfields Redevelopment Fund which contains $30 million in grant money for economically distressed areas. Ø Offers release from liability to adjacent property owners and provides protection to secure lenders, redevelopment authorities, and community development corporations. In so doing, it benefits municipalities, as well as many other types of property owners and operators, who did not cause or contribute to the contamination, such as innocent purchasers, tenants and downgradient property owners.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Coastal Zone Management Program Ø Administered by the Office of Coastal Zone Management Ø Involves promulgating policies and regulations, plus reviewing projects and permits of state agencies for consistency with policies within the coastal zone. Ø Essentially, the Massachusetts CZM Program “networks” existing constitutional, common law, and statutory authorities of the state in order to accomplish CZM’s goals. Ø One of the most important provisos for municipalities is the obligation to secure a Consistency Determination by the CZM Program for projects and activities that need or seek federal approvals or financial assistance.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Coastal Zone Management Program Ø Beach access within the coastal zone depends on recorded real estate instruments such as: Ø Deeds, orders of taking, easements, and rights of way; Ø Permit conditions such as under the Wetlands Protection Act or the Waterways and Tidelands Statute; Ø Public rights or access dating back to Colonial times; Ø Rights reserved in subdivision approvals; and Ø Common law doctrines governing adverse possession, prescriptive easements, and what are called ancient ways.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Coastal Zone Management Program on a Local Level Ø Cities and towns in our coastal area should be aware of the federal and state regulatory, planning, environmental review, and funding programs. Ø Municipal activities and projects need permission like all other action. One proviso is the obligation to secure a consistency determination from the EOEEA CZM program for projects and activities needing or seeking federal approvals or financial assistance. Ø CZM works with coastal communities to: Ø Develop municipal harbor plans which can free them from some state constraints Ø Encourage marine industrial uses in state designated port areas Ø Ensure municipalities get preferential treatment in connection with ocean wind facilities under the Ocean Management Plan, which more broadly deals with state oversight, coordination, planning and policy for the state’s ocean resources.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Office of Coastal Zone Management Ø Within EOEEA and administers the CZM Program within the state as authorized by the federal Coastal Zone Management Act. Ø Works with coastal communities to develop Municipal Harbor Plans which are voluntary. Such plans prepared by cities and towns, shaped by CZM, and approved by EOEEA thereafter are to inform and guide EOEEA actions that affect the implementation of the municipal waterways management program. Ø Works jointly with DEP to encourage Marine Industrial Uses in state approved Designated Port Areas (DPAs). The idea is to preserve appropriate port infrastructure in established ports and control the type of development that can be located there. Ø There at least 11 DPAs, including: Beverly Harbor, Chelsea Creek (in Chelsea and East Boston), East Boston, Gloucester Inner River (in Charlestown and Everett), New Bedford Fairhaven, Salem Harbor, South Boston, and Weymouth Fore River (in Quincy and North Weymouth).

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Massachusetts Oceans Act Ø Requires state issued permits, certificates, and other approvals to be consistent with the Ocean Plan Ø Maintains Division of Marine Fisheries’ management and control of commercial and recreational fishing Ø Allows siting of “appropriate scale” offshore renewable energy facilities in state waters Ø Establishes fund of proceeds from ocean development mitigation fees, appropriations and other monies

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Ocean Sanctuaries Act Ø Prohibits or restricts specified activities, including wastewater discharges, within designated ocean sanctuaries along the Massachusetts coast. Ø There actually five such Acts protecting the sanctuaries. They are the Cape Cod Ocean Sanctuary, Cape Cod Bay Ocean Sanctuary, Cape and Islands Sanctuary, North Shore Ocean Sanctuary, and South Essex Ocean Sanctuary Acts. Ø EOEEA’s Role Ø Responsible for the care, oversight and control of the ocean sanctuaries, requiring that no activity or development exploit, significantly alter, or otherwise endanger the ecology or the appearance of the ocean, seabed or subsoil within the sanctuaries. Ø Directed to balance and integrate the goals of these laws with the aims of other programs for the protection of the public health, safety, welfare and environment. Ø These laws do not supersede or eliminate any other environmental permit requirements. Essentially, the state is a trustee of the resources of the ocean sanctuaries.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø Massachusetts made national news as well as new law in promulgating its first in the nation Massachusetts Ocean Management Plan. The final version of the Plan set guidelines for managing, reviewing and permitting proposed uses of state waters. Ø The Plan deals with and governs state coastal waters at least 0. 3 nautical miles seaward of mean high water (excluding most developed harbor and port areas) out to the three mile limit of state legal control. Within that water area, the Plan creates three management categories. Ø The Oceans Act of 2008 requires EOEEA/CZM to update the Ocean Management Plan every five years. The first formal amendment was proposed in September 2014 and is open for public comment until Nov. 25.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø 2014 Draft of the Ocean Management Plan Ø This is the first formal amendment of the Commonwealth’s Ocean Plan, released in December 2009 under the Oceans Act of 2008. Ø The 2009 Ocean Plan established protections for critical marine habitat and important water dependent uses in the Massachusetts Ocean Planning Area and set siting and performance standards for specific ocean based development. Ø Given progress on wind energy in federal waters and limited development interest in state waters, the provisional commercial scale wind areas have been removed from the Ocean Plan’s Management Areas map. Ø Changes are being proposed for six of the twelve spatial area maps of SSU resources identified and mapped in the 2009 Ocean Plan, and a new, modified SSU resource is being proposed for regionally critical sea duck habitat. Ø Changes will advance pro active planning and siting of transmission corridors to bring renewable energy from the projects in federal waters across state waters to landside grid tie ins. Ø Changes will advance the siting of potential areas of sand resources for beach nourishment by integrating spatial data and information on ocean sediments with maps of SSU resources areas and other exclusionary criteria.

PROGRAMMATIC AREAS from A to Z OCEAN PLAN MAPS: Ø THREE MANAGEMENT AREAS: Ø Prohibited Area (13%): Cape Cod Ocean Sanctuary Ø Renewable Energy Area (2%): designated for commercial wind energy facilities Ø Multi use Area (85%): uses, activities and facilities allowed by the Ocean Sanctuaries Act Ocean Act and Ocean Plan legally do not govern commercial fisheries (by an exemption in the Act) or pending Cape Wind project (by federal jurisdiction)

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø The state is empowered to purchase a general right for the public to walk along the wet sand during dawn to dusk hours. This right is not effective unless the state acquires it on behalf of the public through a formal eminent domain proceeding involving specific property, with compensation. Ø Compensation is not required, however, for access that is subject to the historic reserved public rights of fishing, fowling, navigation, and passage over and through the water. Essentially there can be an implied public easement to use the land below the tide for these purposes. Note that these purposes do not include camping, picnicking, or other broad activities or uses.

PROGRAMMATIC AREAS from A to Z COASTAL AND OCEAN LAW Ø MA Ocean Management Plan and Energy Ø The Plan created two designated wind energy areas, and gave the seven Regional Planning Agencies (RPAs) legal ability to define an appropriate scale of renewable energy projects in state waters of member communities. Ø ‘Appropriate scale’ includes protecting the interests of fishing, fowling, and navigation; ensuring public safety; and minimizing incompatibility with existing uses and visual impacts. Ø The Plan set aside legal areas for community scale renewable energy projects, allocating the number of turbines to each RPA on a sliding scale based on shoreline length and coastal water area. Ø The Plan also requires that the project enjoy host community endorsement and that the community gains direct economic benefits, in energy, royalties, or other municipal improvements.

PROGRAMMATIC AREAS from A to Z COMMUNITY PRESERVATION ACT Ø Any city or town may establish a special Community Preservation Act fund that may be appropriated and spent for certain open space, historic resources, and affordable housing purposes. To establish a fund, a community must accept the statute. This requires a majority vote of town meeting or city council and voters at the next regular municipal of state election. M. G. L. c. 44 B. Ø The primary source of revenue is a property tax surcharge of up to 3 percent that would be assessed on each parcel of taxable real estate within the community. These amounts are not subject to the levy limitations of Propositions 2 ½. The second source of revenue is matching distributions or the state’s Massachusetts Preservation Trust Fund, also created by the act. For each fiscal year, the city or town must spend or reserve at least 10 percent of the annual revenues in the local funds for each of the statute’s community preservation purposes – open space, historic resources, and affordable housing. Many cities and towns adopted the Community Preservation Act, imposing surcharges ranging from 1 percent to 3 percent. Guidelines are available from the state Department of Revenue (DOR).

PROGRAMMATIC AREAS from A to Z http: //communitypreservation. org/CPA-map-8. 1. 14. pdf

PROGRAMMATIC AREAS from A to Z COMMUNITY PRESERVATION ACT Ø In addition to the Community Preservation Act, cities and towns may apply for a number of open space grants through the Division of Conservation Services (DCS) in the EOEEA. Funds provided by these grants are intended for use in the acquisition, reacquisition, and renovation of open space DCS programs include the Massachusetts Parkland Acquisitions and Renovations for Communities Program (PARC), Massachusetts Land Water Conservation Fund, and the Conservation Partnership Grant. Ø Ø Land Conservation Incentives Act The Act took effect January 1, 2011 providing a tax credit for donations of certain land to land trusts or public conservation agencies resulting in permanent protection of drinking water supplies, wildlife habitat and biological diversity, scenic and cultural values, or agricultural and forestry production. Tax credit is valued at 50% of the fair market value of the gifted land.

PROGRAMMATIC AREAS from A to Z CONSERVATION RESTRICTIONS Ø CRs given to a local conservation commission or charity within the community must be approved by the municipal selectmen or city council. Ø Cities and towns can be a party to conservation restrictions. These voluntary agreements are between the landowner and either a government body or qualified charitable organization, by which the owner covenants to keep land primarily in its undeveloped condition. Ø The CR is in a recorded instrument following a form approved by EOEEA. It may run in perpetuity or a period of years. To be effective, a CR given to a city or town, or to a charity within the community, must be approved by the selectmen or city council. Ø The Conservation Restriction Act Ø Encourages and facilitates recordable, enforceable promises not to develop property, which is to be left substantially in its natural condition. These can be bought and sold, donated, or bequeathed. The Act, G. L. c. 184, §§ 31 33, governs CRs, Agricultural Preservation Restrictions, and Historic Preservation Restrictions. By virtue of the Act, the municipal assessors are required to take account of the restrictions imposed when assessing a property.

PROGRAMMATIC AREAS from A to Z CONSERVATION RESTRICTIONS Ø Many individual statutes protect public properties. These include parklands, playgrounds, city or town forests, cemeteries, and shore reservations. G. L. c. 45, §§ 3, 14, 19, 21, 23 A. Farmland, whether public or private, enjoys several protections. Likewise, forests and trees (including the Public Shade Tree Act, G. L. c. 87, § 1; G. L. c. 40, § 15 C). Ø The Scenic Mountains Act is applicable within Berkshire County only, allowing municipalities at local option to adopt the statute to regulate activities on land at higher elevations. G. L. c. 131, § 39 A. Ø In addition to the statutes governing such public properties or their open space characteristics, be sure to consult the provisions in the Massachusetts Constitution protecting public lands from ill considered disposition or change in use. Article 97 of the Amendments of the Massachusetts Constitution.

PROGRAMMATIC AREAS from A to Z DEP REGULATORY REFORM Ø Ø Ø Ø Asbestos Standards and Procedures – 310 CMR 7. 15 Greenhouse Gas Trading Programs (RGGI) – 310 CMR 7. 70 Land Application of Wastewater Sludge and Septage – 310 CMR 32. 00 Landfills, Transfer Stations, and Other Solid Waste Facilities – 310 CMR 19. 000 Operation Certification requirements promulgated by the Board of Certification of Operators of Wastewater Treatment Facilities – 257 CMR 2. 00 Operation, Maintenance, and Pretreatment Standards for Wastewater Treatment Works – 314 CMR 12. 00 Permitting Procedures for Ground, Surface and Reclaimed Water Discharges – 314 CMR 2. 00 Sewer connection and extension permitting – 314 CMR 7. 00 Superfund Oil and Hazardous Materials Under 21 E – 310 CMR 4. 0000 Surface Water Quality Standards – 314 CMR 4. 00 Title 5, governing septic systems – 310 CMR 15. 000 Water Quality Certification – 314 CMR 9. 00 Waterways – 310 CMR 9. 00 Wetlands Protection – 310 CMR 10. 00

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø No building permit can issue for the construction of a building which would necessitate the use of water in the building, unless a supply of water is available from either a public or private water system. Ø In addition, private well drillers must be registered annually and must submit reports about the wells they have drilled. Ø Although many towns still rely, in part, on private wells, most towns in Massachusetts are served by one or more public water supply systems, from municipal wells, reservoirs, or combination. Ø A public water supply is defined as a system that has at least 15 service connections, or regularly serves an average of 25 or more people at least 60 days a year. This is the threshold for regulation by the federal Safe Drinking Water Act.

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø DEP’s Authority Ø Monitoring and enforcing water quality standards for public water supplies and approving sources of water, water systems, and treatment facilities. Ø Approval of regulations for new sources include requirements for controlling land use near the wells in order to protect the water quality. Ø Regular testing of public water supplies for contaminants (the levels are set by federal law. ) Ø If any water supply fails to meet the standards for drinking water safety and quality, DEP can require treatment or direct that the public be notified. Ø In addition, water commissioners or selectmen acting as such, may impose additional controls on a water system, subject to bylaws or any rules and regulations approved by the town. M. G. L. c. 41, § 69 B.

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø DEP Management Ø If a water supply fails the standard, DEP can require treatment or public notification. Water commissioners, or selectmen acting as such, may impose additional controls, subject to bylaws or town rules. M. G. L. c. 41, § 69 B. Ø Local boards of health regulate private wells, and DEP has no direct authority, but assists at their request. Local boards of health promulgate well regulations, which are available at the MA Association of Health Boards (MAHB) and the MA Association of Health Officials (MAHO). Ø DEP has extensive authority to protect ground water from pollution. M. G. L. c. 21, §§ 26 53 DEP approval is needed to discharge most pollutants, including sewage, commercial, industrial, and agricultural waste, or runoff. Ø Under the Water Management Act, M. G. L. c. 21 G, DEP manages ground and surface water together as a statewide resource, and deals with water supply shortages and emergencies. Each community must have a water resources management plan that incorporates conservation standards based on guidelines of the Massachusetts Water Resources Commission.

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø Ø Ø Ø DEP’s Division of Water Quality Implements federal Safe Drinking Water Act and similar state laws Approves new public wells and reservoirs Enforces the state’s Maximum Contaminant Levels Mandates monitoring of water supplies Requires protection of wellhead zones Evaluates projects with water supply impacts

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø State law requires that each public water supply (municipality or district) have a state Water Management Act permit from DEP authorizing the amount of water available to th municipality. Ø DEP has grant programs for land acquisition, addressing contamination problems, and constructing filtration plants. Ø Private wells are under the jurisdiction of local boards of health. Ø Owners of buildings that need a source of water for which a municipal water supply is not available must receive a permit from the board of health certifying that there is an adequate supply of potable water at the site. Ø Although DEP provides boards of health with assistance at their request, the agency has no direct authority over the regulation of private wells. Ø Some local boards of health have promulgated regulations, and information is available from the Massachusetts Association of Health Boards.

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø On A Local Level Ø Municipalities must have a Water Management Act permit, issued by DEP, authorizing th amount of water available to the municipal water supply. DEP offers grant programs for acquiring land, addressing contamination, and constructing filtration plants. M. G. L. c. 21 G. Ø Except for com munities receiving water service from the Massachusetts Water Resources Authority (MWRA), any town may vote to establish and operate its own water supply and distribution system. M. G. L. c. 40 and c. 39 A. Towns may purchase water from private companies or from other communities. Ø Towns with a public water supply may create a board of water commissioners of three members, or the selectmen may be authorized to act as the board. In recent years, several towns with separate water commissioners and sewer commissioner have combined these boards to create a water and sewer commission. M. G. L. c. 40 N.

PROGRAMMATIC AREAS from A to Z DRINKING WATER Ø On A Local Level Ø Towns also use the legislative "special act" process to create municipal water departments and combined water and sewer commissions. Ø Towns with their own water systems may construct and maintain dams, wells, reservoirs, pumping and filtration plants, buildings, stand pipes, tanks, fixtures and other structures, and purification and treatment plants. The cost of purchasing, developing, and enlarging public water supplies can be financed through the issuance of bonds. Ø A community bills the users of water, based on consumption, and the costs of maintaining and operating the system. In recent years, communities have adopted "enterprise funds, " (M. G. L. c. 44, § 53) to guarantee that the revenue received for services is sufficient to meet the operation costs and capital expenditures of the water and/or water and sewer department.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø Energy Facility Siting Board (EFSB) supervises a mandatory economic and environmental review and evaluation of alternative sites or routes with some authority to override local obstacles. G. L. c. 164, §§ 69 G 69 S. Ø Special siting approval procedures apply to new or expanded electric generating facilities, transmission lines, and natural gas pipelines.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø The Global Warming Solutions Act (GWSA) made Massachusetts one of the first states with a comprehensive program addressing climate change, including Ø Greenhouse gas (GHG) reduction goals by 2020 and 2050 Ø The Climate Action Plan, setting the 2020 limit at 25 percent below 1990 GHG emission levels Ø The Clean Energy and Climate Plan for 2020, containing the measures to meet the limit. Ø The Climate Protection and Green Economy Act requires monitoring, reporting and regulating of GHG emissions with a regional greenhouse gas registry.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø The Global Warming Solutions Act (GWSA) Ø Existing programs in energy such as the Regional Greenhouse Gas Initiative (RGGI) and the Renewable Portfolio Standard are to be supplemented by efforts to obtain clean energy by importing Canadian hydropower and through a proposed Clean Energy Performance Standard requiring electricity suppliers to favor lower and no emissions sources of electricity. Ø RGGI is the first mandatory, market based effort in the United States to reduce greenhouse gas emissions. Nine Northeastern and Mid Atlantic states have capped and will reduce CO 2 emissions from the power sector 10% by 2018. States sell nearly all emission allowances through auctions and invest proceeds in consumer benefits: energy efficiency, renewable energy, and other clean energy technologies.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø The Global Warming Solutions Act (GWSA) Achievements Ø According to MA’s Energy Efficiency Advisory Council the state’s first Three Year Energy Efficiency Plan (2010 to 2012) saved 2, 393 GWh and 37. 6 million therms of energy and returned $4 billion in net benefits on an investment of $1. 5 billion. The second Three Year Plan (2013 to 2015) is expected to return a net cost savings of $6 billion. Ø MA’s consistent gains in energy efficiency led the American Council for an Energy Efficient Economy (ACEEE) to rank MA #1 in energy efficiency for the third year in a row.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø Green Communities Act (2008) Ø Promotes expansion in energy efficiency, development of renewable energy resources, new greener state building code, renewable energy installations, technology innovation, and utility bill savings. Ø Requires by 2020: Ø At least 25% of state's electric load met with energy efficiency, load management, demand response, and customer heat/power generation Ø At least 20% of state's electric load met with new, renewable and alternative energy generation. Ø Target of 10% of fossil fuel use in buildings over 2007 Ø Establishes: Ø Regional Greenhouse Gas Initiative (RGGI) Auction Trust Fund: 80% of auction proceeds go to energy efficiency programs Ø Green Communities Program which provides cities and towns with energy efficiency and renewable energy opportunities.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø Renewable Portfolio Standard (RPS) Ø The GCA increases the requirement on utilities and other electricity suppliers to procure a certain amount of power from new renewable sources by an additional 1% of sales per year, rising from 4% in 2009 to 15% in 2020, 20% in 2025, etc. Ø DOER determines the percentage of renewable energy that must be obtained from new on site generation (PV) less than 6 MW in size (per land parcel). In 2014, the solar carve out minimum standard for utilities is 0. 9481% of its total retail load. * Ø To qualify for a Class I new Renewable Generation Unit, the supplier must receive electricity production from a facility that began commercial operation after 1997 and generates electricity using any of the following technologies: Ø Solar photovoltaic; solar thermal electric; wind; small, low impact hydropower; landfill methane and anaerobic digester gas; marine or hydrokinetic energy; geothermal energy; and/or advanced low emissions biomass. *http: //www. mass. gov/eea/energy-utilities-clean-tech/renewable-energy/solar/rps-solar-carve-out/current-status-of-the-rps-solar-carve-out-program. html

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø Class II RPS Ø GCA created a Class II of renewable energy resources subject to minimum mandatory procurement Ø Class II includes generating sources that began commercial operation prior to 1998 from a variety of renewable energy sources, including solar, wind, ocean; fuel cells; landfill gas; small hydroelectric facilities that meet certain standards; low emission biomass; and geothermal. Ø A sub class of Class II requires a minimum mandatory procurement from waste to energy facilities in MA; wherein revenue from this procurement supports recycling programs in the Commonwealth.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø The Green Jobs Act Ø The Act created the Massachusetts Clean Energy Center (Mass. CEC) to accelerate job growth and economic development in MA’s clean energy industry. Mass. CEC annually assesses MA’s clean energy industry. The 2013 Report studied: job growth, revenue, technology growth, business climate, capital and finance, and workforce composition.

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø EOEEA 2013 Massachusetts Clean Energy Industry Report Ø 79, 994 employees hold clean energy positions in 5, 557 Firms ØThese are 1. 9% of MA’s workforce, an 11. 8% employment growth rate in 2013 ØThe report projects 88, 874 clean energy jobs, an 11. 1% growth rate, for 2014. http: //images. masscec. com/uploads/attachments/2013/09/Mass. CEC_2013_Industry. Rpt. pdf

PROGRAMMATIC AREAS from A to Z ENERGY LAW Ø Green Communities Act Map http: //www. mass. gov/eea/docs/doer/green-communities/grant-program/map-summary-green-communities. pdf

PROGRAMMATIC AREAS from A to Z ENFORCEMENT PROCEDURES DEP Enforcement ØInitial enforcement actions are undertaken by DEP Regional Office inspectors and are typically initiated by agency inspections, citizen complaints, or as a follow up to reports from regulated facilities. ØThe most common action is a letter from DEP – a Notice of Non Compliance (NON) – requiring a response describing how the violator intends to remedy the violation. ØWhen a NON is not sufficient, DEP will issue an Administrative Enforcement Order requiring specific actions by specified deadlines and providing the violator opportunity for an adjudicatory hearing.

PROGRAMMATIC AREAS from A to Z ENFORCEMENT PROCEDURES Ø DEP may impose administrative penalties – civil money fines – in Penalty Assessment Notices (PANs). G. L. c. 21 A, § 16. Ø Prior to imposing an administrative penalty, DEP usually must first provide a NON to the violator and an opportunity to correct the violation (there are exceptions). If not corrected, nor reasonable efforts made, then DEP issues a PAN. Ø Four exceptions allow DEP to issue a PAN without a NON: 1) Violation significantly impacts public health, safety, welfare or environment; 2) Violation is willful and not the result of error; 3) Violation consists of failure to promptly report to DEP hazardous spills; or 4) Violation is part of a pattern of noncompliance. Ø Amount of the administrative penalty may be up to $50, 000 per day for major violations, or, up to $1, 000 per day for minor violations. Ø Alleged violator may appeal the PAN to a DEP Hearing Officer and then to the superior court under the APA, as long as the amount of the contested penalty is placed in an interest bearing escrow account.

PROGRAMMATIC AREAS from A to Z ENFORCEMENT PROCEDURES Attorney General Enforcement ØCivil litigation is conducted by the Attorney General (AG) on behalf of DEP and other state agencies or on the AG’s own initiative and is appropriate to compel compliance with a procedural requirement or to permit condition or forbid certain activities. ØCriminal prosecution is conducted by the AG or the District Attorney’s Office to punish violations, prevent serious threats to public health and safety, or compel action when civil litigation has failed to secure compliance. ØThe advantages and disadvantages of both approaches must be weighed prior to the initiation of the court action.

PROGRAMMATIC AREAS from A to Z ENFORCEMENT PROCEDURES Environmental Strike Force Ø Created in 1989, the Massachusetts Environmental Crimes Strike Force (ESF) is an interagency team comprised of prosecutors from the Attorney General’s Office, officers from the Massachusetts Environmental Police, and investigators, engineers and attorneys from the DEP. Ø ESF is managed by DEP as a coordinating body between environmental agencies to promote proactive oversight and criminal enforcement initiatives. Ø Investigates and prosecutes civil, criminal and administrative environmental cases Ø ESF gathers evidence during undercover investigations, carefully builds cases against alleged environmental violators, then takes them to court. Ø Evolved into a “full product” approach going beyond the initial violation triggering ESF involvement. Results in claims for failure to pay taxes or obtain insurance.

PROGRAMMATIC AREAS from A to Z ENFORCEMENT PROCEDURES Citizen Suits ØThere are two citizen statutes that allow civil litigation or administrative intervention by any ten persons for environmental protection issues. They are G. L. c. 214, § 7 A (the Citizen Suit Statute) and G. L. c. 30 A, § 10 A (the Citizen Right to Intervene). ØSLAPP suits are “strategic lawsuits against public participation” brought mainly to intimidate citizens and groups from reporting or petitioning about government issues. The Anti SLAPP statute deters SLAPP suits by allowing the defendant to file a “special motion to dismiss. ” G. L. c. 231, § 59 H. Filing this motion stays discovery. If defendant proves SLAPP suit is based on its petitioning activities alone with no other basis, motion allowed and awards attorney fees and costs.

PROGRAMMATIC AREAS from A to Z FARMLAND & AGRICULTURE Ø Legal provisions favor preservation of farming activities and land: Ø Eminent domain statute contains special protections for farmland regarding public hearings and availability of non agricultural land Ø The state, municipalities or qualified charities may acquire Agricultural Preservation Restrictions (APRs), receiving deed restrictions to prevent farmland from being developed. Ø State Zoning Act exempts agriculture on land of at least five acres, and may exempt land of at least two acres if at least $1000 per acre gross sales. Municipalities authorized to establish “agricultural incentive areas” to further protect farmers and farms Ø State owned agricultural lands are protected by a policy to protect agricultural land base from “irreversible conversion” Ø There is a qualified exemption in the state Wetlands Protection Act for normal maintenance or improvement of lands already in agricultural use. M. G. L. c. 40.

PROGRAMMATIC AREAS from A to Z FARMLAND & AGRICULTURE Ø Property tax reductions and related benefits and protections: Ø Chapter 61 A allows reduced property tax assessments. Participation for landowners is voluntary on annual form filing. Tax relief varies by specific use, under guidelines of the state Department of Agricultural Resources (DAR). Ø Exempt from special or betterment assessments while land is farmed Ø Higher priority eligibility for land preservation funds Ø Increased protection from nuisance suits and eminent domain Ø Under M. G. L c. 40 L the city, town or Commonwealth enjoys a right of first refusal to purchase farmland that otherwise would be sold or converted for nonagricultural use in agriculture incentive areas.

PROGRAMMATIC AREAS from A to Z FINES & PENALTIES ACTIVITY OR USE Air APPLICABLE LAW CIVIL PENALTY M. G. L. c. 111, § 142 A Hazardous Waste M. G. L. c. 21 E, § 11 Solid Waste Water Wetlands M. G. L. c. 21 H, § 8 M. G. L. c. 21, § 42 M. G. L. c. 131, § 40 $25, 000 for each violation, each day or part thereof that the violation occurs shall be a separate offense $50, 000 for each violation CRIMINAL PENALTY $25, 000 fine or by imprisonment for up to one year, or both $50, 000 fine or by imprisonment for up to two years, or both. Violations of § 7 can result in $100, 000 fine, or imprisonment in the state prison for twenty years, or two and one-half years in jail, or both for each violation $25, 000 for each violation, each day that the $25, 000 fine or by imprisonment for up to two violation occurs shall be a separate offense years, or both $50, 000 for each day of the violation $25, 000 for each violation Minimum $2, 500 fine, maximum $50, 000 fine or by imprisonment for up to one year, or both $25, 000 fine or by imprisonment for up to two years, or both

PROGRAMMATIC AREAS from A to Z FORESTS AND TREES Ø Forest Cutting Practices Act promotes responsible harvesting of trees by specifying cutting methods and requiring work plans prior to commercial harvests of high volume. Limited exemptions available. M. G. L. c. 132, §§ 40 46. Ø Every owner or occupant of land who permits cutting of brush or timber shall dispose of the “slash” (tops, branches, sawdust, and other debris) in a way that minimizes fire danger. G. L. c. 48, §§ 16 18. Ø Wetlands Protection Act (and DEP regulations) contains a qualified agricultural exemption including forestry, carefully defined in DEP rules. Ø Real estate tax relief is available for land in forestry use. M. G. L. c. 61. Ø This law imposes a conveyance tax within 10 years of acquisition. Ø Rollback taxes apply if land is the land is converted to other use, except a transfer to c. 61 A or 61 B usage. Ø There is a municipal right of first refusal.

PROGRAMMATIC AREAS from A to Z FORESTS AND TREES Ø Public Shade Trees Act (M. G. L. c. 87) protects publicly owned trees along city, town and county ways, namely within public ways or on the boundaries thereof. Ø No such tree may be cut, trimmed or removed, even by the owner, without permission of the municipal tree warden after posting and public hearing. Ø If there is written objection, the work needs approval of the selectmen or mayor. Ø There is an exemption for the selectmen, mayor, road commissioners, or highway surveyor to order trees to be trimmed or removed if they deem them to “obstruct, endanger, hinder or incommode” persons traveling on a way. Officers in charge of widening roads may order removal of trees for that purpose. Ø The tree warden places a notice on the affected tree and holds a public hearing. If there is written objection, the work may not be undertaken without approval of the selectmen or mayor. Exemptions are available for local officials, if trees “obstruct, endanger, hinder, or incommode” persons traveling on a way. M. G. L. c. 87, § 5. Ø The state Scenic Roads Act regulates cutting or removal of trees, or tearing down or destruction of stone walls, along scenic roads so designated by town meeting or city council, by mandating a planning board public hearing.

PROGRAMMATIC AREAS from A to Z FORESTS AND TREES Ø The Public Lands Preservation Act (PLPA) Ø An Act to Protect the Natural Resources of the Commonwealth Ø Under Article 97 of the Massachusetts Constitution, citizens have the right to a clean environment and the right to enjoy natural resources on publicly owned land Ø Article 97 does not allow public land acquired for natural resource purposes to be used in any other way, or otherwise disposed of, without a two thirds vote of each branch Ø The PLPA was created to ensure “no net loss” of Article 97 lands or easements Ø To approve a change in use of Article 97 land, PLPA dictates that there be no other feasible alternative and that replacement land of the same value is provided

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP Ø The Massachusetts Superfund law, G. L. c. 21 E, imposes responsibility and liability for releases of hazardous materials as well as oil and other petroleum products into the environment, and for suspected or confirmed disposal sites. Ø DEP’s comprehensive regulations, known as the Massachusetts Contingency Plan (MCP) govern cities and towns like anyone else who is a present or former site owner or operator who generated, stored, transported, or disposed of oil or hazardous materials (OHM). Ø The MCP sets forth what responsible parties need to know about reporting of releases and sites, response actions and reports, cleanup standards, liabilities and fees, legal defenses, and presenting and pursuing claims that cities or towns may have for cost recovery and property damages for which others are liable.

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP ØAll site “owners and operators” are subject to joint and several liability, meaning the Commonwealth can seek reimbursement for site cleanup costs from one, some, or all potential defendants. ØPersons responsible for releases or threats of release of OHM, for which Massachusetts incurs cleanup costs, are strictly liable for up to three times the actual costs. DEP can record a “Superlien” against contaminated property, taking priority over all other recorded instruments as to the property, and can record ordinary liens on other Massachusetts property of responsible parties. ØG. L. c. 21 E gives the Commonwealth discretion to file suit against one, some or all potentially liable parties, so defendants may face the burden of finding other “owners and operators” to share liability for cleanup costs.

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP Ø Persons responsible for releases or threats of release of OHM, for which Massachusetts incurs cleanup costs, are strictly liable for up to three times the actual costs. Ø Chapter 21 E contains rights of action for private parties, public agencies and others to sue for cleanup cost recovery and contribution as well as for property damage. Court actions must be preceded by 45 day notice plus 60 day good faith negotiations. Ø Attorney fees incurred to respond to releases of hazardous materials are recoverable under 21 E as “response” costs. Attorney fees for litigation itself, however, are not recovered as “response” costs, but rather awarded under other provisions. Bank v. Thermo Elemental, Inc. , 451 Mass. 638 (2008). Ø Practical import is legal work undertaken to manage a response action is recoverable as a response cost. Litigants should make sure that such work has been and is billed separately from litigation and cost recovery.

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP Ø DEP’s Bureau of Waste Site Cleanup (under the MA Superfund): Ø Promulgates the MCP rules on release and site reporting, remedial plans, cleanup procedures, public participation, and liabilities of responsible parties Ø DEP routinely assesses monetary penalties for failure to comply with rules for reporting, testing and meeting deadlines Ø DEP is authorized to take necessary response actions to contend with releases and threats of release, including assessment, containment and removal and go after the responsible parties. Ø Establishes reportable quantities and concentrations of certain substances, as well as release notification content and follow up.

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP Ø No disposal site shall be deemed to have all necessary response actions taken until a level of No Significant Risk (“NSR”) exists or has been achieved. In addition, all response actions must employ the “Best Response Action Management Approach. ” Ø Following release and initial notification to DEP, parties must undertake preliminary response actions (often resulting in Phase I Initial Site Investigation Reports) and submit them to DEP. Ø Immediate notification to DEP is required of any landowner upon learning of the release or threat of release of hazardous materials on its property. Ø Failure carries penalties up to $25, 000 per violation per day per G. L. c. 21 A Ø Knowing or reckless damage carries penalties up to $500, 000 and criminal sanctions of up to 20 years in jail per G. L. c. 21 L

PROGRAMMATIC AREAS from A to Z HAZARDOUS MATERIALS: CLEANUP Ø Massachusetts’s ‘Right to Know’ law Ø Regulates hazardous materials. This law was promulgated due to concern that residents understand the health and safety risks involved in local industries. M. G. L. c. 111 Ø Requires cities and towns to respond to citizens' requests for information on hazardous substances used by local employers in the course of their routine work. Ø The selectmen designate a municipal coordinator, who is usually the fire chief, fire commissioner, public health commissioner, or public health officer. In small towns, the selectmen may designate one of the board's members to be municipal coordinator. Ø A town's emergency response personnel should be aware of potential hazards, and the town also is subject to its terms as an employer.

PROGRAMMATIC AREAS from A to Z HAZARDOUS WASTE MANAGEMENT Ø DEP’s Division of Hazardous Waste implements the federal RCRA Subtitle C program regulating generation, transportation, treatment, storage, and disposal of hazardous wastes, as well as similar state statutes and regulations. G. L. c. 21 C; G. L. c. 175 G. Ø Like federal RCRA program, MA requires permits for treatment, storage, and disposal facilities (“TSDFs”) and mandates a manifest system to track waste from “cradle to grave. ” Ø In addition to federal RCRA program, MA expands universe of “hazardous” chemicals (to include waste oil and petroleum products), reduces thresholds of Small Quantity Generators (“SQGs”) to reach Very Small QGs (“VSQGs”), requires licenses for transporters (not just registrations), tightens release reporting requirements, and adds procedures and siting criteria for TSDFs.

PROGRAMMATIC AREAS from A to Z HISTORIC SITES AND STRUCTURES Ø Municipalities can create historic districts for managing sites and structures therein. They may do so by special act or, more commonly, by an enabling act under the Historic District Act, G. L. c. 40 C. Ø The resulting Historic District Commissions are city or town boards with power to regulate and restrict various changes within the district. More than 220 local historic districts were established in more than 100 communities. Ø In addition to this “district” approach, there are local historical commissions (LHCs). These are agencies of local government providing leadership to help preserve historic sites and buildings. As of 1999, about 345 communities had established LHCs. They have broad planning responsibilities to identify, evaluate and protect historic properties. G. L. c. 40, § 8 D.

PROGRAMMATIC AREAS from A to Z HISTORIC SITES AND STRUCTURES Ø Several municipalities have utilized the Zoning Act or Home Rule authority to enact “demolition delay” bylaws. Such a bylaw typically provides a cooling off period after a property owner files an application for a demolition permit from the building inspector. Ø The building inspector then will be prohibited from issuing the demolition permit for a set period of time, usually 90 days to six months, during which local officials are directed to work with the property owner to seek alternatives to demolition. Ø Other activists may attempt at the same time to create a historic district, secure landmark status, or negotiate an Historic Preservation Restriction (HPR) saving all or some of the property, allowing limited development, or none.

PROGRAMMATIC AREAS from A to Z HISTORIC SITES AND STRUCTURES Ø The Massachusetts Historical Commission (MHC) administers state statutes and the National Historic Preservation Act (NHPA). It may designate or certify historic landmarks for listing in a state publication known as the State Register. This provides some degree of protection. There is a duty to eliminate, minimize, or mitigate adverse effects to State Register properties. Ø Once a property is designated a state historical landmark, and listed in the State Register, sponsors of public and private projects in the area, municipalities included, must access impacts to historic properties. A consultation process, to provide balanced points of view, follows if an historical property would be adversely affected by a project. Ø State agencies, private parties, and others proposing state licensed projects, must adopt all prudent and available means to eliminate, minimize, or mitigate adverse effects to State Register properties.

PROGRAMMATIC AREAS from A to Z HISTORIC SITES AND STRUCTURES Ø Matching grants are available to municipal and private non profit owners of properties which are listed on the State Register (or certain other eligible properties if they meet requirements), if the owners agree to record an HPR with the MHC. Ø In addition to historic preservation as described, Massachusetts regulates discovery of an archeological site or historic site or object during any survey, excavation, or construction. This results in a mandatory report to the State Archeologist, and then reasonable steps to secure preservation. Ø Historic Preservation Restrictions are authorized, with the procedure specified for their creation and enforcement, in the same statute creating Conservation Restrictions (CRs) and Agricultural Preservation Restrictions (APRs). Such a restriction may be given to the MHC, a local HPC, or a qualified non profit preservation organization.

PROGRAMMATIC AREAS from A to Z HOME RULE Ø Massachusetts, like a few other states, is a Home Rule jurisdiction. By virtue of a Home Rule Amendment to the Massachusetts Constitution and the Home Rule statute, cities and towns have the power to enact their own legislation on many subjects (if they do not conflict with federal or state law) without the need for the state legislature to enact specific enabling statutes on those subjects. Ø The Home Rule Amendment includes authority to protect the public health and safety. It has been interpreted to confer broad authority to protect the environment. For example, under this sort of automatic delegation of the state’s police power, many Home Rule towns have enacted wetlands protection bylaws.

PROGRAMMATIC AREAS from A to Z HOME RULE Ø Using the Home Rule power, about 190 Massachusetts municipalities have enacted local bylaws and ordinances giving Conservation Commissions the power to regulate activities in and near wetlands and related water resources including flood prone areas. Ø In addition, several communities have local legislation (typically contained in General Bylaws and General Ordinances) dealing with: Ø Underground tanks storing petroleum and chemicals: Ø Industrial disclosures about chemical use; Ø Operations of landfills and incinerators; Ø Protection of public and private water supplies; Ø Sedimentation and erosion control; Ø Control of air pollution and noise; and Ø Environmental impact studies which must be prepared for local government projects and permits.

PROGRAMMATIC AREAS from A to Z HOME RULE Ø Boards of health in Massachusetts have substantial power to adopt health regulations and to abate nuisances. In many communities, these local boards have adopted regulations of standing orders on: Ø septic systems and sewage treatment; Ø underground storage tanks; Ø landfills and incinerators; and Ø cleanup of contaminated land. Ø Most land use control in Massachusetts is vested in municipal government, not in regional government, such as counties. Ø Nevertheless, there are examples of regional land use control such as the Cape Cod Commission implementing regional growth policies and reviews for Cape Cod, the Martha’s Vineyard Commission reviewing development of regional impact and regional importance, and the Town of Nantucket.

PROGRAMMATIC AREAS from A to Z INDOOR AIR POLLUTION Lead Paint Ø Lead Poisoning Prevention and Control Act and agency regulations thereunder require identification and removal of lead paint, as well as detection and screening programs. G. L. c. 111, §§ 190 199. Ø Law applies with every change of ownership of residential property that contains lead paint. Ø Failure of residential property owner to comply with the Act may result in liability for all damages caused thereby. Ø Provision for punitive, treble damages. G. L. c. 111, § 199.

PROGRAMMATIC AREAS from A to Z INDOOR AIR POLLUTION Urea Formaldehyde Foam Insulation (UFFI) Ø In 1979 “UFFI” was banned for use in the state by the Department of Public Health (“DPH”) under its authority to ban hazardous substances. G. L. c. 94 B, § 2(a). UFFI regulations upheld in court. Ø MA created a trust fund, which is funded by industries involved with UFFI (manufacturing, distribution, and installation), which landowners may utilize to pay for the removal of UFFI. Ø Landlords or sellers of residential property must determine whether dwelling contains UFFI and, if so, disclose this and the formaldehyde air levels to tenants, prospective tenants and buyers. Ø Air testing is available at no cost from DPH.

PROGRAMMATIC AREAS from A to Z INDOOR AIR POLLUTION No Smoking Regulations Ø Clean Indoor Air Act restricts smoking in many public settings, including municipal buildings, nursing homes, supermarkets, mass transit facilities, airports, public elevators, open meetings of government bodies, health and daycare facilities, and student dormitories. G. L. c. 270, §§ 21 22. Ø Signs to restrict smoking in these areas are posted conspicuously. Ø Local health officer or building inspector is to receive complaints. Ø Many municipalities, through their boards of health, promulgated more stringent regulations regarding separate smoking sections in local restaurants and work places, even outdoor spaces.

PROGRAMMATIC AREAS from A to Z LANDFILLS, INCINERATORS, AND TRANSFER STATIONS Ø DEP, in cooperation with the DPH, is responsible for establishing rules and regulations for siting of landfills, refuse transfer stations, resource recovery plants, refuse composting plants, and other facilities for the storage, treatment or final disposal of waste. Landfills, for example, cannot be located in or near wetlands, in areas prone to flooding, or in proximity to either public or private water supplies. Ø DEP has also issued regulations to prevent air, land, and water pollution in or near landfills, incinerators, and solid waste transfer stations, and requires that such conditions be abated when and where they occur. An order to close a landfill may relate as much, if not more, to protection concerns (e. g. , proximity to a water source or potential source) as to the landfill's capacity and/or operation. G. L. c. 111, § 50 A.

PROGRAMMATIC AREAS from A to Z LANDFILLS, INCINERATORS, AND TRANSFER STATIONS Ø DEP’s Division of Solid Waste, along with Boards of Health, determines site suitability of solid waste facilities such as public or private landfills, incinerators, recycling and transfer stations. It regulates operation of these as well as transporters, materials recovery, waste disposal and old dumps. Ø DEP may clean up solid waste disposal facilities and recover costs from responsible parties. G. L. c. 21 H, §§ 1 8; c. 111, §§ 150 A B. Ø DEP issued a Solid Waste Master Plan to address waste management, waste reduction, and waste diversion, with a strong emphasis on municipal recycling programs to reduce the amount of waste which must be transported to landfills, or incinerated. Ø The board of health is required to approve the sites for solid waste disposal facilities, under G. L. c. 111, § 150 A, and furthermore hazardous waste facilities, under G. L. c. 111, § 150 B. A board permit is needed for transportation of garbage, or other offensive substances, through town streets. G. L. c. 111, § 31 A.

PROGRAMMATIC AREAS from A to Z MEPA AND NEPA Ø Massachusetts Environmental Policy Act (MEPA) requires all state bodies to prepare, circulate, and consider an Environmental Impact Report (EIR) 60 days prior to undertaking any project which may cause significant damage to the environment. G. L. c. 30, §§ 61 62 H. Ø MEPA reaches any work or activity meeting a broad definition of “project” – including government grants and approvals. Consequently, MEPA extends beyond projects performed directly by state agencies to cover private sector projects. These can become subject to MEPA through state permits, licenses, and other approvals (and state agency resolution of appeals from local boards). They also can become subject to MEPA by securing state grants and other forms of financial assistance. Ø MEPA does not apply to the determinations of local government, such as boards of selectmen and city councils, planning boards, zoning boards of appeal, school boards, and boards of public works, unless the subject of the determination has some regulatory or financial connection with the state. The same is true of determinations of special purpose local governmental entities such as sewer districts and water districts.

PROGRAMMATIC AREAS from A to Z MEPA AND NEPA Ø Basic to determining the applicability of MEPA are the regulations on MEPA Review Thresholds. These regulations assign numerical values to various criteria that are applied to the proposed actions. If a proposed action reaches the applicable numerical threshold, it generally will have to undergo MEPA review, beginning with the preparation of an Environmental Notification Form. Conversely, MEPA will not apply to a proposed action that falls below the threshold (unless it qualifies for MEPA review under some facet of the regulations other than the Thresholds). Ø There are Review Thresholds for permits for agencies within several Executive Offices of Massachusetts. Likewise, there are Review Thresholds for agency actions and financial assistance that present numerical limits or qualitative criteria for various functions of government such as operations, maintenance, rehabilitation, repair, minor alterations, construction, replacement, reconstruction, conversion, expansion, or demolition.

PROGRAMMATIC AREAS from A to Z MEPA AND NEPA Ø In addition to the Review Thresholds, there are Categorical Inclusions; in other words, some projects automatically trigger the preparation of EIRs. These numerical triggers concern such matters as the amount of affected: Ø Ø Ø acres of land; acres of wetlands; acres of waterways; acres of tidelands boat slips; floor space; residential units; buildings (in terms of heights); parking spaces; vehicle trips; and water volumes utilized from public water supplies.

PROGRAMMATIC AREAS from A to Z MEPA AND NEPA Ø The MEPA Unit may conduct a scoping session with proponents in the form of a meeting or a site visit where proponents and the public participate to protect their rights and state their positions. A scope is determined for the EIR, essentially a comprehensive table of contents and MEPA Unit expectations for the study. Ø Review and comment period lasts thirty days once the EIR availability is printed in the Environmental Monitor – public comment, interested agency review, and MEPA Unit review occur during this time. After seven days from the close of review and comment, the Secretary issues a certificate of compliance or non compliance with MEPA requirements. Ø Compliance with MEPA requires a finding by the Secretary that “all feasible measures have been taken to avoid or minimize [environmental] impacts. ” G. L. c. 30, § 61.

PROGRAMMATIC AREAS from A to Z MEPA AND NEPA Ø Most projects subject to MEPA review satisfy MEPA and EOEEA by filing an Environmental Notification Form (ENF). This is less costly and time consuming. Essentially, the MEPA Unit reviews the ENF to decide if an EIR is needed. Ø The Secretary of EOEEA has authority to designate areas which represent “unique clusters of natural and human resources values” worthy of a high level of concern and protection as an area of critical environmental concern(ACEC). Designation as an ACEC triggers a higher level of state scrutiny of the activities in them (most notably under MEPA). Ø There are currently about 30 identified ACECs, covering about 268, 000 acres of land. Agencies are generally directed to administer their programs to preserve, restore, and enhance the natural resources of ACECs and ensure that activities in, or impacting upon them, minimize adverse impacts.

ENVIRONMENTAL IMPACT REVIEW • Applicability 1. 2. 3. Procedures Contents of an EIR Review and Approval Ø MEPA requires all state bodies to prepare, circulate, and consider an Environmental Impact Report (EIR) 60 days prior to undertaking any project which may cause significant damage to the environment. G. L. c. 30, §§ 61 62 H. Ø MEPA does apply to private projects that involve state permits, licenses, grants, and loans. MEPA does not apply without a state financial or regulatory connection. Ø Review Thresholds: numerical action thresholds assigned to various criteria that, if reached, trigger MEPA project review. Categorical Inclusions: automatically trigger review when a project involves particular areas of concern. ACEC designation (“Area of Critical Environmental Concern”) recognize “unique clusters of natural and human resource values” worthy of high level of protection, meaning projects therein are scrutinized closer.

ENVIRONMENTAL IMPACT REVIEW • Applicability 1. Procedures 2. 3. Contents of an EIR Review and Approval Ø Proponent prepares EIR in draft (DEIR) and final (EIR) form to be reviewed and approved if adequate by the MEPA Unit of EOEEA. Public comment period. Ø Filing an Environmental Notification Form (ENF) is less costly and time consuming, like a mini EIR (or good excuse for not doing EIR). MEPA Unit reviews ENF to decide if EIR needed. Ø ENF and EIR availability: notice published by EOEEA for free in the Environmental Monitor, but copies obtained from proponent or consultant.

ENVIRONMENTAL IMPACT REVIEW • • Applicability Procedures 1. Contents of an EIR 2. EIR Review and Approval Ø EIR must contain detailed statements describing: Ø Ø Nature and extent of the proposed project Description and analysis of all feasible alternatives Environmental impacts of the project Unavoidable adverse environmental consequences of the project, both short and long term. Ø All mitigation measures used to lessen environmental impacts Ø MEPA Unit may conduct a scoping session with proponents in the form of a meeting or a site visit where proponents and public participate to protect their rights and state their positions. Ø A Scope is determined for the EIR, essentially a comprehensive table of contents and MEPA Unit expectations for the study.

ENVIRONMENTAL IMPACT REVIEW • • • Applicability Procedures Contents of an EIR 1. EIR Review and Approval Ø Review and comment period lasts thirty days once the EIR is printed in the Environmental Monitor – public comment, interested agency review, and MEPA Unit review occur during this time. After seven days from the close of review and comment, the Secretary issues a certificate of compliance or non compliance with MEPA requirements. Ø Compliance with MEPA requires a finding by the Secretary that “all feasible measures have been taken to avoid or minimize [environmental] impacts. ” G. L. c. 30, § 61. Ø Statute of limitations is 120 days for challenges to EIRs for public projects, with extensions granted only in situations where environmental problems have been concealed. Town of Hull v. Mass. Port Auth. , 441 Mass. 508 (2004). 30 day deadline for a private project begins to run when first state permit issued for the project. Town of Canton v. Mass. Highway Dept. , 455 Mass. 783 (2010).

PROGRAMMATIC AREAS from A to Z PARKLANDS AND PUBLIC TRUST Ø Article 97 of Amendments to the Massachusetts Constitution Ø Requires special, high level consideration of any proposed disposition of or change in use of parklands. Ø Requires a two thirds roll call vote of the state legislature in order to dispose of or change the use of certain state, county or local public lands taken or acquired for natural resources proposes, broadly defined. Ø In effect, anyone seeking to alter the use of or grant, sell, or lease public land originally taken or acquired for natural resource purposes likely would need a bill drafted and passed by the legislature and signed by the governor.

PROGRAMMATIC AREAS from A to Z PARKLANDS AND PUBLIC TRUST Ø Article 97 of Amendments to the Massachusetts Constitution Ø Ø Essentially codifies the public trust doctrine in Massachusetts. The bottom line is that many municipal transactions amount to dispositions of public natural resource lands (and easements and interests in real estate). In addition, many municipal actions amount to changes in use about such protected properties. Both need a piece of Article 97 legislation. Several such bills are filed each year, mostly not controversial, enabling land swaps with state forests or state parks, limited commercial or private activities in municipal parks and forests, transactions with local businesses and local landowners to lease town properties, legalization of encroachments, or releases of conservation restrictions.

PROGRAMMATIC AREAS from A to Z PARKLANDS AND PUBLIC TRUST Ø Article 97 Land Disposition Policy Ø Ø Ø The purpose is to “ensure no net loss of Article 97 lands under the ownership and control of the Commonwealth and its political subdivisions. ” EOEEA Article 97 Land Disposition Policy (Feb. 19, 1998). Thereby EOEEA will not support an Article 97 land disposition unless the sponsoring agency determines that “exceptional circumstances exist” for the disposal and certain conditions must be met. The policy provides an extensive internal review process for potential dispositions. The consequences for municipalities are rather serious in that the policy specifies that non compliance leaves the city or town ineligible for grants offered by EOEEA or its agencies until the municipality has complied. An earlier common law doctrine is still in effect, the prior use doctrine. This requires a majority vote of the legislature on a bill filed to authorize any changes of use of public land to inconsistent uses.

PROGRAMMATIC AREAS from A to Z PARKLANDS AND PUBLIC TRUST Ø In addition to these procedural requisites protecting public lands, specific types of resources are governed by individual statues. Many public lands within municipalities are managed under these laws. These include: Ø Ø Ø Ø Ø G. L. c. 45, §§ 1 13 (city and town parks); G. L. c. 45, § 3 (parklands); G. L. c. 45, § 14 (playgrounds); G. L. c. 45, § 19 (public domain); G. L. c. 45, § 21 (city and town forests); G. L. c. 45, § 23 A 23 C (shore reservations): G. L. c. 92, §§ 33 59 (urban parks and recreation lands); G. L. c. 132 (state forests); and G. L. c. 132 A, §§ 1 18 (state parks).

PROGRAMMATIC AREAS from A to Z PARKLANDS AND PUBLIC TRUST Ø The near perfect protection for public land comes in the form of a “deed in trust. ” This is the name for an instrument, drafted and recorded so as to impress a charitable trust requiring that the property be used forever for a specified stated purpose. Ø In addition, there is a statutory basis for ten taxpayers to commence an action with leave of court (or the attorney general) to enforce the terms of conveyance or gift to a municipality, county, or state agency. G. L. c. 214, § 3(10). This public charitable trust statutory enforcement has been used effectively against many cities and towns.

PROGRAMMATIC AREAS from A to Z PESTICIDES Ø Pesticide Board in the Department of Agricultural Resources (“DAR”) administers state requirements similar to those under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”). Ø Pesticide Board requires state registration of these materials, the applicators of these materials, and pesticide programs of public utilities. Ø G. L. c. 132 B pre empts municipal regulation of pesticides and herbicides, although local regulations can require board of health hearing to ensure use is in compliance with state restrictions. Wendell v. Attorney General, 394 Mass. 518 (1985). Ø Massachusetts bans use of certain pesticides inside grade schools and child care centers and requires parental notification before outside application of pesticides. Ø Treated areas posted at least 72 hours after applications. Ø Schools and child care facilities must implement integrated pest management (“IPM”) for low to no toxicity pest control

PROGRAMMATIC AREAS from A to Z PUBLIC HEALTH LAW Ø At the local level, boards of health have the primary responsibility for protecting public health in Massachusetts. Ø Under state law, the selectmen act as the board of health, if the town has no other arrangement. G. L c. 41, § 1. Selectmen also can be authorized by town meeting to appoint a board of health. G. L. c. 41, § 121. More often, towns decide to have a separate board of health consisting of three or more elected members. Ø Several groups of towns have elected to form regional health districts. G. L c. 111, § 26 A. Towns may also specify in their home rule charters a different method of delegating health duties. G. L. c. 43 B, § 20. Ø Members of boards of health are not required by law to have any medical or health training, although in practice many do. A board may appoint a physician and other staff, however, to advise and assist them. G. L. c. 111, § 27.

PROGRAMMATIC AREAS from A to Z PUBLIC HEALTH LAW Ø In those towns in which the selectmen serve as the board of health, the field has become so complex that professional assistance is practically a necessity. Selectmen are authorized, by law, to appoint a health inspector, and in towns of less than 3, 000 people, that person maybe the school physician. G. L. c. 41, §§ 102, 102 A, 102 B. Ø Most towns employ a health inspector and a public health nurse, either full time, part time, or on a contract basis. Qualifications for a health inspector include licensure as a registered sanitarian (R. S. ). Many towns also require that inspectors be certified health officers (C. H. O. ). Ø Boards of health have a wide range of responsibilities and functions specified by state law. Ø Among the board's specific legal duties is enforcement of the State Sanitary Code, which establishes standards for day camps, swimming pools, and food service establishments. G. L. c. 111, § 127 A. The code permits a board of health or other health authority to adopt rules and regulations stricter than those contained in the code.

PROGRAMMATIC AREAS from A to Z PUBLIC HEALTH LAW Ø Boards of health are also the local enforcement agents for the State Environmental Code, Title 5 of which establishes minimum standards for sewage disposal. Local boards of health may adopt more stringent regulations as local conditions warrant Ø Boards of health have extensive power to adopt and enforce any reasonable health regulation. G. L. c. 111, § 31. Ø Boards of health may issue orders declaring that an emergency exists and requiring that certain actions be taken. They may order the fluoridation of water supplies, and adopt and enforce local regulations for the control of air pollution and animal stables. Ø State law permits boards of health, or selectmen acting as boards of health, to establish and maintain dental, medical, and health clinics and to conduct general education campaigns relating to health matters. G. L. c. 111, § 50. Many of these direct health services departments are aimed at adults and children who are unable to obtain private medical care. Many towns now provide flu vaccination clinics, well baby clinics, hypertension screening, and screening for blood lead poisoning, among other community health services.

PROGRAMMATIC AREAS from A to Z PUBLIC HEALTH LAW Ø Ø The local health authority is required to notify the state Department of Public Health within 24 hours of the discovery of a case of a communicable disease. G. L. c. 111, §§ 112 and 113. Every board is required to appoint a person (who may be a board member) to maintain a record of diseases. The board of health must notify the school committee of all reported diseases that are dangerous to the public health. Boards of health have broad authority to regulate in environmental areas where there is a risk of adverse health consequences. Among other things, boards of health have the power to enforce state laws and regulations concerning groundwater monitoring, septic systems, underground fuel and chemical storage, landfills, incinerators and transfer stations, hazardous waste, and water supply contamination. The board of health may make and enforce regulations concerning house drainage and connection with common sewers. G. L. c. 111, § 127. Boards of health and selectmen have the comparable authority to take action in the removal of nuisances. A health nuisance is defined by law as a source of filth or a cause of sickness. State law gives the board of health the power, to approve a business that may result in a nuisance or harm to the inhabitants, cause injury to their land, or cause offensive or dangerous odors. This permission is called a site assignment. G. L. c. 111, § 143.

PROGRAMMATIC AREAS from A to Z PUBLIC HEALTH LAW Ø Boards of health using their nuisance abatement power are authorized to examine all nuisances which may be injurious to the public health and to destroy, remove, or prevent them. G. L. c. 111, § 122. A separate section of law gives selectmen the same nuisance abatement powers as boards of health. G. L. c. 139, § 3. Ø Selectmen may declare a burned, dilapidated, or dangerous building, structure, or vacant lot to be a nuisance. After holding a public hearing and giving written notice to the owner of the property or his authorized agent, the selectmen may order the nuisance altered, disposed of, or regulated. If the owner fails to comply, the town can sue for the cost of removing the building or for the cost of another solution. G. L. c. 139, §§ 1, 3 A. Ø Some towns have nuisance bylaws which allow them to clean up a nuisance, bill the property owner for costs, and place a lien on the property if the bill is not paid.

PROGRAMMATIC AREAS from A to Z RADIOACTIVE MATERIALS Ø DPH and Low Level Radioactive Waste Management Board (within the Executive Office of Administration and Finance) plan for MA waste disposal needs in accordance with federal law. Ø Massachusetts is not in a Low Level Radioactive Waste compact. Ø DPH regulates persons who generate, transport, store, treat or dispose of low level radioactive waste within the state, and regulates other radioactive hazards. G. L. c. 111 H; c. 111, § 4 F. Ø Massachusetts and federal Nuclear Regulatory Commission (“NRC”) share 1993 memorandum serving as basis for MA’s use of NRC’s emergency response data system during an emergency at a commercial nuclear power plant in MA.

PROGRAMMATIC AREAS from A to Z SEPTIC SYSTEMS AND SEWAGE Ø Division of Water Pollution Control within the Bureau of Waste Prevention in DEP regulate disposal of sewage in MA. Ø Massachusetts Water Resources Authority (“MWRA”) is responsible for regional waste water collection and treatment and water supply for Metropolitan Boston. Administers a permit program with detailed regulations and enforcement for domestic and industrial discharges to the MWRA sewer system. Ø A separate DEP permit program governs connections and extensions for discharges to sewerage systems. Thereby the DWPC regulates the construction, connections, repairs, and expansions as well as extensions regarding public and private sewage treatment plans and their sewerage and discharge points.

PROGRAMMATIC AREAS from A to Z SEPTIC SYSTEMS AND SEWAGE Ø Septic systems fall under a set of regulations known as Title V, a portion of the State Environmental Code dealing with on site sewage disposal. Each septic system requires a permit from the local board of health or its agent, with a physical inspection. The system installer, the permit procedure, the design specifications, the testing prerequisites, and the performance standards (including certain inspection during the life of the system, as with a land transfer) are all governed by Title V. Any variance from Title V requires approval of the board of health and, on review, the DEP. Certain provisions cannot be waived. Ø Thus, the local board of health has the first jurisdiction over the approval of any septic system and variance, and DEP has variance approval and plan review powers. For instance, DEP must approve the use of most alternative systems, modifications of large flow systems, and several other project types where DEP review is appropriate. Ø In addition to these statutes and regulations, involving the board of health and its agents in significant ways, municipalities have authority to promulgate their own septic system regulations. Many municipalities have such local septic system rules. Some municipalities have used this power to regulate package treatment plants, (this is, large septic systems which need groundwater discharge permits from DEP), mounded septic systems, groundwater and soil conditions, and time of testing during the year.

PROGRAMMATIC AREAS from A to Z SEWAGE DISPOSAL Ø Ø Ø Towns can charge developers an “inflow and infiltration reduction fee” for access to the town’s sewer system. Denver Street LLC v. Town of Saugus, 462 Mass. 651 (2012). Town was under administrative consent order from the DEP to reduce the inflow and infiltration of its sewer system and by paying the fee, developers gained immediate access to the sewer system. A charge will be characterized as a user fee when: It is charged “in exchange for a particular government service which benefits the party paying the fee in a manner‘not shared by other members of society, ’ ” It is “paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge, ” and It is not collected “to raise revenues but to compensate the governmental entity providing the services for its expenses. ” Denver Street LLC v. Town of Saugus, 462 Mass. 651 (quoting Emerson College v. Boston, 391 Mass. 415 (1984)).

PROGRAMMATIC AREAS from A to Z SOLID WASTE ØDEP Solid Waste Master Plan and Local Boards of Health: ØG. L. c. 111, § 150 A requires BOH approval of disposal sites ØG. L. c. 111, § 31 A requires a BOH permit to transport waste ØRegulate operation of public and private landfills, incinerators, transfer stations, recycling facilities, transporters, materials recovery, disposal and old dumps. ØWork with industry groups to build markets for recycling Ø DEP may clean up solid waste disposal facilities and recover costs from responsible parties. G. L. c. 21 H, §§ 1 8; c. 111, §§ 150 A B. ØEOEEA produces a state wide plan for solid waste disposal, a policy document on which to base planning, decisions and regu lations. State regulations protecting ground water and other environmental resources make finding suitable sites for waste disposal, or even facility expansion, difficult.

PROGRAMMATIC AREAS from A to Z SOLID WASTE Ø Commercial Organics Waste Ban, Effective 10/1/2014 Ø Affects about 1, 700 businesses and institutions, producing a ton or more of food waste per week, and promotes food donation and diversion of unavoidable food waste to composting and waste to energy (Anaerobic Digestion) facilities. 310 CMR 19. 000 with Jan. 31, 2014 amendments. Ø Works to reduce the burden on MA’s shrinking landfill capacity, the disposal costs to the covered entities, and the volume of methane released each year, while creating a reliable supply of food waste to spur development of waste to energy facilities, which in turn generate renewable energy and clean energy jobs. Ø Promotes several MA clean energy generation and waste reduction goals and is supported by extensive technical assistance to covered entities through Recycling. Works in MA and by a combined $4 million in loans and grants offered by EOEEA, DOER, and Mass. DEP.

PROGRAMMATIC AREAS from A to Z STORAGE TANKS Ø DEP, DPH and MA Board of Fire Prevention, along with local officials, regulate above and below ground tanks, containers, and associated piping if the tanks contain flammable or hazardous materials. Ø Design specifications, performance standards, inspection provisions, permit requirements, and location criteria for installations, as well as requirements for composition, removal, monitoring, and testing of the tanks. Reporting requirements when they fail. Ø MA implements federal regulations for Underground Storage Tanks (“UST”) but imposes stricter standards, specifically double containment for hazardous material tanks and deadlines for retrofitting. Ø Local zoning governs structures and uses within Flood Plain Districts, but also requires consistency with all relevant provisions of other agencies.

PROGRAMMATIC AREAS from A to Z STORMWATER LAW Federal Ø EPA has not delegated National Pollution Discharge Elimination System (“NPDES”) permitting authority to MA. Federal stormwater permitting program within MA administered through EPA’s New England Region office in Boston. Ø EPA’s NPDES Phase II Stormwater Program requires public and private entities to develop comprehensive stormwater management programs focused on water quality. Affects many municipalities, industries and large landowners. Ø The legally mandated programs for so called MS 4 s typically deal with treatment standards, anti degradation, retrofitting treatment, low impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types, and natural alternatives. Ø Most stormwater discharges into water bodies in MA are covered by the provisions of EPA regulations.

PROGRAMMATIC AREAS from A to Z STORMWATER LAW State Ø MA Wetlands Protection Act covers stormwater drainage from most projects regulated by that law. Ø Wetlands Regulations and Water Quality Certification Regulations in 2008 incorporated the Stormwater Management Standards. 310 CMR 10. 00 and 314 CMR 9. 00 Ø Eliminates need for separate DEP Stormwater Policy and provides strength and enforceability of regulations rather than policy Ø Applies to any NOI filed under the Wetlands Act from January 2, 2008 Ø New stormwater management facilities are not protected as wetlands resource areas. Ø Not applicable to housing units of four families or fewer if no effect on a critical area Ø Regulations promote increased stormwater recharge, low impact development techniques, removal of illicit discharges, and improved operation and maintenance of stormwater systems.

PROGRAMMATIC AREAS from A to Z STORMWATER MANAGEMENT State Ø DEP Proposed Stormwater General Permit Program – requires private owners of large impervious areas to manage stormwater Ø Threshold: > 5 acres of impervious surface Ø Private Property Owners must implement good housekeeping practices Ø Private New Developments must meet MA stormwater standards 3 6, including recharge and water quality treatment Ø Private Redevelopment shall maintain same level of stormwater control and recharge Ø TMDL Areas: 65% reduction in phosphorus load is necessary to achieve compliance with the state’s water quality standards. Ø Private Property Owners covered if they own > 2 acres of impervious surface Ø New Projects and Redevelopments must meet statewide requirements and implement Best Management Practices for phosphorus reduction Ø Existing Properties have 10 years to retrofit properties to meet phosphorus reduction requirement

PROGRAMMATIC AREAS from A to Z STORMWATER MANAGEMENT Municipal Separate Storm Sewer Systems (MS 4 s) Ø Municipalities with MS 4 s that have been designated as regulated by NPDES Phase II must now comply with all EPA, and DEP, promulgated MS 4 s standards. Ø Municipal plans for MS 4 s typically deal with treatment standards, anti degradation, retrofitting treatment, low impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types, and natural alternatives. There at least 257 Phase II communities in Massachusetts. Ø Beyond federal regulation, DEP regulates stormwater discharges. Permits are required under state Clean Water Act for both surface and groundwater discharges. Stormwater is also regulated by the Wetlands Protection Act, the Tidelands and Waterways Statutes, and through various certification reviews for activities in MA. Federal permits and grants are also required for water quality certification and coastal zone consistency determinations.

PROGRAMMATIC AREAS from A to Z SUBDIVISION CONTROL Ø The Subdivision Control Act Ø Authorizes and empowers municipalities to control divisions of land into new parcels not already served by public ways. The same statute offers landowners an opportunity (reportedly unique in the United States) to get rulings from the local planning board that a full subdivision approval is not required. This procedure is called an Approval Not Required (ANR). Ø Under the auspices of subdivision control, the planning board must promulgate subdivision rules and regulations. Some municipalities adopt merely a basic set of procedures. Others use the opportunity to establish comprehensive engineering, design, and environmental standards for roadway construction and operations, utility installation, tree removal and landscaping, stormwater management, identification and preservation of historic sites or significant vistas, planning and layout, signage, and other public health and safety matters. Some incorporate technical environmental specifications and performance standards, plus environmental studies for large subdivisions. Ø In addition, a planning board may not approve a developer’s subdivision plan that does not comply with the recommendation of its municipality’s board of health.

PROGRAMMATIC AREAS from A to Z TAKINGS UPDATE Ø On Koontz remand, the Florida Appeals Court affirmed and adopted its earlier decision by reinstating the trial court’s award to the Koontz estate of $376, 154 as compensation for the Water District’s “temporary taking” of the property from 1999 to 2005. St. John’s River Water Management Dist. v. Koontz, 2014 Fla. App. LEXIS 6371 (5 th Dist. Apr. 30, 2014). Ø After Brandt, the Tenth Circuit reversed the original district court’s judgment addressing the Railroad Right of Way and remanded it consistent with the Supreme Court’s decision. The Circuit reaffirmed its original panel Order & Judgment and affirmed the district court’s judgment on the Forest Service Road 512 issues. United States v. Brandt, 559 Fed. Appx. 717 (10 th Cir. 2014). Ø On Horne, the Ninth Circuit determined the narrow issue that the Marketing Order was not a physical per se taking under the Fifth Amendment, observing that courts are not institutionally equipped to modify complex regimes. Horne v. USDA, 750 F. 3 d 1128 (9 th Cir. 2014). On September 8, 2014, Horne filed a petition for a Writ of Certiorari to the Supreme Court, alleging, among other claims, that the Ninth Circuit erred in holding that the categorical requirement of just compensation for property expropriated by the government does not apply to personal property. Petition for a Writ of Certiorari, Horne v. U. S. Dep’t of Agriculture, No. 14 275 (Sept. 8, 2014).

PROGRAMMATIC AREAS from A to Z TIDELANDS, WATERWAYS, AND GREAT PONDS Ø DEP licenses are needed for filling or, occupation of, or construction and use of structures on, “tidelands. ” These are defined as “present and former submerged lands and tidal flats lying between the present or historic high water mark, whichever is further landward and the seaward limit of that jurisdiction. One might think of “public” tidelands involving water above public property, and “private” tidelands involving water over private property. The idea is that public tidelands and Great Ponds and their underlying lands are generally held in trust by the state for the benefit of the general public. Ø Private tidelands, while privately owned, are subject to an easement for public purposes of navigating, passing freely over the water, as well as free hunting and fishing of birds and fish passing freely over the water. These “Reserved Public Rights” date back to the Colonial Ordinances of 1641 and 1647, later codified in Massachusetts General Laws chapter 91.

PROGRAMMATIC AREAS from A to Z TIDELANDS, WATERWAYS, AND GREAT PONDS Ø The DEP regulations under chapter 91 favor licenses for water dependent uses including some industrial uses in designated port areas. The regulations require a balancing of public benefits against private benefits from development, often resulting in negotiating public benefits to be incorporated in projects or to be required by license conditions. Ø Many restrictions govern work and structures on, near, under, or involving the water of Great Ponds. A “Great Pond” is a pond, which in its natural state was more than 10 acres. Ø DEP licenses the construction and use of structures on “Great Ponds, ” public and private tidelands, and those rivers and streams in which the state has invested funds for improvements or protection, pursuant to the state’s Waterways and Tidelands Statutes. These statutes protect the state’s interest in navigation as well as the Reserved Public Rights of fishing, fowling, navigation, and passage over and through the water along the waterfront where the tide ebbs and flows.

PROGRAMMATIC AREAS from A to Z TOXIC CHEMICALS AND PESTICIDES Ø Hazardous chemicals are regulated through the state’s so called Right to Know law. G. L. c. 111 F. Concerned that residents understand the health and safety risks involved in the town's industries, this requires cities and towns to respond to citizens' requests for information on hazardous substances used by local employers in the course of their routine work. It also helps that a town's emergency response personnel are aware of potential hazards. Not only does a town have responsibility for enforcing this law, but also is subject to its terms as an employer. The selectmen designate the municipal coordinator, who is usually the fire chief, fire commissioner, public health commissioner, or public health officer. In small towns, the selectmen may designate one of the board's members to be municipal coordinator.

PROGRAMMATIC AREAS from A to Z TOXIC CHEMICALS AND PESTICIDES Asbestos Ø Friable asbestos defined as an air pollutant by DEP and regulated by DEP and DPH. Ø Provisions of the State Sanitary Code of DPH regulate the repair and removal of asbestos in residential settings. Ø Asbestos removers must be licensed and meet specifications imposed by the Department of Labor and Industries (“DLI”).

PROGRAMMATIC AREAS from A to Z UNDERGROUND TANKS Ø Underground tanks storing chemicals or petroleum products are regulated through the state's Underground Storage Tank Program, G. L. c. 21 J. DEP has issued regulations governing the design, installation, maintenance, monitoring, and removal of tanks, and administers some reimbursement programs to assist in meeting the costs associated with cleanup and removal or replacement of tanks. Ø Cities and towns may adopt tougher tank standards than state and federal regulations through adoption of ordinances and bylaws. Typically, these bylaws authorize a local board or agency, such as the board of health or the fire department, to conduct an inventory of tanks in the municipality, and require local registration of underground tanks. Several communities have required the replacement of older tanks.

PROGRAMMATIC AREAS from A to Z WATER POLLUTION Ø DEP Division of Water Pollution Control and the Bureau of Waste Prevention regulate industrial and other discharges to surface water bodies, as well as discharges to groundwater, large and small septic systems, and industrial sites. G. L. c. 21, §§ 26 53. Ø The Division may enter, inspect and sample sources, issue enforcement orders, suspend or revoke permits, levy administrative penalties, and seek criminal penalties, civil fines, or injunctive relief. Ø A permit may be needed for any activities that foreseeably may result, directly or indirectly, in discharge of pollutants into surface or groundwaters, including stormwater drainage from industrial, commercial, residential, municipal, and agricultural sites.

PROGRAMMATIC AREAS from A to Z WATER POLLUTION Ø NPDES, state waste discharge permitting, and direct discharge requirements all require pretreatment for waste sent to Publicly Owned Treatment Works (POTW). Ø These may be operated by cities, towns, counties or their special districts, or state authorities like the Massachusetts Water Resources Authority (MWRA). Ø Besides the federal and state pretreatment obligations, these POTW have their own rules and regulations with some very detailed design specifications, performance standards, monitoring obligations, and sanctions including civil and criminal fines.

PROGRAMMATIC AREAS from A to Z WATER RIGHTS Ø The Water Management Act, administered by DEP’s Division of Water Supply (DWS), requires registration of withdrawals of water in excess of the 100, 000 gallons per day. This is required of any source (other than a public water system which is highly regulated elsewhere), except for withdrawals in existence by January 1, 1988. DEP approval depends on analysis of safe yields, local and regional water resource management plans, and state criteria including conservation. Safe yield is an important and evolving term of art, involving both law and science. Ø Under another law known as the Interbasin Transfer Act, the Water Resources Commission (WRC) within EOEEA regulates transfers of water across river watersheds. This includes not only water supplies transporting water, but also sewer systems relocating water.

PROGRAMMATIC AREAS from A to Z WATER RIGHTS Ø In order to protect the water supply of the metropolitan Boston area, 1992 legislation known as the Cohen Act, properly called the Watershed Protection Act, imposed land use restrictions, including density limits and prohibitions of certain uses and activities, on lands within portions of the metropolitan watershed system. Within this large watershed area encompassing several towns northwest of Worcester, the state has acquired development rights or other interests in land, imposed regulations on land use activities, and mandated that communities impose added zoning provisions to accomplish the purposes of the Act. Ø The state may purchase or acquire, by eminent domain, easements and related access rights to waters of the Commonwealth.

PROGRAMMATIC AREAS from A to Z WATER WITHDRAWAL & TRANSFER Ø Water Management Act Ø DEP Division of Water Supply administers the MA Water Management Act requiring registration of withdrawals of water in excess of 100, 000 gallons per day from any source (other than a public water supply system), except withdrawals in existence and registered prior to January 1, 1988. G. L. c. 21 G, §§ 1 19. Ø DEP will issue permits for an average daily withdrawal rate in five year increments and may set seasonal peaks as well. DEP reviews all registrations and permits in a river basin together at the end of each five year anniversary to ensure that each has met the conditions of their registration or permit. Ø The thrust of the permit program is to reduce water use, increase reuse and conservation, and minimize the loss of water to a basin through evaporation and out of basin discharge.

PROGRAMMATIC AREAS from A to Z WATER WITHDRAWAL & TRANSFER Ø Water Withdrawal Permits Ø Water Management Act allows for the withdrawal of water by private and public water suppliers by registration and permit. G. L. c. 21 G, §§ 6, 7 Ø Determinations of withdrawal requests involve analysis of safe yields, local and regional water resource management plans, and state criteria. Ø Recent agency and court decisions upheld DEP’s conservation oriented conditions in water withdrawal permits for municipalities. These conditions include reduced outdoor lawn watering when stream flows are low, capped summer water withdrawals, performance standards for residential use and “unaccounted for water, ” and mandated water bank if water use exceeds a community's total allocation.

PROGRAMMATIC AREAS from A to Z WATER WITHDRAWAL & TRANSFER Ø Municipalities have the authority to adopt “reasonable health regulation” ordinances or bylaws that are stricter than the state’s. G. L. c. 40 § 21 and c. 111 § 31. Ø The Water Resources Commission in EOEEA and the Division of Water Resources in DEM regulate transfers of water across river basins. Ø To protect the water supply of metropolitan Boston, 1992 legislation imposed land use controls – including density restrictions and activity prohibitions – on lands within the metropolitan watershed system.

PROGRAMMATIC AREAS from A to Z WETLANDS AND FLOODPLAIN LAW ØWetlands Protection Act, M. G. L. c. 131, § 40 ØIn conjunction with DEP regulations, the WPA covers basic procedures for protection of wetlands, related water bodies, and flood prone areas. DEP’s Division of Wetlands and Waterways supervises the administration of the Act by promulgating regulations governing work in and near wetlands and related water resources and flood prone areas, all known as Resource Areas. ØAny development project which involves filling, dredging, grading, construction, or other alteration to wetlands, water bodies, riverfront areas, or flood prone areas (or in buffer areas around some of these Resource Areas) may trigger the WPA by requiring an application and permit from the conservation commission or DEP on appeal. Also banks, beaches, dunes, and meadows bordering water bodies. Jurisdictional rulings may be requested.

PROGRAMMATIC AREAS from A to Z WETLANDS AND FLOODPLAIN LAW Ø Work inside or otherwise altering a Resource Area needs an application known as Notice of Intent (“NOI”) filed with the conservation commission, unless the work enjoys an exemption, exception, exclusion, or other relief from jurisdiction per the WPA, DEP regulations, or Special Act of the Legislature. Ø Work in a 100 foot Buffer Zone around some Resource Areas may trigger jurisdiction and the developer has the option of filing a NOI or, instead, a Request for Determination (“RDA”) or more formal ruling (“ORAD”). This is known as a Buffer Zone project. Ø Work outside a Resource Area and any Buffer Zone may be regulated under the Act, but only when and if it causes alteration of a Resource Area. This is known as after the fact jurisdiction.

PROGRAMMATIC AREAS from A to Z WETLANDS & FLOODPLAIN LAW Ø DEP Procedure Under the WPA Ø If appealed, the decisions of local conservation commissions are subject to Superseding Orders of Conditions (“SOC”) or Superseding Determinations by DEP. Ø DEP will grant adjudicatory hearings after the issuance of a SOC or Determination if requested by the applicant/landowner, the conservation commission, or any person aggrieved IF previously a participant in the permit proceedings. Ø "Previous participation" is defined as “the submission of written information to the conservation commission prior to close of the public hearing, requesting a Superseding Order or Determination, or providing written information to the Department prior to issuance of a Superseding Order or Determination. ”

PROGRAMMATIC AREAS from A to Z WETLANDS &FLOODPLAIN LAW Ø In 1996 the MA Rivers Protection Act was enacted. It regulates virtually all activities next to rivers and other flowing bodies of water. Essentially the Act added a new Riverfront Area to the Resource Areas protectable under the Wetlands Protection Act, thereby extending the jurisdiction of the WPA. 1996 Mass. Acts c. 258. Ø The Act also amended the WPA to require applicants to prove they meet a two part test “by a preponderance of the evidence” that: 1) [the work proposed], including proposed mitigation measures, will have no significant adverse impact on the Riverfront Area and 2) there is no practicable and substantially equivalent economic alterative with less adverse effects on such purposes.

PROGRAMMATIC AREAS from A to Z WETLANDS &FLOODPLAIN LAW Ø The SJC ruled that the WPA’s 21 day deadlines for local conservation commissions to hold a public hearing on a notice of intent and to issue a decision after the public hearing are waivable by the applicant, provided the waiver is: (1) intentional, (2) "voluntary in fact, " (3) of a reasonable and definite duration, and (4) publicly noticed. Garrity v. Conservation Commission of Hingham, 462 Mass. 779 (2012)

PROGRAMMATIC AREAS from A to Z WETLANDS & FLOODPLAIN LAW ØThe Dam and Seawall Repair and Removal Fund Ø Massachusetts Executive Office of Energy and Environmental Affairs is in charge of administering Ø To assist with growing need for repair of dams and coastal and inland flood control structures Ø The fund is used to provide grants and loans to qualified organizations in order to finance the costs of repair and removal projects for dams, levies, seawalls, jetties, revetments, retaining walls, and other flood control structures Ø Created pursuant to authority from M. G. L. c. 29, § 2 IIII and regulations issued under 301 C. M. R. § 15. 00

PROGRAMMATIC AREAS from A to Z WETLANDS & FLOODPLAIN LAW FEDERAL Ø Section 404 of the federal Clean Water Act (“CWA”) regulates discharge of dredged or fill material into the waters of the United States, which includes federal wetlands, by requiring Corps of Engineers (“COE”) permit, with input from the Environmental Protection Agency (“EPA”), before such activity. Ø The US Supreme Court added confusion to what is a “federal wetland” with its Rapanos and Carabell decisions. A plurality ruled that wetlands adjacent to non navigable tributaries are protectable “waters of the United States”only if the tributary to which the wetland is adjacent is a “relatively permanent” water body and the wetland has a “continuous surface connection” with the tributary. Rapanos v. US, 126 S. Ct. 2208 (2006).

PROGRAMMATIC AREAS from A to Z WETLANDS BYLAWS: Home Rule OVERVIEW Ø Local permit program administered by the Conservation Commission Ø Uses general bylaw and ordinance authority in G. L. c. 40 § 21 and Home Rule Amendment to the Massachusetts Constitution, Articles II and LXXXIX Ø For local bylaws & regulations http: //maccweb. org/resources_bylaws. html TYPICAL LOCAL BYLAW Ø Jurisdiction and procedure similar to Wetlands Protection Act. Clarifies and expands jurisdiction and requirements beyond Act to be stricter than DEP Ø Fewer exemptions than in Wetlands Protection Act with explicit authority to disapprove projects or impose setbacks and mitigation Ø Most bylaws allow public hearing on an application to be combined with Wetlands Protection Act hearing, but appeals are to both DEP and Court ENFORCEMENT Ø Typical site inspections, violation notices, and enforcement orders. As well as traditional remedies for injunctions and civil forfeitures in Superior Court, and criminal prosecution with criminal fines and incarceration Ø Bylaws following the MACC model include the “ticketing” approach outlined in G. L. c. 40, § 21 D for so called non criminal dispositions

PROGRAMMATIC AREAS from A to Z WETLANDS BYLAWS: Home Rule Ø Conservation Commissions Ø Ø Ø Implement both the local wetland bylaws and WPA. Reviews NOIs and RDAs for projects under regulations the commission has promulgated. These typically are to be more strict than those of DEP. Hold quasi judicial public hearings like a planning board or zoning board. These are supposed to be adjudicatory in nature. Schedules and continues hearings as commission decides. Makes decisions based on document records at hearings. If the commission fails to issue its decision within the timeframe specified by municipal bylaw, a denial issued later is a nullity and the DEP SOC governs the project. The SJC noted that a commission’s failure to timely act did not constitute constructive approval. Oyster Creek Preservation, Inc. v Conservation Commission of Harwich, 449 Mass. 859 (2007) Decisions separately reviewable in DEP (under WPA) and court (bylaw)

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES Ø Changes Pending to the Federal ESA Ø Two new rules proposed by the U. S. Fish and Wildlife Service and the National Marine Fisheries Service Ø One rule redefines “adverse modification” by emphasizing species recovery after being listed as endangered under the ESA. The other rule clarifies the scope of critical habitat based on geographic range of the species. Ø There is also a proposed policy in the works dealing critical habitat designation exclusions. It would require the government to look at national security and economic impact before making the determination and includes a benefits analysis to compare designating land versus excluding the land.

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES Ø MA Endangered Species Act Ø MESA protects rare species and their habitats by prohibiting the “take” of any plant or animal listed as endangered, threatened, or of special concern by the MA Division of Fisheries & Wildlife (“DFW”). Ø Regulations broadly define Take: “in references to animals to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat. ” Ø If a project falls within Priority Habitat of rare species and does not meet MESA filing exemptions, proponents must file with the Natural Heritage & Endangered Species Program (“NHESP”). This is independent of the requirement to submit to NHESP a copy of NOI under DEP’s WPA rules for a project located in an Estimated Habitat for Rare Wildlife.

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES ØReview of Projects/Activities Outside of Priority Habitat ØA Project or Activity may be subject to MESA review if: ØSubject to MEPA review, and ØDivision has credible evidence that a State listed Species or habitat is within the area to be disturbed. ØA Project or Activity also may be subject to MESA review where new information on a State listed Species occurrence is received by the Division, prior to: ØThe issuance of a final Order of Conditions by Conservation Commission, ØThe issuance of any permit subject to a public hearing that was publicly noticed, or ØFifteen days after the issuance of a building permit not subject to public hearing.

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES ØConservation and Management Permits ØDirector may permit a “take” for conservation and management purposes provided there is a Long Term Net Benefit. ØApplicant must show that impacts are avoided, minimized, and mitigated consistent with the following performance standards: ØAdequately assessed alternatives for both temporary and permanent impacts, ØAn insignificant portion of the local population would be impacted, and ØAgreement to carry out an approved Conservation and Management Plan that provides for the Long Term Net Benefit. ØAn applicant who has made every reasonable effort to avoid, minimize, and mitigate impacts but cannot provide for the Long Term Net Benefit on site, may still be approved for off site mitigation.

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES Ø Conservation and Management Permits Ø Director must respond in writing within 30 days of submission of a final Conservation and Management Permit. Ø Failure to respond constitutes constructive approval unless the project is undergoing MEPA review. Then 30 days after issuance of a final MEPA certificate or submission of the Conservation and Management permit application, whichever is longer. Ø Director may extend the 30 day response time for two successive 30 day periods due to circumstances beyond the control of the Division. Ø Application guidelines for MESA Conservation and Management Permits can be found at: http: //www. mass. gov/eea/docs/dfg/nhesp/regulatory review/cmpermitguide 06. pdf

PROGRAMMATIC AREAS from A to Z WILDLIFE & ENDANGERED SPECIES Ø Administrative Appeals Ø Ø Ø 1. Any person aggrieved by a final agency decision may appeal: Delineation of Priority Habitat, Review of a proposed Project or Activity in Priority Habitat Conservation and Management Permit. Written appeal must be pursuant to G. L. c. 30 A and 801 CMR 1. 02 and 1. 03 and hand delivered or post marked within 21 days of the final agency decision. Request must contain: Specific facts showing how the requirement of “aggrieved person” are met: a. b. A definite interest in the matters in contention within the scope of interests or area concern, and Must have suffered an actual injury which is special and different from that of the public and which has resulted from violation of a duty owed to them by the Division; 3. 4. Clear statement that an appeal is being requested; Clear and concise statement of facts which are grounds for the appeal and specific objections to Division actions; and Relief sought. 5.

PROGRAMMATIC AREAS from A to Z ZONING Ø Zoning is administered by municipalities through the Zoning Enforcement Officer (ZEO), usually the building inspector or the building commissioner, and the board of appeals or other designated permit granting authority. There also may be site plan review by the board of selectmen or another designated board. Ø Essentially, municipalities may elect to use the zoning power or the general bylaw power (and in some instances, both) to accomplish important public purposes.

PROGRAMMATIC AREAS from A to Z ZONING Ø Sustainable Development Principles & The Smart Growth Zoning Overlay District – M. G. L. c. 40 R Ø Promotes mixed use, affordable housing, compact design, open space, and transportation in a new zoning district in an “eligible location” within ½ mile of a transit station OR in a municipal center OR in a “highly suitable” location. The Department of Housing and Community Development (DHCD) administers c. 40 R through 760 CMR 59, amended Nov. 22, 2013. Ø The former Charlestown Chew factory is currently being redeveloped under c. 40 R. The redevelopment team has spent $90 million from private funding to remediate site contamination, address parking and stormwater issues, and renovate the blighted warehouse into a 328 unit, seven story apartment community within Everett’s Smart Growth Zoning District. The project also reused many of the original building materials. * http: //ma-smartgrowth. org/resources/smart-growth-projects/ (source and photo credit: Massachusetts Smart Growth Alliance Projects 2013)

PROGRAMMATIC AREAS from A to Z ZONING Ø Smart Growth Zoning Districts Approved, Eligible, or Under Review in Massachusetts Ø Once DHCD has granted approval, then the municipality can adopt the Smart Growth Overlay District, and become eligible for zoning incentive payments: Ø $10, 000 for up to 20 units; $75, 000 for 21 100 units; $200, 000 for 101 200 units; $350, 000 for 201 500 units; to $600, 000 for 501 or more units of housing Ø $3, 000 density bonus payment for each additional unit of housing built within the district Ø M. G. L. c. 40 S reimburses any net costs of educating student in new district housing Ø Municipalities with Smart Growth Zoning Districts are preferred recipients of DHCD, EOEEA, Transportation, and Administration and Finance awards of discretionary funds

PROGRAMMATIC AREAS from A to Z ZONING Ø Municipal Land Use Plans Ø A Comprehensive or Master Plan is optional, but important. Plans support zoning ordinances and bylaws, subdivision regulations, public health rules, land acquisition, building programs, and road or utility construction. Ø Professional consulting, public participation, wide publication, and periodic updates yield good plans. The state offers some limited financial and technical assistance for community planning. There are incentives in the Cape Cod Commission Act, for the 15 Cape towns to prepare local comprehensive plans consistent with regional policy. Ø Some types of plans are necessary, though, to qualify for state grant programs or to enjoy eligibility under the Green Communities Act (GCA). Ø The Subdivision Control Act requires planning boards to prepare master plans, but it does not actually require that any laws or regulations be based on them. M. G. L. c. 41, §§ 81 K 81 GG. The Zoning Act permits municipalities to enact an array of zoning measures, but it does not require that such zoning be based on a plan. Image Credit: Dodson & Flinker Newburyport Strategic Land Use Plan

HOW TO BE AN EFFECTIVE ENVIRONMENTAL LAW ADVOCATE Ø Learn about environmental agency organization and “who’s who. ” This means headquarters and regional office authority. Identify roles of division chiefs and directors. Find out who are the real decision makers. Ø Master the substantive and procedural requirements of the agency. These are notice requirements, document deadlines, submittal requirements, performance standards, design specifications, and appeal avenues. Ø Collect all applicable laws and regulations. Obtain previous permits and typical permit conditions. Get any guidelines. Research cases.

HOW BEST TO APPROACH ENVIRONMENTAL AGENCIES Ø Make informal contact with low level agency officials to get tentative reactions to any proposals and submittals. Make early informational filings with them. Senior staff rely on them, so pitch to them. Meet their needs. Ø Solicit agency ideas and incorporate their ideas in projects. Let the agency personnel feel they have a role in shaping proposals before they are cast in stone and formally submitted. Ø Allow all to see the “larger plan” and avoid the “pinball effect” whereby applicants bounce from one agency to another. Consider arranging coordinated filings, joint meetings, distribution lists, and deadlines for feedback.

HOW TO ADVANCE THE INTERESTS OF ENVIRONMENTAL CLIENTS Ø Communicate with agencies openly. Anticipate likely reactions and concerns. Understand use agency precedents, common approaches, and traditional practices. Keep a record of all contacts, meetings and phone calls. Memorialize in writing all expectations and commitments. Thank them for time and input. Ø Plan ahead for agency meetings and hearings. Avoid pointless, premature sessions with high level agency officials who will spot issues, ask for more data, and then rely on staff reviews anyway. Ø Work up the agency ladder so that a “yes”is final at any level but a “no” can go higher. Never accept a “no” answer.

HOW TO MAXIMIZE THE CHANCE OF SUCCESS FOR THE CLIENT Ø Use the persuasive approach, relying on the strength of your information. Master your project to show it meets all standards “and then some. ” Argue established law, fair process, and sensible policy. Be firm but civil. Appear ready, willing and able to appeal. Ø Lobby around the agency’s back only rarely, but utilize political clout when necessary. More often than not, political muscle is most useful by “holding it back. ” Let the agency know you can and would if needed enlist strong outside influence in support. Ø Secure the support of constituents, organizations and the public.

STYLE POINTS FOR THE ENVIRONMENTAL ATTORNEY Ø Answer questions fully and accurately, but do not acquiesce in unending requests for more information. Repeat and confirm requests until they are precise. Confirm your responses, even if not liked. Ø Make clear what you seek and why, and that you provided everything legally required and reasonable. Label anything else a voluntary or courtesy submittal. Explain the context for the decision to be made. Ø Stay calm. Lawyers can be most effective by leading others to common ground through careful listening, rather than by aggressively staking out legal arguments. Outspokenness will be more effective if you stay measured. Ø Thank the agency or board orally and in writing for its consideration.

TRENDS IN ENVIRONMENTAL LAW Ø Streamlined, coordinated, predictable permitting. Ø Achieve objective environmental results. Ø Preserve open space and historic resources. Ø Foster conservation and alternative energy sources. Ø Integrate business, housing and transportation. Ø Clean up and redevelop contaminated land.

MORE TRENDS IN ENVIRONMENTAL LAW Ø Adopt consistent, concerted government policies. Ø Make transparent environmental decisions. Ø Conserve nonrenewable natural resources and manage the renewable. Ø Adapt for climate change. Ø Manage for ecosystem health (biodiversity preservation). Ø Merge environmental and economic consideration for long term survival of both.