The Commonwealth of Massachusetts

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DEVAL L. PATRICK GOVERNOR TIMOTHY P. MURRAY LIEUTENANT GOVERNOR

Executive Department State House  ·  Boston 02133 (617) 725-4000

March 1, 2007.

To the Honorable Senate and House of Representatives:

   I am filing for your consideration the attached legislative proposal, entitled, “An Act Regarding the Licensing Requirements For Landlocked Filled Tidelands.”  Although I do not believe that this legislation involves a transfer or relinquishment of any rights to public trust lands, in order to remove any doubt about the proper legislative procedures, I urge you to treat this bill as if Article XCVII of the Massachusetts Constitution applies to this legislation.

   This legislation provides the department of environmental protection with the authority to exempt certain landlocked tidelands from the waterways licensing requirements of chapter 91 of the Massachusetts General Laws.  For at least seventeen years, the department of environmental protection exempted, by regulation, landlocked filled tidelands that do not abut the water.  This regulation successfully allowed for the development of parcels of land that have no meaningful access to the waterfront, and it avoided an unnecessary strain on the department’s staff and resources. 

On February 12, 2007, the Supreme Judicial Court ruled that the department of environmental protection did not have legislative authorization for this exemption.  As a result, there is great concern that the titles in many parcels of land across the Commonwealth containing existing uses and structures, or those slated for future development are clouded.  This legislation will resolve those concerns, and facilitate the development of landlocked tidelands for the benefit of the people of the Commonwealth by authorizing the department of environmental protection to continue its successful seventeen-year practice.

Accordingly, I urge your prompt and favorable consideration of this bill.

Respectfully submitted,

                                                                                       DEVAL L. PATRICK,

                                                                                       Governor.

The Commonwealth of Massachusetts

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In the Year Two Thousand and Seven.

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An Act regarding the licensing requirements for landlocked filled tidelands

Whereas, the deferred operation of this act would defeat its purpose, which is  to authorize a regulatory exemption for certain landlocked tidal lands from license requirements, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

        Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.  The general court finds that:

(a) In 1990, the department of environmental protection adopted a regulation exempting activities within certain landlocked tidelands from the licensing requirements established by chapter 91 of the General Laws, which landowners relied on for the purchase and improvement of certain landlocked tidelands.

(b)  The Supreme Judicial Court has held that the department of environmental protection lacks statutory authorization for the exemption.

(c) Passage of this act, which authorizes the department of environmental protection to exempt certain landlocked tidelands from the licensing requirements established by chapter 91 of the General Laws, will promote the public interest by maintaining marketable titles and continuing the beneficial redevelopment and economic revitalization of such landlocked tidelands.  Further, the redevelopment and revitalization facilitated by this exemption maintains and increases the public’s access to the waterfront.  Any benefits to private parties from this authorization will be incidental to the achievement of these public purposes.

SECTION 2. Section 1 of chapter 91 of the General Laws, as appearing in the 2004 Official Edition, is hereby amended by inserting after the definition of “Department” the following definition:-

“Landlocked tidelands”, filled tidelands, which on January 1, 1984 were entirely separated by a public way or interconnected public ways from any flowed tidelands, except the portion of such filled tidelands which are presently located: (a) within 250 feet of the high water mark of flowed tidelands; or (b) within any designated port area under the Massachusetts Coastal Zone Management program.  A public way or ways shall also be defined as landlocked tidelands, except for any portion thereof which is presently within 250 feet of the high water mark of flowed tidelands.

SECTION 3. Section 18 of said chapter 91, as so appearing, is hereby amended by adding the following paragraph:-

The department may adopt regulations that exempt landlocked tidelands from licensing.  Unless the department adopts regulations to the contrary, no license under this chapter shall be required for fill on landlocked tidelands, or for uses or structures within landlocked tidelands. 

SECTION 4. This act shall apply to all fill, uses and structures existing before, on, or after the effective date of this act.  Regulations of the department of environmental protection exempting landlocked tidelands from licensing before the effective date of this act are hereby validated and confirmed as if this act had been in effect when such regulations were issued.  No fill, use or structure developed pursuant to such regulations shall be subject to challenge on the ground that the department of environmental protection lacked the authority to issue such regulations.