SENATE, No. 2309

The Commonwealth of Massachusetts

In the Year Two Thousand and Seven.

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 said 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 achieving these public purposes.

SECTION 2. Section 61 of chapter 30 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “grounds”, in line 16, the following words:- , reduction of groundwater levels, impairment of water quality, increases in flooding or storm water flows.

SECTION 3. Section 1 of chapter 91 of the General Laws, as so appearing, is hereby amended by inserting after the definition of “Department” the following 2 definitions:-
“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. For the purposes of this definition, a public way may also be a landlocked tideland, except for any portion thereof which is presently within 250 feet of the high water mark of flowed tidelands.
“Public way”, a road, street or highway for vehicular use, open to the public and for which a public agency is responsible for maintenance and repair.

SECTION 4. Section 18 of said chapter 91, as so appearing, is hereby amended by adding the following 2 paragraphs:-
The department may adopt regulations that exempt landlocked tidelands from licensing under this chapter. Unless the department adopts regulations requiring licensing under this chapter, no license under this chapter shall be required for fill on landlocked tidelands, or for uses or structures within landlocked tidelands.
The proponent of any new use or structure, or modification of an existing use or structure, within landlocked tidelands who is otherwise required to file an environmental notification form pursuant to section 62A of chapter 30 shall comply with the requirements of this paragraph.  The environmental notification form, and the environmental impact report, if the latter is required, shall include a discussion of the project’s impact on the public’s right to access, use and enjoy tidelands as protected by this chapter, and shall identify and commit to taking measures to avoid, minimize or mitigate any adverse impact on such rights set forth herein.  The environmental notification form, and the environmental impact report, if the latter is required, shall also include a discussion of the project’s impact on groundwater levels if the project is located in an area where low groundwater levels have been identified by a municipality as a threat to building foundations, and shall identify and commit to taking measures to avoid, minimize or mitigate any adverse impact on groundwater levels.  Measures identified by the secretary of the executive office of energy and environmental affairs pursuant to this section shall be set forth in a Massachusetts policy act certificate on the environmental notification form, or in a certificate on the environmental impact report, if the latter is applicable.  Within 30 days after the issuance of a certificate under this paragraph, the proponent shall file with the department of environmental protection a completed form notifying the department that work will be conducted within landlocked tidelands, and shall attach the Massachusetts environmental policy act certificate to the form.  The proponent shall comply with all obligations set forth in the certificate pursuant to this section, and the department shall have the authority to enforce such conditions consistent with this chapter.

SECTION 4A. Said chapter 91 of the General Laws is hereby amended by inserting, after section 18, the following section:-

Section 18 ½.  The secretary of energy and environmental affairs shall appoint an individual to act as the chapter 91 information officer.  The individual shall be qualified by training and experience to perform the duties and exercise the powers of this position as provided in this section.  The duties of this office may be exercised in combination with other duties, as the secretary shall see fit. The chapter 91 information officer shall perform the following duties as directed by the secretary: 1) prepare an annual report on the public benefits required by licenses issued under this section;  2)  file the report not later than January 31 of the following year with the joint legislative committee on natural resources and agriculture and the house and senate committees on ways and means; 3)  make recommendations to said committees, the secretary, and the department of environmental protection with respect to such public benefits and any proposed changes in regulations or procedures to improve the chapter 91 licensing process; and 4) be available to work with members of the public to answer questions about the chapter 91 licensing process, to provide history and context regarding chapter 91 and to discuss past and future decisions. The chapter 91 information officer may have input in, but not direct responsibility for, the licensing process once an application for that project has been filed with department of environmental protection.

SECTION 5. The eleventh paragraph of section 18 of chapter 91 of the General Laws, inserted by section 4, shall apply to all fill, uses and structures, whether existing before, on or after the effective date of this act.

SECTION 6.  The twelfth paragraph of said section 18 of said chapter 91, inserted by said section 4, shall only apply to proponents who file environmental notification forms after the effective date of this act.

SECTION 7.  Regulations of the department of environmental protection exempting landlocked tidelands from licensing before the effective date of this act and determinations of applicability are hereby validated and confirmed as if this act had been in effect when regulations and determinations of applicability were issued. Any fill, use or structure developed pursuant to such regulations shall not be subject to challenge on the ground that the department of environmental protection lacked the authority to issue such regulations.

SECTION 8.  The department of environmental protection shall undertake a study of ground and surface water flow and drainage in the sections of the cities of Cambridge, Somerville and Boston formerly identified as the Miller’s River.  This report shall be filed with the clerks of the house and senate not later than April 1, 2008.