Friday, January 3, 2020

Home Rule Meets Climate Change: New Wetlands Ordinance in Boston



On December 23, 2019, the City of Boston joined the almost two-thirds of the Commonwealth’s 351 municipalities in having more
stringent requirements for work in and near wetlands, waterbodies, and floodplains.  Unlike many of those other municipalities, the explicit purpose of Boston’s wetlands ordinance is to address climate change, through adaptation and building resiliency.

A municipality has the power to enact a wetland ordinance (in a city) or bylaw (in a town) under its Home Rule authority, under the Home Rule Amendment to the state Constitution, as long as the provisions are more stringent than the state Wetlands Protection Act, G.L. c. 131, § 40  (WPA).  The Mayor of Boston signed this one December 23.

Being more stringent often includes regulating a greater geographic area than the WPA.  Like many other communities, Boston’s new ordinance regulates work proposed in isolated wetlands and vernal pools while treating the 100-foot Buffer Zone as its own wetland resource area. 

Boston in its new ordinance creates some new resource areas reflecting its concerns about climate change, including what are termed Inland and Coastal Flood Resilience Zones.  The Boston Conservation Commission is given the task of delineating them.  

Specifically, the Coastal Flood Resilience Zone, or CFRZ, is “the area of land beyond the current boundary of land subject to coastal storm flowage [100-year flood plain] or land subject to tidal action that the Commission determines has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to sea level rise (SLR) within approximately the next 50 years.”

The Commission is empowered to delineate the CFRZ on maps published after public hearing and comment.  The Commission can divide the CFRZ into sub-zones with different regulatory requirements. 

Similarly, the Inland Flood Resilience Zone or IFRZ, is “the area of land beyond the current boundary of land subject to flooding [caused by the 1%-chance storm] that the Commission determines has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years.”

Likewise, the IFRZ is to be delineated on maps published by the Commission and shall be consistent with other climate change planning documents used by other City officials.

The Commission also is given the authority to designate “Extended Riverfront Areas”, which enlarges to 200 feet the otherwise 25-foot wide Riverfront Area; the WPA sets a 25-foot wide Riverfront Area for several specified large cities and densely developed areas.

Procedurally, the Commission must “explicitly consider climate change resilience and impacts” in its decision to approve or deny a permit, by measuring the potential adverse impacts to wetland resource areas both as they currently exist and as are reasonably expected to exist “based on the best available data on the projected impacts of climate change.” 

The Commission is cautioned, however, not to use its newfound authority “to prevent beneficial projects whose primary purpose is protection of resource areas and reduction of risk from coastal flooding, inland flooding, extreme weather, sea level rise and other adverse impacts of climate change.”  The Commission can enact procedures to advance and expedite such projects.

Applicants before the Commission are to integrate climate change and adaptation planning considerations into their project to promote climate change resilience and promote resource area values.  Considerations include sea level rise, increased heat waves, extreme precipitation events, stormwater runoff, changing precipitation patterns and changes in coastal and stormwater flooding.   

Within the climate change planning considerations, the Commission may, through regulations or guidelines, require an applicant to address climate equity and environmental justice.

All eyes now turn from the City Council and Mayor to the Conservation Commission to see how it implements its many duties and opportunities under this wetlands protection ordinance, in new maps and regulations as well as permit-by-permit.

Boston’s new “Wetlands Protection and Climate Adaptation” ordinance can be found here in Section 7-1.4 of Chapter VII of the City’s Ordinances.  Here’s a link to the Mayor’s page concerning its enactmenthttps://www.boston.gov/news/mayor-walsh-signs-local-wetland-ordinance


A member of the Association’s environmental law section, Nathaniel Stevens practices with the Boston firm of McGregor & Legere, P.C.  He represents clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel can be contacted by email at nstevens@mcgregorlaw.com

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