Tuesday, August 25, 2020

Municipalities Build Climate Change Resiliency Using Local Wetland Regulations

By Nathaniel Stevens

The Real Estate bar is discovering that coastal as well as inland communities in Massachusetts increasingly are looking to their local wetland permitting

laws and regulations as one place to help build climate change resilience.  This is one more thing to keep in mind during project permitting.

191 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance (collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act, G.L. c. 131, § 40 (the “WPA”). 

Some of these communities already have provisions that address climate change.  Others are contemplating amending their existing bylaws and regulations to do so.  Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community.  To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA.  Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation.  It also might mean regulating a greater geographic area than the WPA, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland).  It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00).  These are but a few of the many ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review. 

For instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years.  Hingham has a similar requirement, but also applies it to projects proposed in the FEMA-defined velocity zone (“V-zone”).  Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence”, such as from the Intergovernmental Panel on Climate Change, be used.  Falmouth has one rate (“at least” 1 foot per 100 years) for work in A-zones and a higher rate (“at least” 2 feet per 100 years) for work in the V-zone.        

As sea levels rise, coastal wetland resource areas are predicted to shift landward.  Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain.  The lowest floor of a structure in a FEMA-mapped A-zone must be at least 1 foot above the base elevation, and in the V-zone, the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission.  Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater.  Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Inland communities are also using their wetland permitting programs to build climate change resiliency.  The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.” 

In Arlington, an applicant must address in writing:  1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts.  With the introduction of new terms, the Commission added definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience”, in part because climate change resiliency vocabulary is new to a lot of people.

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance.  Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them.  For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain.  “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible.  Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts. 

In conclusion, real estate developers, builders, managers, brokers and their legal counsel should realize that Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities.  They are instead utilizing their own land use control authorities like wetland protection regulations.  

Nate Stevens is a Senior Associate at McGregor & Legere, P.C. in Boston where his practice focuses on land use and environmental law and related litigation.  He is also the Chair of the Town of Arlington Conservation Commission.  He can be contacted by email at NStevens@mcgregorlaw.com.

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