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.
About
half of the 351 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 (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 Act,
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 myriad of 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 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 AE-zones and a higher rate (“at least” 2 feet
per 100 years) for work in the VE-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 AE-zone must be at least 1 foot above the base
elevation, and 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.”
An
applicant must address in a narrative: 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 the definitions to its regulations, such as “adaptation”,
“extreme weather event”, “impacts of climate change”, and “resilience.”
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, 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, but are turning to their own wetland
regulations.
Nathaniel
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.
