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 enactment: https://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
