July 15, 2022

DEP's Municipal Harbor Plan Regulations Invalid

You've Reached Your
Free Article Limit This Month
Register for free to get unlimited access to all OnPractice content.
Register Now

The Massachusetts Supreme Judicial Court has ruled that the Department of Environmental Protection (DEP) did not have authority to give the Secretary of Environmental Affairs the power to approve municipal harbor plans containing less stringent standards than DEP's own regulations. Armstrong v. Sec'y Energy & Envtl. Affairs, No. SJC-13210 (Mass. July 12, 2022). In the highly anticipated decision, the Court uprooted a regulatory scheme that has been in place for 30 years, concluding that DEP cannot delegate the public trust responsibilities specifically assigned to it by the legislature under the Massachusetts Public Waterfront Act, Mass. Gen. L. chap. 91; only the legislature can assign these duties.

By way of background, Massachusetts courts have consistently held that tidelands are impressed with a public trust. The legislature is charged with protecting that trust interest, but it can by specific actions delegate its obligations. Chapter 91 delegates the regulatory authority over waterfront development to DEP. DEP adopted regulations setting out standards for development along waterways, 310 CMR § 9.00.  Those DEP regulations authorize municipal harbor plans (MHPs) under which a municipality can vary the standards for nonwater-dependent development in the area impressed with the public trust, provided that the Secretary of Environmental Affairs approves the MHP.

The Armstrong decision holds that the public trust doctrine does not allow for implicit delegations of regulatory authority. The legislature must be explicit. Therefore, reasoned the Court, an MHP approved by the Secretary, but not by DEP, cannot set the height, setback, and other standards for development.

The Armstrong court did not address the implications of its ruling for waterfront real estate developments that have been approved over the past three decades using the provisions for municipal harbor plans. Many anticipate that the state's legislature or the DEP itself will move to issue "curative" measures. Indeed, DEP has proposed revisions to its regulations motivated by the Appeals Court decision in Armstrong summarized here: EOEEA Summary of Draft Regulations.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Greenberg Traurig

Can a business require a consumer to submit a declaration under penalty of perjury in order to prove their identity?

By David A. Zetoony Greenberg Traurig November 22 , 2022

The regulations implementing the CCPA require that a business verify the identity of a consumer that submits a specific-information access request to a “reasonably high degree of certainty.”

FINRA Targeting Crypto Asset Retail Communications

By William B. Mack Greenberg Traurig November 22 , 2022

The Financial Industry Regulatory Authority (FINRA) in November 2022 released a targeted exam letter pertaining to communications for crypto products and services.

New York State Cannabis Control Board Releases Proposed Adult-Use Regulations

By Lynelle K. Bosworth Greenberg Traurig November 22 , 2022

On Nov. 21, 2022, the New York State Cannabis Control Board (CCB) approved draft regulations governing the Adult-Use Cannabis program.

More From Environmental Law

City of Atlanta Adopts New Protections for Criminal History Status, Gender Expression

By Emily S. Borna Jackson Lewis P.C. November 29 , 2022

The Atlanta City Council has amended the City of Atlanta Anti-Discrimination Ordinance to extend protections to citizens on the basis of criminal history status and gender expression in employment, housing, and public accommodations.

U.S. Supreme Court Hears Oral Argument on Where Businesses Can Be Sued

By Stephanie L. Adler-Paindiris Jackson Lewis P.C. November 17 , 2022

The constitutionality of Pennsylvania’s “registration statute,” which requires corporations that register to do business in Pennsylvania consent to the “general personal jurisdiction” of Pennsylvania, was the subject of oral argument in the U.S. Supreme Court on November 8, 2022.

Alternative Dispute Resolution (ADR): Considerations for Real Estate Businesses in an Unpredictable Market

By Thijs Elseman Greenberg Traurig November 17 , 2022

Unpredictable market conditions require innovative solutions to tackle business challenges.

Featured Stories