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July 15, 2022

DEP's Municipal Harbor Plan Regulations Invalid

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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.

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