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New Developments in Environmental Law
Wetlands & Floodplains (11)
WOTUS OVERTURNED BY SCOTUS: Sackett v. EPA Redefines What is a Federal Wetland
Written by Gregor I. McGregor, Esq.
/ Published
Friday, 09 June 2023 14:52
On May 25 the United States Supreme Court, ruling in the case of Sackett v. EPA, sharply limited the scope of protection for the nation’s waters under the federal Clean Water Act (CWA). The Court redefined the CWA’s coverage of “waters of the United States” which had been hotly contested since the Court’s previous decision on point and EPA’s regulatory expansion of what adjacent wetlands are included.
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Representing Clients on Wetlands Permits & Determinations Before Conservation Commissions: Make the Tactical and Strategic Choices for Success
Written by Gregor I. McGregor, Esq.
/ Published
Friday, 27 January 2023 15:11
Live WebcastDate: February 7, 2023Time: 9:30 AM CLICK HERE TO REGISTER >> Learn about the substantive laws that govern your client's applications, such as the: Wetlands Protection Act and municipal bylaws; Home Rule principles and preemption; Open Meeting Law rules (for live, remote, and hybrid); and related federal and state permits and licenses.
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Supreme Judicial Court Instructs Conservation Commissions on Home Rule Wetland Protection Power: Use It or Lose It
Written by Gregor I. McGregor, Esq.
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Thursday, 25 August 2022 15:16
The Appeals Court in 2016 had taught the lesson well, but many boards, attorneys and clients apparently missed that class, so the Supreme Judicial Court has instructed us again, this time in a masterclass.
21-Day Timing Provisions in the Wetlands Act Are Obligatory and Pre-Empt Local Wetland Bylaws
Written by Gregor I. McGregor, Esq.
/ Published
Thursday, 14 April 2022 11:08
Local wetlands bylaw (or ordinance) jurisdiction over projects in and near resource areas depends on Conservation Commission compliance with the 21-day deadlines for commencing public hearings and issuing decisions on Notices of Intent (NOI). Indeed, you may safely regard those timing provisions in the state Wetlands Protection Act (the Act) as binding on the Commission, with failure to meet them potentially fatal to any decision the Commission may render.
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Boston Enacts Wetlands Protection Ordinance to Address Climate Change
Written by Nathaniel Stevens, Esq.
/ Published
Tuesday, 24 December 2019 11:15
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.
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Appeals Court Sets Limit on Wetlands Enforcement and Cautions on Imposing Fines
Written by Nathaniel Stevens, Esq.
/ Published
Thursday, 15 June 2017 14:11
A conservation commission may want to enforce the Wetlands Protection Act (hereinafter, the “Act”) and its wetland bylaw or ordinance (hereinafter, “bylaw”) against a project that was built a while ago without commission approval. The impetus might be a tip from a resident or new observation by a commissioner or agent. A recent decision of the Massachusetts Appeals Court provides important guidance and useful reminders.
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Understanding Home Rule Wetland Bylaws and Conservation Commission Decision Making
Written by Nathaniel Stevens, Esq.
/ Published
Thursday, 16 February 2017 11:36
The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), reinforced the well-established principle that a local conservation commission can have regulatory authority under a wetlands bylaw or ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).
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Appeals Court Reaffirms Conservation Commissions’ Dual Authority
Written by Nathaniel Stevens, Esq.
/ Published
Monday, 26 January 2015 13:02
The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), recently rejected a challenge to the well-established principle that a conservation commission can have regulatory authority under a local wetlands bylaw or ordinance that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”). This is so as long as a commission relies on a provision of its local wetlands law that is more stringent than the Act and complies with the timeframes set forth in the Act. Otherwise a commission risks having its decisions…
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Without Clearly Defined Performance Standards, A Local Wetlands Ordinance or Bylaw May Be Worthless
Written by Luke H. Legere, Esq.
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Monday, 09 December 2013 16:14
The Massachusetts Appeals Court’s decision in Tremont Redevelopment Corporation v. Conservation Commission of Westwood, 73 Mass. App. Ct. 1127 (2009), provides guidance for municipalities concerned about the limits of Home Rule for local wetland protection ordinances or bylaws. The Court applied the Home Rule Doctrine in light of several prior decisions1 and ruled that the Westwood Conservation Commission’s disapproval of a project under its Wetlands Protection Bylaw was invalid.2
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Supreme Judicial Court Rejects Boilerplate Waiver of Wetland Protection Act's Deadline For Decision
Written by Luke H. Legere, Esq.
/ Published
Thursday, 09 August 2012 20:00
An open-ended waiver of the state Wetlands Protection Act's twenty-one (21) day deadline for issuing a decision after the close of a public hearing is invalid when required as part of a Notice of Intent application package.
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Pollard Case Rules Commission Must Have Specific Reasons to Reject Applicant’s Uncontradicted Evidence
Written by Nathaniel Stevens, Esq.
/ Published
Sunday, 11 January 2009 19:00
The state Appeals Court recently ruled that a Conservation Commission cannot deny work without explicit and objective reasons why the Commission is rejecting the applicant's uncontested evidence. In Pollard v. Conservation Commission of Norfolk, the Massachusetts Appeals Court (the "Appeals Court") said that the Commission, in disbelieving or rejecting uncontradicted evidence, cannot simply say that the applicants' evidence was "not credible" and that the applicants "failed to sustain their burden."
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Attorney Blog Categories
COVID-19 Guidance
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Calculate When Your Permits Expire If Issued Before or During the Covid Emergency: 462 Extra Days?
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What the Lifting of the COVID-19 State of Emergency in Massachusetts Will Mean for Boards and Commissions
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Legislature Revises Local and Regional Permitting Deadlines as COVID-19 Pandemic Continues
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MassDEP and EPA Guidance on Waste Site Cleanups and Compliance during COVID-19 Emergency: Some Flexibility but Important Deadlines and On-Site Obligations Still Apply
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