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. 

Live Webcast
Date: February 7, 2023
Time: 9:30 AM

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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.

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. 

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. 

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 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.

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”).

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 under both state and local laws superseded by MassDEP in an appeal under the Act.

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  

We successfully defended a Cape Cod coastal homeowner from challenges by his neighbor to his state and local wetlands permits for home expansion on his waterfront lot, in the Town of Falmouth, which has a particularly comprehensive local Home Rule wetlands bylaw and Conservation Commission regulations, on a lot surrounded by wetland Resource Areas.

We successfully defended these permits through an adjudicatory hearing at DEP under the Wetlands Protection Act and in Superior Court and the Appeals Court under the bylaw, which upheld the Town.