The PowerPoint surveys developments during 2019-2020 such as important appellate and trial court decisions, new federal and state legislation, MassDEP adjudicatory decisions, Home Rule bylaws on climate change, Covid-19 Chapter 201 of the Acts of 2020, and Trump Administration executive and regulatory rollbacks now slated to be reversed (several already) by the Biden Administration.

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About half of the 351 municipalities in the Commonwealth currently have their own wetlands protection bylaw or ordinance (collectively, “bylaw”), which is administered by the city’s or town’s conservation commission in conjunction with the state Wetlands Protection Act (the “WPA”).

Some of these communities already have provisions that address climate change. Others are contemplating amending their existing bylaws and regulations to do so. Still others, like the City of Boston, are considering adopting for the first time a local wetland permitting program.

Wetland resource areas, already regulated to protect their ability to mitigate flooding and storm damage as well as to protect surface and groundwater quality, are naturally poised to help mitigate the similar effects of climate change on a community. To preserve these functions, municipalities are placing a greater emphasis on regulating work in or near wetland resource areas, such as marshes, vegetated wetlands, floodplains, beaches, banks, dunes, rivers, streams, lakes, and ponds.

A municipality can adopt a wetland bylaw under its Home Rule authority as long as the provisions are more stringent than the WPA. Being more stringent might include protecting additional interests, or functions, beyond the eight protected by the WPA, such as protection of wildlife, natural scenic beauty, or recreation. It also might mean regulating a greater geographic area than the Act, such as isolated (not just bordering) vegetated wetlands, areas within 100 feet of water bodies, or vernal pools (even if outside a vegetated wetland). It also might mean having stricter requirements (or “performance standards”) such as a mitigation ratio of greater than the 1:1 generally required in the WPA and MassDEP’s implementing Wetland Regulations (310 CMR 10.00).

These are but a few of the myriad of ways a wetland bylaw and the regulations promulgated thereunder can be more stringent than the WPA and its regulations.

With sea level rise being one of the most commonly discussed impacts of climate change, it is not surprising that several coastal towns have provisions in their wetlands bylaws to consider this during project review.

For instance, Duxbury requires the design and construction of projects in the FEMA- designated “A-zone” portion of the 100-year floodplain to take into account sea level rise at a rate of 2.8 feet per 100 years. Hingham has a similar requirement, but also applies it to projects proposed in the velocity zone (“V-zone”). Hingham specifies that a rate of 1 foot per 100 years “or other credible evidence” such as from the Intergovernmental Panel on Climate Change be used. Falmouth has one rate (“at least” 1 foot per 100 years) for work in AE-zones and a higher rate (“at least” 2 feet per 100 years) for work in the VE-zone.

As sea levels rise, coastal wetland resource areas are predicted to shift landward. Scituate requires landward migration of resource areas in response to sea level rise to be incorporated into the design and construction of structures proposed in the coastal floodplain. The lowest floor of a structure in a FEMA-mapped AE-zone must be at least 1 foot above the base elevation, and the lowest horizontal structural element must be at least 2 feet above the base flood elevation – unless a higher elevation is determined by the Commission. Falmouth says that any activity within the 10-year floodplain cannot have an adverse effect by impeding the landward migration of other resource areas within this sub-area of the floodplain.

Recognizing that FEMA’s 100-year floodplain mapping can be inaccurate or outdated, many coastal communities allow the coastal floodplain, usually called Land Subject to Coastal Storm Flowage (“LSCSF”), to be defined by the FEMA maps, surge of record, or flood of record, whichever is greater. Similarly, recognizing that coastal bank function as a barrier to coastal storm flooding, some communities define the top of coastal bank at a higher point than MassDEP would under the WPA.

Inland communities are also using their wetland permitting programs to build climate change resiliency. The Arlington Conservation Commission recently added to its wetland regulations a new “Climate Change Resilience” section which requires an applicant, “to the extent practicable and applicable as determined solely by the Commission, integrate considerations of adaptation planning into their project to promote climate change resilience so as to protect and promote resource area values into the future.”

An applicant must address in a narrative: 1. Design considerations to limit storm and flood damage from extreme weather events; 2. Storm water surface runoff mitigation and reduction of impervious surfaces; 3. Vegetation planting plans to improve climate change resiliency; and 4. Protection of proposed structures to minimize damage from potential climate change impacts. With the introduction of new terms, the Commission added the definitions to its regulations, such as “adaptation”, “extreme weather event”, “impacts of climate change”, and “resilience.”

Many eyes are now on the City of Boston as it considers enacting its first wetland protection ordinance. Entitled, “Ordinance Protecting Local Wetlands and Promoting Climate Change Adaptation in the City of Boston”, the proposed draft explicitly and comprehensively integrates climate change resiliency measures into a local wetland permitting program. The current draft draws on approaches and definitions of other communities and expands on them. For instance, LSCSF is defined not as the more common FEMA 100-year floodplain, but the FEMA 500-year floodplain. “Special Transition Areas” landward of salt marsh, barrier beaches and coastal dunes are created to allow transition of those areas landward, so must be kept in a natural state as much as possible. Stormwater calculations must be based on “best available measures of precipitation” frequency. Also, the Conservation Commission is directed to consider eight factors when considering a project’s adaptation to potential climate change impacts.

In conclusion, Massachusetts cities and towns are not waiting for the state or federal governments to begin enacting laws to help build climate change resilience in their communities, but are turning to their own wetland regulations.

That is one of several important rulings in a recent Massachusetts Supreme Judicial Court ("SJC") case known as Garrity v. Conservation Commission of Hingham, Mass. (2012).

The SJC first ruled that an applicant may waive the requirement that a conservation commission issue an order of conditions within twenty-one days after closing a public hearing on a notice of intent. However, the Court clarified that "any waiver must be voluntary in fact, its duration must be defined and reasonable in length, and notice of the waiver's duration must be a matter of public record, available to all interested persons."

The relevant facts are as follows. The plaintiff, Michael Garrity, filed a notice of intent ("NOI") under the Act and Hingham's non-zoning wetlands bylaw proposing construction of a pile-supported pier at his oceanfront property. The pier would extend from a land-based platform to a pile-held floating dock approximately 175 feet from the mean high water line.

The Commission's guidelines for filings included a checklist for a complete NOI package, which stated "THE HINGHAM CONSERVATION COMMISSION WILL NOT ACCEPT INCOMPLETE FILINGS. You must check off all items applicable to your project, sign & return to [the Commission] with the completed [NOI]." The checklist included a waiver form entitled "Hingham Conservation Commission Waiver of 21–Day Deadline" and the statement, "I have read and signed the [Commission's] Waiver of 21–Day Deadline." Garrity's NOI package contained a completed checklist and a completed waiver form.

The Hingham Conservation Commission (the "Commission") received Garrity's NOI on March 9, 2009, and scheduled a public hearing for March 23. Garrity requested a continuance of the hearing to April 6, to allow the Commission's peer-review consultant to review the NOI. The public hearing was held on April 6, and the Commission closed the public hearing that same night.

The Commission met again twenty-one days later, on April 27, and voted to deny Garrity's proposal under the town bylaw. An Order of Conditions was issued the following day, on April 28, twenty-two days after the public hearing closed.

Garrity appealed to MassDEP. MassDEP issued a Superseding Order of Conditions (the "SOC") allowing Garrity's project, based on the Commission's failure to act within twenty-one days of the close of the public hearing, as required by the Act.

Before MassDEP issued the SOC, the Commission issued an Enforcement Order to Garrity. The Enforcement Order was based solely on observations made by Commission members and staff. No formal hearing was held, and Garrity presented no evidence; the Enforcement Order was issued by the Commission's agent on June 22 and ratified by the Commission on June 29. It alleged that Garrity violated the Act by installing a stairway, deck, granite steps, and stepping stones within jurisidictional Resource Areas, without an order of conditions.

Garrity appealed the Order of Conditions and Enforcement Order to Superior Court. There, the Commission argued that Garrity had waived the twenty-one day deadline for issuance of a decision. The Superior Court judge determined that Garrity's waiver of the twenty-one day deadline was ineffective, and the SOC controlled. The judge found that the record contained insufficient evidence to support the Enforcement Order, and reversed it. The Commission appealed.

The SJC ruled that the Commission's checklist "would reasonably be understood by an applicant to require submission of a signed waiver form as part of the application." The fact that Garrity knew that other checklist items did not apply to his project was irrelevant. Taken together, the waiver form and checklist did not demonstrate a clear waiver of Garrity's rights.

Thus, the SJC rejected the argument that Garrity voluntarily submitted the form, ruling that the Commission failed to meet its burden of proving that the deadline had been waived. The Order of Conditions was void, and the SOC controlled.

Turning to the Enforcement Order, the SJC reversed the trial judge's decision. The SJC clarified that the proper standard of review for a certiorari review of an administrative, discretionary decision not made in an adjudicatory proceeding is the "arbitrary and capricious" standard. The trial judge had incorrectly applied the "substantial evidence" standard. A critical factor was that the "enforcement order [was] not the product of an adjudicatory proceeding involving the presentation of evidence. Rather, the order constitutes discretionary action by the commission pursuant to its undisputed authority to enforce the act within the town." Therefore, it was not for the Court "to determine whether the record contains substantial evidence to support the commission's action but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously." Garrity had failed to sustain his burden of establishing that the Commission acted arbitrarily and capriciously.

This case provides two important lessons for conservation commissions. First, an applicant may waive the requirement that an order of conditions issue within twenty-one days after closing a public hearing on a notice of intent, so long as the waiver is voluntary in fact, of a defined and reasonable length, and notice of the waiver's duration is part of public record. Second, the standard of review governing an appeal of an enforcement order will be directly tied to the proceedings leading to that order. If the order is issued following a meeting or public hearing where evidence is taken, the court will look at the record to determine whether the order is supported by substantial evidence. Otherwise, the court will consider whether the commission exercised its discretion arbitrarily and capriciously.