Attention Developers and Coastal Owners – Regulatory Changes on the Horizon!

Real Estate

Posted in on September 25, 2024

The Massachusetts Department of Environmental Protection (MassDEP) is proposing new regulations that will affect stormwater calculations and construction in coastal areas. The updated stormwater regulations in Massachusetts include a new stormwater handbook for 2024 and beyond. The updated regulations are anticipated to have significant impacts on redevelopment project standards, new development stormwater calculations, and rules for Massachusetts coastal construction. For example, the proposed regulations prohibit work in Velocity Zones except in very specific, limited circumstances.

When will the proposed regulations become effective?

There are no scheduled dates for the regulations and handbook to be enacted, but MassDEP notified the public in August 2024 that the agency is continuing to consider the public comments and plans to promulgate Final Regulations in 2024. MassDEP’s final regulations are enacted on the date they are published in the Mass Register. The published proposed regulations may be different than the final version.

Under the proposed regulations, the stormwater regulations have a 6-month window after they are enacted, so any Notice of Intent filed during the 6 months following the date of enactment are governed by the now-current version of the regulations. Any Notice of Intent filed after that 6 month-period expires is subject to the updated version of the regulations. There has been discussion about how to handle amended Notices of Intent or Orders of Conditions, and it is possible that any amendments proposed beyond that 6-month period, including extensions, could cause the project to be subject to the updated regulations.

There is expected to be a 6-month window after enactment, during which applicants seeking wetland and stormwater permitting will still be governed by the existing regulations for most of the application, but certain components of the proposed regulations may be effective immediately.

The new construction restrictions in Massachusetts coastal zones will apply to all wetland projects filed on or after the date when the regulations are enacted, except for certain projects already in the design phase. For example, some exceptions are expected for projects that have already received certain MEPA approvals or building permits.

What is changing?

A few of the most impactful proposed changes are listed below; this is not a full list.

TSS/TP Removal. For stormwater management, all new projects will be required to meet 90% Total Suspended Solids (TSS) removal and 60% Total Phosphorus (TP) removal under the proposed regulations, and redevelopment minimums will no longer be reviewed under the ‘maximum extent practicable’ standard. Additionally, a reviewing agency will no longer consider economic impacts when determining the maximum extent practicable standard.

Discharge Calculations. Peak discharge calculations are expected to change to the NOAA Plus peak discharge calculation, which will take into consideration current extreme precipitation events as opposed to the TP40 basis that is currently used.

Perennial vs. Intermittent Streams. MassDEP has also proposed changes to how perennial streams are defined, by reference to 2019 data, which will cause more streams to be considered perennial.

Coastal Zone. The proposed regulations will have major impacts on construction in coastal areas. The changes would prohibit construction in land identified as a “Velocity Zone” and would restrict construction in “A Zone” areas, with differences between Major Wave Heights (MoWA) and Minor Wave Heights (MiWA).

NO structures will be allowed in the Velocity Zone. There are elevation requirements in MoWA and MiWA zones, with higher elevation requirements in MoWA.

 

Planning Ahead. If you own or manage coastal properties, you should review the new regulations with counsel and your engineers to determine whether it is possible or appropriate to file for wetland permitting as soon as possible. The existing and proposed stormwater and coastal regulations apply to many types of projects except for limited smaller residential developments or single-family homes, and you should review the timeframes and regulations with counsel and your engineers to determine how these updates will affect your properties and what, if anything, you should do now.

For development questions including wetland impacts, stormwater standards, and coastal construction, please contact Kim Kroha or Gene Guimond, land use real estate attorneys at Baker, Braverman & Barbadoro, PC.

– Kim Kroha.