In a recent decision in Armstrong v. Secretary of Energy and Environmental Affairs (July 12, 2022), the Massachusetts Supreme Judicial Court (SJC) struck down a key part of the state’s Chapter 91 waterways regulations relating to municipal harbor plans. Municipal harbor plans (MHP) have been a part of the waterways program for more than 30 years and have been used to substitute for and amplify strict regulatory standards that would otherwise apply to projects in waterways and tidelands. Absent a regulatory or legislative fix, MHPs can no longer be used to override regulatory standards.

The waterways program established under Mass. Gen. Laws chapter 91 governs the use of tidelands, including both present and former submerged lands and tidal flats. Chapter 91 authorizes the Department of Environmental Protection (DEP) to license structures, uses, and fill in tidelands. Because much of the land along the Massachusetts coast has been created by filling, many waterfront projects require a license from DEP. To guide the licensing process, DEP’s regulations establish dimensional and density standards for non-water dependent uses, including requirements governing height, setback from the water, and open space. These standards limit the size of projects that can be built in tidelands. For example, a new building for non-water dependent use located on a pier or within 100 feet landward of the high watermark ordinarily may not exceed 55 feet in height. However, municipal harbor plans can provide flexibility to modify the standards in DEP’s regulations.

Municipal harbor plans are voluntary plans that individual cities and towns may create to reflect specific conditions and objectives for their local harbors. Such plans recognize that requirements appropriate for Cape Cod or a suburban town may not be suitable in an urban area. The Chapter 91 regulations require DEP to waive its strict dimensional standards in favor of those included in a municipal harbor plan. Thus, if a municipal harbor plan that contains its own dimensional criteria is in effect, DEP must use them in place of the usual Chapter 91 standards. Before they go into effect, municipal harbor plans must be approved by the Secretary of the Executive Office of Energy and Environmental Affairs. DEP’s role with MHPs is limited to making recommendations. As a result, standards approved by the Secretary supersede DEP’s standards.

The Armstrong case concerned the Municipal Harbor Plan for Downtown Boston. The plan includes several changes to the DEP standards and would have allowed construction of two towers with heights, respectively, of 600 and 350 feet. The plaintiffs challenged DEP’s Chapter 91 regulations insofar as they allowed the Secretary to modify DEP standards through an MHP. The trial court agreed with plaintiffs and issued a declaratory judgment that the challenged regulations were invalid.

On appeal, the SJC affirmed. The Court’s analysis is straightforward. To begin, it noted that the Commonwealth holds tidelands in trust for the public (known as the “public trust doctrine”). The Legislature administers the public trust doctrine on behalf of the citizens of the Commonwealth and may delegate its authority as it sees fit. Under chapter 91, the Legislature delegated to DEP, not the Secretary, authority to administer public trust rights, including the power to issue licenses for uses and structures in tidelands. DEP may not delegate its authority further. Therefore, to the extent the waterways regulations purport to require DEP to waive its standards and defer to specifications in an MHP, they are an unlawful delegation of DEP's decision-making authority to the Secretary. While DEP may consider recommendations from the Secretary in an MHP (to the extent they do not exceed DEP standards), it cannot be bound by them, and an MHP cannot supersede DEP’s requirements.

Although Armstrong involved the Downtown Municipal Harbor Plan, the decision’s impact extends to DEP licensing decisions for projects in any municipal harbor plan area. Accordingly, projects that do not yet have a license will not be able to rely on substitute provisions in an MHP to avoid DEP’s dimensional standards. Projects currently in the regulatory pipeline that are located in MHPs will be stalled until there is a regulatory or legislative change.

Existing licenses do not appear to be at immediate risk. The SJC observed in a footnote that licenses previously issued in municipal harbor plan areas are protected because the time to challenge those licensing decisions has passed. Administrative challenges within DEP must be brought within 21 days of the agency’s determination, and requests for judicial review of any final decision by DEP must be brought within 30 days after receipt of notice of the decision. Nevertheless, license amendments and renewals will be stymied since they will no longer benefit from the substitute standards in the respective MHPs.

DEP can rescue municipal harbor plans by amending its regulations. In May 2021, after the trial court decision in Armstrong, DEP started to do just that. The agency proposed regulatory changes that would give its approval for each existing MHP. It held four public hearings and received numerous written comments but held off finalizing the amendments until the SJC decided the appeal. By completing the process, DEP can remove concerns over existing licenses. Whether the agency will promptly restart that regulatory amendment process remains to be seen. Moreover, a regulatory fix also needs a way for DEP to approve future MHPs for use in chapter 91 licensing. So far DEP has not advanced such a proposal. It may be reluctant to take on additional administrative burdens that responsibility for approval might entail. In the meantime, municipal harbor plans will be unavailable to ease chapter 91 standards for waterfront projects.