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February 2022

Massachusetts Wetland Protection Act Timelines

 In Oyster Creek the Supreme Judicial Court concluded that a Conservation Commission must issue its decision within 21 days of the close of hearing or lose its jurisdiction.  While the Wetlands Protection Act (“WPA”) sets the statewide minimum, allowing towns to set more stringent protection standards, the court distinguished these substantive provisions from timelines concluding that “. . . . the timing provisions in the act are obligatory, and a local community is not free to expand or ignore them.” Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich, 449 Mass. 859 (2007) Id. at 866  The applicant’s remedy where a Commission’s decision is delayed is to seek a superceding order from the Massachusetts Department of Environmental Protection "MassDEP". 

On January 26, 2022 the Appeals Court applied the same rationale to the timing of the hearing itself.  See Boston Clear Water Company, LLC v. Town of Lynnfield, Conservation Commission of Lynnfield, No. 21-P-166, January 26, 2022.   Boston Clear Water Company (“BCWC”) sought an Order of Conditions for structural repairs on its enclosed spring house located in a buffer zone of a bordering vegetated wetland.    BCWC filed its Notice of Intent on August 30, 2019 and the Commission published notice for the hearing to occur on September 17, 2019.  After the notice was published, however, the Commission determined it would not have a quorum until September 24, 2019 and requested that BCWC waive the 21 day hearing requirement.  The Commission then proceeded to notice the hearing for September 24, 2019.  

Meanwhile BCWC appealed to MassDEP, citing the Commission’s failure to hold the hearing within 21 days of the application.  The Commission continued and reopened the hearing several times but BCWC did not participate.  Ultimately the Commission issued a denial on February 18, 2020.  But on February 21, 2020 MassDEP issued a Superceding Order of Conditions approving the project under the WPA.

Upon review, the Appeals Court concluded that the WPA “timing provisions” as discussed in Oyster Creek, are plural and “obligatory” applying to the hearing as well as to the Commission’s decision. The Commission had argued that the hearing timeline should be treated differently than the decision deadline because short hearing delays would not prejudice the decision and applicants might otherwise plan their filings when a commission would not be able to meet the deadline.  While acknowledging that some of these arguments were compelling, the Appeals Court determined that it didn’t have that option where the statute clearly uses the plural.

What does this decision mean to the typical applicant?  Applicants already consider numerous issues when planning their projects, including when to file for permits.  This decision suggests that close attention should be paid to application timing in communities with more stringent wetland bylaws.  If a Commission is unable to meet the 21 day hearing deadline, the Applicant should make a timely appeal to MassDEP.  In such communities, a decision from MassDEP after a missed procedural deadline will preclude the Commission from enforcing its local requirements.  While the Commission could appeal that MassDEP decision, its burden is to show by preponderance of the evidence that the superseding order does not contribute to the protection of the interests of the WPA.  The more stringent local bylaw requirements would remain irrelevant. 

For more information or to learn more about wetlands permits and appeals in Massachusetts, feel free to contact the author.  To read the full text of the case, click here.

Environmental/Toxic Tort

Environmental/Toxic Tort