CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program

by Foley Hoag LLP - Environmental Law
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The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan. 

Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan.  The Massachusetts Ocean Management Plan was released on December 31, 2009.  CZM has now drafted its proposed Ocean Management Plan regulations, which would implement the Ocean Management Plan largely through MEPA and other existing permitting processes.  Key provisions of the regulations include the following:

  • Within the Ocean Management Planning Area, Ocean Management Planactivities automatically subject to review under the regulations would include renewable energy projects, sand and gravel extraction, cables and pipelines.  For other activities, the applicability of the regulations would depend on whether the activity exceeds ENF thresholds under MEPA.  Activities that are not required to develop an EIR under MEPA would be presumed to meet the standards contained in the regulations. 
  • The standards would establish requirements for renewable energy activities, as well as activities to be conducted within the management areas defined by the plan, which include the delineated Special, Sensitive or Unique (SSU) Resources areas and areas of Concentrated Water-Dependent Use.  
  • Importantly, to conduct activity within an SSU resource area, a proponent would have to overcome a presumption that the activity should not be permitted.  Proponents would have to provide evidence that might include revised resource mapping, a demonstration that no less environmentally damaging practicable alternative exists, minimization of impacts, and a public benefit analysis. 
  • All activities covered by the new regulations would be subject to an Ocean Development Mitigation Fee, under a yet-to-be-promulgated fee structure tied to the scope and scale of activities.   The fee would be included in any subject activity’s final MEPA certificate. 

At the same time, CZM is proposing revisions to its existing Coastal Zone Management Program regulations at 301 CMR 20 and 21.   As CZM’s notice regarding the new  regulations explains, the revisions are designed to accommodate recent updates to the federal regulations concerning Federal Consistency Review.  The revised regulations would put all CZM program requirements into one section and eliminate requirements that are now duplicative of the federal rules.

The comment period for both regulatory proposals closes Monday, April 22. 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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