From a land use dispute over proposed development of a high rise building on the Harbor Garage parcel near the New England Aquarium and Harbor Towers condominium, this matter grew into a full-blown litigation on the Public Trust Doctrine, the Waterways Act (M.G.L. c. 91), and the legality of Massachusetts Department of Environmental Protection (MassDEP) regulations creating and approving Municipal Harbor Plans (MHPs). 

The decision is of intense interest to landowners, developers, managers, lenders, investors, real estate attorneys, and their clients in the Boston Downtown Waterfront MHP, which includes 42.1 acres and 26 parcels along the waterfront from Long Wharf to Seaport Boulevard. This area includes the Aquarium, Long Wharf, and Rowe’s Wharf. 

MassDEP plans curative amendments to its Waterways Regulations regarding the fundamental MHP scheme. The case did not challenge the legality of the Boston MHP itself (only the process), the legality of any Chapter 91 license (not applied for yet), or the legality of the other 16 MHPs approved over the decades. 

Specifically, the SJC ruled that MassDEP exceeded its authority by promulgating provisions in its Chapter 91 Regulations, 310 CMR Section 9.00 et seq, that require MassDEP, when licensing certain projects subject to a MHP approved by the Secretary, to apply standards specific to that particular harbor area that have been approved by the Secretary. This delegation was ruled ultra vires Chapter 91. 

The Waterways Act is implemented through the Waterways Regulations, which set forth the basic requirements and performance standards for uses and structures licensed on public and private tidelands. These range from engineering and dimensional specification to use and open space limitations. 

According to the SJC, an MHP in effect for a harbor typically allows a substitution of some but not all of the generic specifications with local-specific specifications “that deviated (sometimes substantially)” from those in the MassDEP regulations, assertedly tailored to that particular harbor area but differing nonetheless.  

The process is set forth in the MassDEP’s Municipal Harbor Plan Regulations, found within the Waterways Regulations. The Boston Downtown Waterfront MHP was approved in April 2018 after a five-year planning process. The crux of the case was its particular application (and not the generic standards) to two parcels, namely the Harbor Garage site and the Hook Wharf site. These are on filled tidelands within 100 feet of the Boston Harbor high water mark. 

The MHP for the Boston waterfront contemplated construction of at least a 600-foot-tall tower at the Harbor Garage site and a 305-foot-tall building at the Hook Wharf site plus 30 more feet to accommodate building mechanicals relocated to the roof or upper floors for resilience to current and future hazards. The SJC compared this with the MassDEP regulations which generally impose a 55-foot height restriction at the water’s edge with graduated increases inland. The MHP also varied the rules for reserving open space on the ground floor and the setbacks from the water. 

CLF and 13 private citizens filed suit in July 2018. At the same time residents of the Harbor Towers condominium filed suit. The Superior Court consolidated the cases and ruled on cross motions for summary judgment. That court reasoned that under our Public Trust doctrine, the Legislature expressly delegated to MassDEP the obligation to preserve the public trust and to protect the public’s interest. 

The Superior Court ruled, then, that the agency may not delegate or relinquish to the Secretary any of the oversight responsibilities that the Waterways Act entrusted to it. As the Act lacks an express authorization for MassDEP’s MHP approach, it is irreconcilable with its enabling act and the Waterways Act. 

A central flaw, in the view of the Court, is that the MHP contains what is regarded as “binding guidance” for the MassDEP to follow the positions of the Secretary.

Specifically, relying on the SJC’s decision in Moot v. Department of Environmental Protection, 448 Mass. 340 (2007), in which the Court struck down a MassDEP regulation exempting landlocked tidelands as improperly relinquishing licensing jurisdiction, the Superior Court saw an unlawful delegation of Chapter 91 licensing determinations to the Secretary through the Municipal Harbor Plan approval process. The MHP Boston Harbor provisions, it ruled, are ultra vires and invalid. 

Before the Appeals Court and then the SJC, a long roster of lawyers appeared for the several parties including amici curiae NAIOP, the Commercial Real Estate Development Association, and the Massachusetts Municipal Lawyers Association. 

The result is a legal treatise on the Public Trust Doctrine. The SJC decision begins with a condensation of the legal principles, legislative delegation, the MHP approval process, the “substitute specifications” of the Secretary, what MassDEP judgment they override, and the resulting invalidation of the Boston Waterfront MHP. 

The SJC saw its role to “consider the department’s authority to promulgate regulations effectively binding itself to license a proposed construction in the tidelands where the Secretary has approved, as part of an MHP, specifications that deviate from the department’s own specifications.” 

With this job in mind, the SJC discussed the nature and scope of review (“reconciling regulations with the Legislature’s intent”), the weight accorded an agency’s discretion (“deference, not abdication”), the Legislature’s history of delegation to MassDEP (rather narrow and strict), the constraints on licensing “nonwater dependent uses of tidelands”, the Secretary’s substitute specifications (which MassDEP “shall presume” comply with the Waterways Act’s “proper public purpose” test which mandates “greater benefit than detriment to the rights of the public in such lands”), and the small opportunity for rebuttal of that presumption (only on “ narrow grounds”). 

Essentially the SJC saw the MassDEP “bound to determine that the project meets the requirements…” of the MHP. Citing Moot, 448 Mass. at 353, the Court saw the MHP rules and process as relinquishing “all public rights that the Legislature has mandated be preserved through the licensing requirements….”

Against the Secretary’s protestations that a standard of reasonableness applies, the SJC rejoined, again citing Moot: “The public trust doctrine does not analyze reasonableness; rather, it requires express legislative delegation, as it addresses a special, unusually valuable form of public property. Moot, 448 Mass. at 347.”

The Court rejected MassDEP’s argument that it can make a nonbinding “recommendation” to the Secretary as part of the MHP process, because “it gets the legislative delegation of authority over licensing decisions under public trust principles backwards.” 

Likewise, the Court made short work of the agencies’ arguments that MassDEP’s physical issuance of each particular license, or an implied delegation of authority from the Legislature, or wording in the EOEEA enabling act, can save the MHP program.  The SJC was not persuaded. 

The SJC helpfully observes, “To be sure, the department is free to consider – but should not be bound to adopt -- the Secretary’s input when it makes licensing decisions….” The bottom line, to this author, is that “the department may not cede to the Secretary the decision whether nonwater-dependent uses of tidelands serve, inter alia, a proper public purpose….”

The SJC’s decision was unanimous and so stands as yet another strong rebuke of the MassDEP administration of the Chapter 91 program in recent years. Fortunately, in a footnote, the SJC allowed all prior MHPs to stand as-is, noting the window of time in which they could be legally challenged has expired. We feel this means those MHPs and all the Chapter 91 licenses that were issued pursuant to them are beyond legal attack by virtue of the statutes of limitations. 

The MassDEP meanwhile has set about revising its Waterways Regulations and may take steps to re-approve the MHPs in a legally-prescribed way. Last February, for instance, the agency published proposed amendments and took written comments. As a result, in September the agency published further revised rules which would apply to 16 MHPs (but not yet the Boston Harbor MHP). 

You may see the redline version of the proposed amendments to 310 CMR 9.00 here >>>

We await all that MassDEP wishes to do to conform its MHP regime to the SJC decision.

Stay tuned.