Massachusetts Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know
While much attention has been paid to the ambitious climate change mitigation requirements in "An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy," the comprehensive climate change legislation recently signed by Massachusetts Gov. Charlie Baker, there are a number of initiatives underway at the state and local level to target the Commonwealth's anticipated need for climate change adaptation.
This Holland & Knight alert provides a brief introductory overview highlighting some of these efforts. A series of alerts and blog posts to follow will analyze each of these initiatives in further detail, focusing on the potential implications for real estate development and permitting in Massachusetts.
Topics that the series will follow include:
MEPA Interim Protocol on Climate Adaptation and Resiliency
The Executive Office of Energy and Environmental Affairs (EEA) released a draft Massachusetts Environmental Policy Act (MEPA) Interim Protocol on Climate Adaptation and Resiliency (the Interim Protocol) in compliance with Gov. Baker's Executive Order 569. The Interim Protocol is designed to encourage development projects to utilize the best available climate science data and projections for Massachusetts to consider risks and impacts associated with sea level rise, increased intensity of precipitation and increases in average temperature. Once finalized, all new projects filing with MEPA will be required to complete an Addendum on Climate Change Adaptation and Resiliency, which solicits information and disclosures to assist in evaluating climate risks and adaptation strategies. An initial public comment period ended on March 10, 2021.
Local Zoning and Wetlands Initiatives
Municipalities are increasingly looking to local zoning and wetlands ordinances or bylaws to address the need for climate change adaptation. For example, in the city of Boston, the Boston Planning and Development Agency (BPDA) announced plans to implement a new Coastal Flood Resilience Overlay District (CFROD) with a new Article 25A to the Boston Zoning Code, with related updates to existing articles. In 2019, BPDA had developed and adopted Coastal Flood Risk Design Guidelines (the Guidelines) for new construction and building retrofits, which provide best practices for flood resistant design. Article 25A would formalize the implementation of the Guidelines for the review of projects within the proposed CFROD, establish sea level design flood elevation for new construction and retrofits, and establish new dimensional and use regulations. Projects subject to Article 25A would be required to undergo a Resilience Review process with BPDA.
Changes to the State Building Code and Development of a Stretch Energy Code
The Board of Building Regulation and Standards (BBRS) has a coastal subgroup working on revisions to the State Building Code to better account for increased flood risk, including storm surge. Additionally, Chapter 8 of the Acts of 2021 provides that the Department of Energy Resources (DOER) will adopt a municipal opt-in specialized stretch energy code within 18 months of the law's passage, with at least five public hearings to be held in the interim. The updated municipal opt-in stretch energy code will include net-zero building performance standards and will define a net-zero building.
Revisions to the MassDEP Wetlands Regulations and Stormwater Handbook
The Massachusetts Department of Environmental Protection (MassDEP) has convened a Stormwater Advisory Committee to draft revisions to the stormwater provisions of the Massachusetts Wetlands Regulations and the Massachusetts Stormwater Handbook, with the goal of enhancing storm control measures. It is anticipated that the method for calculating precipitation amounts will be changed to better serve the interests of the Wetlands Protection Act in a changing climate, including storm damage prevention, flood control, pollution prevention and the protection of groundwater supply. Similarly, the U.S. Environmental Protection Agency's (EPA) 2021 Multisector General Permit, recently finalized, requires operators to consider implementing enhanced stormwater control measures for facilities that could be impacted by major storm events.
MCP Climate Change Amendments
Relevant to brownfields development, changes to the Massachusetts Contingency Plan (MCP) are underway to include climate change resilience. The 2019 Draft MCP Amendments would require persons conducting cleanups to identify and assess foreseeable climate impacts that could affect the permanence of the cleanup and take measures to mitigate such impacts. A Permanent Solution would be required to take into account "reasonably foreseeable future changes in site conditions, including anticipated impacts associated with climate change." These MCP amendments are expected to be finalized in 2021.
Designated Port Area Resilience Pilot Project
The Massachusetts Office of Coastal Zone Management (CZM) has established 10 Designated Port Areas (DPAs) to promote and protect water-dependent industrial uses. These areas include Gloucester Inner Harbor, Salem Harbor, Lynn, Mystic River, Chelsea Creek, East Boston, South Boston, Weymouth Fore River, New Bedford-Fairhaven and Mount Hope Bay. The DPAs have the unique features needed to support water-dependent businesses such as commercial fishing, shipping and offshore wind energy facilities. CZM has initiated the DPA Resilience Pilot Project to identify water-dependent industrial uses in the Chelsea Creek and Gloucester Inner Harbor DPAs that are vulnerable to the impacts of climate change and develop resilience solutions to support the water-dependent industrial users in these areas, including design guidelines and best practices for continued operations.
Massachusetts-based Holland & Knight real estate and environmental attorneys will follow these initiatives as they evolve, as well as the ensuing implications for real estate development projects and permitting processes. Stay tuned for the next post in this series, which will cover the MEPA Draft Interim Protocols for Climate Adaptation and Resiliency in greater detail.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.