MEPA Office Issues Draft Interim Protocol on Climate Adaptation and Resiliency

The Massachusetts Executive Office of Energy and Environmental Affairs (EEA) has issued its draft Massachusetts Environmental Policy Act (MEPA) Interim Protocol on Climate Adaptation and Resiliency (the Interim Protocol), with implications for the MEPA review process, including a new requirement that all projects filing with the MEPA Office complete an addendum to the Environmental Notification Form (ENF) evaluating the project's climate risks and adaptation strategies.

Background

The Interim Protocol is designed to encourage development projects to utilize the best available climate projections for Massachusetts to consider risks and impacts associated with sea level rise, increased intensity of precipitation and increases in average temperature. The Interim Protocol was drafted in response to Gov. Charlie Baker's Executive Order 569, which directs EEA and the Executive Office of Public Safety to coordinate efforts to strengthen resilience planning in light of the expected increase in extreme weather events. The Interim Protocol builds on the recommendations of the Massachusetts Integrated State Hazard Mitigation and Climate Adaptation Plan (SHMCAP), the Commonwealth's risk assessment and reduction strategy, and includes the efforts of the Resilient Massachusetts Action Team (RMAT), the interagency steering committee responsible for implementing and overseeing the SHMCAP. An initial public comment period ended on March 10, 2021, and the finalized Interim Protocol will be published in the Environmental Monitor. Public comments are now available online, and include more than a dozen commenters representing municipalities, commercial real estate, utilities, consultants and environmental organizations.

Addendum on Climate Change Adaptation and Resiliency

With an effective date to be announced in the finalized Interim Protocol, all new projects filing an ENF with MEPA will be required to complete an Addendum on Climate Change Adaptation and Resiliency (the Addendum), which solicits information and disclosures to assist in evaluating climate risks and adaptation strategies. If a project implicates certain climate risk factors, the proponent will be required to provide an explanation of planned climate adaptation and resiliency strategies. The Addendum includes three sections, as described further below. If the forthcoming RMAT Climate Resilience Design Standards Tool is available at the time of the ENF filing, proponents may attach a copy of the project's Climate Risk Screening and Resilience Design Standards report available through this tool in lieu of completing Sections I and II.

Section I of the Addendum seeks information regarding sea level rise, increased precipitation and extreme heat. Questions include whether the project will result in a net increase in impervious area, whether the site has a history of flooding during extreme precipitation events, whether the project is located within the 100-year floodplain or the 500-year floodplain as depicted on the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Map(s) for the site, and the anticipated useful life of the project.

Section II evaluates the criticality of buildings, facilities and infrastructure as low, medium or high. This rating is intended to consider "the extent of the geographical area and populations affected by loss or inoperability of the project/asset." Factors to be considered include whether the project serves an Environmental Justice (EJ) or climate vulnerable community, the length of time the project can be inoperable without consequence, and the nature and severity of impacts resulting from the inoperability or loss of the project. With respect to natural resource components such as parks and open space, the Addendum asks the proponent to describe the project's benefits and impacts to ecosystem functions.

Section III of the Addendum asks whether the project includes climate change adaptation measures, whether the project is contributing to regional adaptation measures, and whether the proponent has considered alternative locations in light of possible climate change impacts. Finally, the Addendum asks whether the project is located on Land Subject to Coastal Storm Flowage (LSCSF) or Bordering Land Subject to Flooding (BLSF) as defined in the Massachusetts Wetlands Protection Act. The Addendum notes that general guidance on this analysis can be found in the Coastal Wetlands Manual issued by the Office of Coastal Zone Management (CZM) and Massachusetts Department of Environmental Protection (MassDEP).

Interim Protocol for Environmental Justice Outreach

In addition to including EJ considerations in Section II of the Addendum, MEPA has released a draft Interim Protocol for Environmental Justice Outreach (the EJ Interim Protocol), with an initial public comment period also concluding on March 10, 2021. The EJ Interim Protocol follows a revised Environmental Justice Policy issued by EEA in 2017, which required that projects triggering certain MEPA ENF thresholds would provide opportunities for "enhanced public participation" by surrounding EJ neighborhoods and that projects triggering certain Environmental Impact Report (EIR) thresholds would conduct an "enhanced analysis of impacts and mitigation."

On an effective date that remains to be determined, all new projects filing with the MEPA Office will be required to identify the location of the project relative to EJ populations on a mapping tool and attach to the ENF a printout of the project location shown on the mapping tool. If any portion of the project is located within an "EJ population" as defined in the 2017 Environmental Justice Policy, the proponent will be required to consult with the MEPA Office at least 10 days prior to filing to determine an appropriate EJ outreach strategy. Alternatively, a project proponent may conduct voluntary EJ outreach prior to filing and include a summary of the outreach conducted with the filing. As the EJ Interim Protocol is currently drafted, remediation projects will be exempt from this requirement.

It is expected that the EJ Interim Protocol will remain in place until amended to comply with statutory requirements or superseded by a formal MEPA EJ strategy. Chapter 8 of the Acts of 2021, the climate legislation recently signed by Gov. Baker, includes changes to the MEPA process to reflect EJ principles, including a requirement that EIRs for projects located near EJ populations must include an analysis of existing unfair or inequitable environmental burdens and public health consequences. The new law also heavily emphasizes ways to improve public participation, including translating key documents, providing translation services at meetings and requiring public meetings to be held near public transit, among other measures. It remains to be seen how the new statutory requirements will be reflected in the finalized EJ Interim Protocol.

Conclusion

EEA plans to eventually replace the Interim Protocol and Addendum with a formal Climate Change Adaptation and Resiliency Policy, which will be developed through a public stakeholder process led by the MEPA Office. EEA's anticipated timeline includes presentations on potential updates to greenhouse gas (GHG) and climate adaptation policies, with technical sessions as needed, through summer 2021, with a formal process and public hearings to follow in fall and winter 2021. Holland & Knight's real estate and environmental attorneys will be following these developments closely.

This alert is the second in a series covering Massachusetts initiatives targeting the Commonwealth's anticipated need for climate change adaptation, focusing on the potential implications for real estate development and permitting. For a broad overview of topics, see Holland & Knight's previous alert, "Massachusetts State and Local Climate Change Adaptation Initiatives: What Real Estate Professionals Should Know," April 6, 2021. Stay tuned for the next post in this series, which will delve into local zoning and wetlands initiatives, including Boston's proposed Coastal Flood Resilience Overlay District.

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.