Massachusetts Local weather Change Adaptation Initiatives: What Actual Property Professionals Ought to Know | Holland & Knight LLP

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While the ambitious climate change mitigation requirements in “A Bill To Establish a Next Generation Roadmap for Massachusetts Climate Policy,” which has recently received extensive climate change legislation signed by Massachusetts governor Charlie Baker, are there a series of state and local initiatives to meet the Commonwealth’s anticipated needs for adaptation to climate change.

This Holland & Knight Warning provides a brief introduction to some of these endeavors. A series of alerts and blog posts to follow will analyze each of these initiatives in more detail, with an emphasis on the potential impact on property development and approval in Massachusetts.

Some of the themes that the series will follow include:

MEPA Interim Protocol on Climate Adaptation and Resilience

The Energy and Environment Executive Bureau (EEA) has published a draft of the Massachusetts Environmental Policy Act (MEPA) Interim Protocol on Climate Adaptation and Resilience (Interim Protocol) in accordance with Governor Baker’s Executive Order 569 development projects utilizing the best available climate science data and forecasts for Massachusetts to account for risks and impacts related to sea level rise, increased rainfall, and rise in average temperature. Upon completion, all new projects submitted to MEPA must complete a Climate Change Adaptation and Resilience Addendum, gathering information and disclosures to aid in climate risk assessment and adaptation strategies. A first public comment period ended on March 10, 2021.

Local zoning and wetland initiatives

Municipalities are increasingly seeking local zoning and wetland ordinances or statutes to address the need for adaptation to climate change. 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 of the Boston Zoning Code with updates to existing articles. In 2019, BPDA had developed and adopted Coastal Flood Risk Management Guidelines (the Guidelines) for new construction and building retrofits that provide best practices for flood resistance. Article 25A would formalize the implementation of the guidelines for the review of projects under the proposed CFROD, set the flood height for sea level for new builds and retrofits, and establish new measures and usage rules. Projects subject to Article 25A would have to go through 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 subgroup on the coast working on revisions to the State Building Code to better address the increased risk of flooding, including storm surges. In addition, Chapter 8 of the 2021 Acts provides for the Department of Energy Resources (DOER) to adopt a municipal opt-in stretch energy code within 18 months of the bill being passed, with at least five public hearings scheduled to take place in the meantime . The updated municipal opt-in stretch energy code includes performance standards for buildings with a net zero value and defines a building with a net zero value.

Revisions to the MassDEP Wetlands Regulations and the Stormwater Handbook

The Massachusetts Department of Environmental Protection (MassDEP) has convened a rainwater advisory committee to revise the rainwater regulations of the Massachusetts Wetlands Regulations and the Massachusetts Stormwater Handbook to improve storm management practices. The method of calculating rainfall is expected to change to better serve the interests of the Wetlands Protection Act in a changing climate, including storm damage prevention, flood control, pollution prevention and groundwater protection. Similarly, the US Environmental Protection Agency’s (EPA )’s recently completed Multisector General Permit 2021 requires operators to consider implementing improved rainwater control measures for facilities that could be affected by major storm events.

Changes in MCP climate change

Regarding brownfield development, changes are being made to the Massachusetts Contingency Plan (MCP) to include resilience to climate change. According to the draft MCP amendments for 2019, people performing cleanup operations would need to identify and assess foreseeable climate impacts that could affect the durability of the cleanup operations and take steps to mitigate those impacts. A permanent solution would be needed to take into account “reasonably foreseeable future changes in site conditions, including the expected effects of climate change”. These MCP changes are expected to be completed in 2021.

Designated Resilience pilot project for port areas

The Massachusetts Office of Coastal Zone Management (CZM) has set up 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. Data Protection Authorities have the unique capabilities needed to support water-dependent businesses such as commercial fishing, shipping and offshore wind turbines. CZM 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 effects of climate change and to develop resilience solutions to support water-dependent industrial users in these areas , including design guidelines and best practices for continued operation.