United States: MassDEP: The Rising Tide May Steal Your Development Rights

Last Updated: September 30 2016
Article by Kathleen M. Brill

Does a pile field exist if it's covered at high tide?

MassDEP seems to think not.

Through the Commonwealth's Chapter 91 program, MassDEP regulates what can be built over tidelands. In last week's Environmental Monitor, MassDEP announced a " Proposed Interpretation" that would prescribe the way a proponent seeking a Chapter 91 license to authorize development should define a "Project Shoreline" in the context of a historic pile field. Under the regulations, the Project Shoreline essentially defines the outer boundaries of certain types of allowed development, with restrictions on what can be built within specific distances of that boundary.

According to MassDEP's new interpretation, if a historic pile field is to form the basis for a Project Shoreline, the historic piles must "physically be standing in place, and must still possess some capability to perform [their] originally intended function and use." Stating that the function of such piles must necessarily be to "support structures and uses above the highest water elevation during the full tidal cycle", MassDEP concludes that the structures "must remain above the highest predicted tidewater elevation" (MassDEP calls this the "Extreme High Water Mark"). That is, an "existing pile field" would not include "any broken piles that are not visible at high water".

So, hypothetically (or not so hypothetically in the case of the proponents of the Lewis Wharf hotel project), you have an old, decaying pile field that is properly licensed under the state's Chapter 91 program. You have been biding your time, waiting for the right market conditions to redevelop the site. In the mean time, the piles exposed to the air begin to rot, and sea levels rise. Before long, your pile field is not entirely above water at "extreme" high tides. According to MassDEP, your pile field, such as it was, no longer "exists."

This new "interpretation" raises a number of questions:

  • Is this truly an "interpretation" or is this really a new regulation, masquerading as an interpretation, and without the protections of notice and comment rulemaking? See prior rants by Seth Jaffe in this space ( here and here) concerning rulemaking by issuing interpretive guidance documents.
  • Are owners of pile fields being deprived of their development rights without due process?
  • How do you define the "extreme high water mark" and will that creep ever upwards over time?
  • Is there now a de facto obligation to maintain your piles in good condition (and keep adding inches to them to combat sea level rise) if you ever want to develop in the future?

MassDEP has opened a 30 day public comment period on the interpretation, closing October 21, 2016.

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