United States: MEPA Office Issues Revised Protocols On Climate Change And Environmental Justice

Highlights

• After reviewing public comments, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) has issued its revised Massachusetts Environmental Policy Act (MEPA) Interim Protocol on Climate Change Adaptation and Resiliency (the Interim Protocol), as well as a revised Public Involvement Protocol for Environmental Justice Populations (the EJ Protocol).
• Public comment on the EJ Protocol remains open through July 30, 2021.
• This Holland & Knight alert is the fourth 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.

After reviewing and responding to initial public comments, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) has issued its revised draft Massachusetts Environmental Policy Act (MEPA) Interim Protocol on Climate Change Adaptation and Resiliency (the Interim Protocol), as well as a revised MEPA Public Involvement Protocol for Environmental Justice Populations (the EJ Protocol). Both the Interim Protocol and EJ Protocol (together, the Protocols) will impose new requirements as part of the MEPA review process, as described further below. The MEPA Office is continuing to accept comments on the revised EJ Protocol through July 30, 2021. A broad update on the MEPA Office's ongoing regulatory review effort, including its process to update the MEPA regulations at 301 CMR 11.00, is available online.

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 and storm surge, extreme precipitation and urban or riverine flooding, and extreme heat. 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.

The EJ Protocol incorporates the new public involvement requirements for MEPA projects set forth in Chapter 8 of the Acts of 2021: An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy (the Climate Roadmap Act), as well as the public involvement requirements under EEA's Environmental Justice Policy. A revised Environmental Justice Policy was issued by EEA in 2017, and a further revised Environmental Justice Policy (the EJ Policy) was released on June 24, 2021. The EJ Policy includes the new statutory definition of "Environmental Justice Population" in accordance with the Climate Roadmap Act and outlines the process by which neighborhoods may be included or excluded from this definition. The EJ Policy will remain in effect until formally amended after a public participation process.

The MEPA Office has also released Transition Rules for Public Involvement Requirements for Environmental Justice Populations (the Transition Rules), which will apply to all Environmental Notification Forms (ENFs) and Expanded Environmental Notification Forms (EENFs) filed between June 24, 2021, and the effective date of the EJ Protocol, expected to be Oct. 1, 2021.

The MEPA Office's response to initial public comments on the Protocols is available online. For further background on the Protocols, see Holland & Knight's previous alert, "MEPA Issues Draft Interim Protocol on Climate Adaptation and Resiliency," April 26, 2021.

Interim Protocol on Climate Change Adaptation and Resiliency

With an anticipated effective date of Oct. 1, 2021, all new projects filing an ENF or EENF with MEPA will be required to print the output report generated from the RMAT Climate Resilience Design Standards Tool (the RMAT Tool), now publicly available, and submit it as an attachment to the ENF or EENF.

Additionally, a new ENF/EENF section entitled "Climate Change Adaptation and Resiliency" will solicit information regarding adaptation strategies the project will employ to address climate risks. These revisions are included as Attachment A to the Interim Protocol and will be incorporated into the template to be made available on the MEPA website.

As proposed, this new section asks whether the project has taken measures to adapt to climate change for any of the climate parameters analyzed in the RMAT Tool, which include sea level rise and storm surge, extreme precipitation and extreme heat, with examples of such measures including flood barriers, increased stormwater infiltration, living shorelines, elevated infrastructure and increased tree canopy. Additionally, the section asks whether the project will contribute to regional adaptation measures and whether the project proponent has considered alternative locations in light of possible climate change impacts. Finally, the section 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).

Public Involvement Protocol for Environmental Justice Populations

The EJ Protocol corresponds with the EJ Policy and addresses the new public involvement processes for MEPA projects required by the Climate Roadmap Act. The EJ Protocol includes corresponding changes to the ENF, which will be incorporated into the template ENF to be made available on the MEPA website. The MEPA Office anticipates that its revised EJ Protocol will become effective as of Oct. 1, 2021, after which date any ENF or EENF filing that fails to meet the EJ Protocol's requirements will be considered incomplete and rejected.

On the effective date, all new projects filing an ENF or EENF with the MEPA Office will be required to identify the location of the project relative to EJ populations on a mapping tool and attach a printout of the project location to the submission. Additionally, the ENF or EENF must indicate whether the project is "reasonably likely" to negatively affect EJ populations within a 1-mile radius or, if affecting air quality, a 5-mile radius of the project site. The MEPA Office will presume that any project impacts will negatively affect EJ populations within these radii "absent compelling information to the contrary."

The EJ Protocol includes extensive new public involvement requirements prior to filing an ENF/EENF. If the project is identified as negatively affecting EJ populations within a 1-mile or 5-mile radius of the project site, as applicable, the project proponent must submit a Letter of Intent (LOI) to file an ENF/EENF with the MEPA Office at least 45 days prior to filing, including the basic details of the project and the anticipated filing date. The LOI must be translated into all relevant languages if any affected EJ population is identified as having limited English proficiency. Upon receipt, the MEPA Office will post the LOI and any translated versions on the MEPA website until the ENF/EENF is filed or the project is withdrawn. Additionally, the project proponent must prepare a written project summary, make it publicly available in all relevant languages, and submit the summary to the EEA Director of Environmental Justice and community-based organizations (CBOs) that advocate for EJ populations in the designated area.

After publishing the project summary, but by no later than two weeks prior to filing the ENF or EENF, the project proponent will be required to conduct an informational meeting to review the project proposal and answer questions. Identified CBOs, local elected officials, the EEA's EJ Director and other interested parties should be invited. The meeting must be offered once during business hours and, if requested, once during evening or weekend hours. The meeting(s) must be held at accessible locations near public transit to the greatest extent possible and facilitate remote attendance, with oral interpretation required with 48 hours' notice.

The ENF or EENF will be required to attach the map of the project location and answer questions regarding whether the project is reasonably likely to negatively affect EJ populations. The ENF or EENF will also be required to include an explanation of outreach activities, including meeting dates, attach the LOI and written project summary, and include the list of CBOs and individuals on the distribution list to receive ongoing updates. Finally, the ENF or EENF will be required to include a summary of the informational meeting and describe any project changes made to address concerns raised at the meeting.

The EJ Protocol also includes public involvement requirements for after the filing of the ENF or EENF. The project proponent is required to maintain a distribution list of CBOs who have requested to receive ongoing project updates and notify this group of the MEPA site visit, provide supplemental information and deliver any other relevant notices. If a project is required to file an Environmental Impact Report (EIR), the Secretary will consider the need for additional public involvement during the process.

Other MEPA filings – including Notices of Project Change, Project Commencement Notices, Environmental Status and Planning Reports, Environmental Data Reports or other filings where the initial ENF/EENF was submitted prior to the effective date of the EJ Protocol – will be required to identify the location of the project or project change relative to EJ populations in the same manner as with respect of ENF/EENF filings. They also must follow similar requirements to those outlined for ENF/EENFs, providing language interpretation and translation, if applicable.

Comments on the EJ Protocol can be sent to MEPA-regs@mass.gov by July 30, 2021.

Transition Rules for Public Involvement Requirements

The Transition Rules, effective as of June 24, 2021, are intended to implement the requirements of the Climate Roadmap Act during the period between when the law goes into effect and the effective date of the EJ Protocol.

During this time period, all ENFs and EENFs filed with the MEPA Office must use the online mapping tool and provide a narrative identifying EJ populations within 1 mile of the project site and describing whether the project is reasonably likely to negatively affect such populations. If the project is expected to impact air quality, then the ENF or EENF must identify EJ populations within 5 miles of the project and describe whether the project is reasonably likely to negatively affect such populations.

If the ENF or EENF indicates that the project is reasonably likely to negatively affect EJ populations, then the submission must describe any measures taken to promote public involvement by such populations prior to project filing, and should outline any additional steps the project proponent intends to take during MEPA review. At minimum, project proponents are encouraged to conduct pre-filing outreach to EJ populations within 1 mile of the project site and should provide language translation, as applicable.

Conclusion

The final Protocols and corresponding revisions to the ENF form will be published by EEA in the Environmental Monitor at least two weeks prior to the effective date. EEA plans to eventually replace the Interim Protocol with a formal Climate Change Adaptation and Resiliency Policy, which will be developed through a public stakeholder process led by the MEPA Office. With respect to the EJ Protocol, it addresses only the public involvement requirements of the Climate Roadmap Act, and the MEPA Office plans to address other requirements for the content of EIRs through separate regulations and guidance to be issued after a formal rulemaking process. Holland & Knight's real estate and environmental attorneys will be following these developments closely. For questions about a specific project or for assistance with drafting or submitting comments on the EJ Protocol, please contact the authors.

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