Back in September and February, we wrote about MassDEP's Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the "project shoreline" — the outer boundary of a development proposal. Triggered by proposed redevelopment of Lewis Wharf, the proposed interpretation essentially stated that if the piles comprising a pile field were no longer visible at "Extreme High Water", they could not be considered part of the pile field forming the project boundary. This draft interpretation raised a host of concerns, including whether it imposed a de facto obligation on pile field owners to keep their piles in tip top shape or risk losing their development rights. The interpretation also appeared to be imposing a regulatory burden without the proper notice-and-comment accompanying a regulatory revision. MassDEP received nearly 200 pages of comments on the proposed interpretation.
- Very few substantive changes were made to the policy, except to replace the reference to "Extreme High Water Mark" with "High Water Mark", a term that is already defined under the regulations. Okay, now property owners needn't worry that a King Tide alone will strip them of their development rights.
- MassDEP stuck to its original approach stating that an "existing pile field" does not include "any broken piles that are not visible at high water" or any piles "cut at or near the mudline"
So, are property owners with decaying pile fields up a creek without a paddle? Not necessarily.
- MassDEP emphasized throughout that "its application of its interpretation is limited specifically to the Lewis Wharf project", that the application of the regulations "will be dependent on the facts in any situation", and that the interpretation is not "intended to serve as a new regulation or an amendment to an existing regulation."
- MassDEP also stated that this interpretation "will not affect the ability of current license holders to remedy violations or make repairs and modifications arising from decay, damage, changes in sea level or any other occurrence with authorization from the Department, pursuant to 310 CMR 9.22, 9.24 and 9.26"
What is a pile field owner to do? It may seem a bit like economic waste, but exercise your rights under existing regulations to repair and replace those decaying piles first, then apply to MassDEP for a Chapter 91 License with your new-and-improved, higher-than-high-tide pile field in place.
It remains to be seen whether this approach is available to Lewis Wharf, but the door appears to be slightly open.
(See attached for a redline showing the changes between the draft and final interpretation.)
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