On waterfront, no time to waste
FOR 17 YEARS, Massachusetts has had a neatly balanced approach in place to protect the public's right of access to filled-in land close to the sea and rivers. The Supreme Judicial Court upset that balance in February, when it ruled that the Legislature had to explicitly determine state policy on this issue, and could not leave it to the Department of Environmental Protection as in the past. The House acted last week to codify the rules that were in place before the decision. With two major adjustments from the Senate, the new law should serve the public well.
State environmental regulators concluded in 1990 that developments on tidelands were exempt from review if they were more than 250 feet from the water and were separated from the water by a road. But the court said only the Legislature could set that policy or cede that power to the regulators.
State tideland regulation need not cover all the land that has been filled over the centuries, especially in Boston and Cambridge, where the coastline bears little resemblance to that found by the early English settlers. If the Legislature doesn't reinstate the old policy or allow regulators to do so, any new development in the Back Bay, for instance, would have to go through a tideland environmental review. That would waste regulators' time and delay important developments.
The House bill would restore the DEP's power over tideland development and would grandfather projects that were approved during the last 17 years. But this bill has a troubling new provision, which would create an Office of Tidelands and Great Ponds outside the department. The office would make an inventory of all tideland parcels and offer advice on whether developers provided enough public benefits. The Department of Environmental Protection, however, would have the final say. Even so, DEP has done a fine job over the years, and the new office is unnecessary to protect the public interest. The Senate ought to trim it from the bill.
The House bill also would create unnecessary confusion by changing the definition of what is covered by tidelands regulation. Projects 250 feet from the water would be exempt from DEP scrutiny as long as they were separated from the water by a road, but not by "an elevated public way, bridge, or overpass." A bridge or an overpass performs the same function as a regular highway: to provide public access to the tideland. The Senate should eliminate this provision, too.
The Supreme Judicial Court gave the Legislature until September to clarify the law before its ruling takes effect. Lawmakers will begin a summer recess later this week. The Senate needs to act quickly to improve this bill and gain concurrence with the House. Coastal development requires a straightforward regulatory framework that protects the interests of developers and the public.
