MassDEP Proposes Regulatory Changes to Streamline Wetlands Appeals

Beveridge & Diamond, P.C., July 2007

Newly proposed amendments to the Massachusetts Department of Environmental Protection (MassDEP) regulations governing wetland appeals would attempt to speed up resolution of wetland appeals by reducing the types of individuals who can appeal and altering the timeline for appeal resolution.  MassDEP is accepting public comments on the proposed regulations until August 13, 2007.

Among the most significant changes to the Wetlands Protection Act Regulations (310 CMR 10.00) and MassDEP Adjudicatory Hearing Regulations (310 CMR 1.00) is a limit on who may initiate an appeal of a reviewable MassDEP decision, including a Superseding Order of Conditions, Superseding Determination of Applicability or Superseding Order of Resource Area Delineation.  Currently any abutter having previously participated in the permit proceedings may appeal.  The proposed regulations add an additional requirement that appellants demonstrate that they are aggrieved by the decision.  The proposed regulations also include for the first time Conservation Commissions among those parties, including applicants and landowners, who may file an appeal.

The proposed regulations also alter the timeline for the presentation of evidence and deadline for resolution of appeals.  The Presiding Officer will issue a scheduling order upon receipt of an appeal that will schedule prescreening of the case within thirty days and a hearing within 120 days.  Within this timeframe, the petitioner and then responding parties must file their pre-filed direct and rebuttal testimony.  The proposed regulations also provide that the applicant must provide information about the project and allow a site visit early in the process.

The Presiding Officer will hold an evidentiary hearing at MassDEP and retain the option of transferring cases to the Division of Administrative Law Appeals if such a transfer is beneficial to the timely resolution of a case.  The proposed regulations establish a six-month deadline for the issuance of final decisions in most appeals.  That deadline is extended to seven months if an appeal is deemed major or complex.

To view a draft of the proposed regulations, please click here.

For further information, please contact Brian Levey at blevey@bdlaw.com or Marc Goldstein at mgoldstein@bdlaw.com.