Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 130 of the General Laws is hereby amended by striking out section 105, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 105. The commissioner of environmental quality engineering may from time to time, for the purpose of promoting the public safety, health and welfare, and protecting public and private property, wildlife and marine fisheries, adopt, amend, modify or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering, or polluting, coastal wetlands. In this section "coastal wetlands" shall mean any bank, marsh, swamp, meadow, flat or other low land subject to tidal action or coastal storm flowage and such contiguous land as said commissioner reasonably deems necessary to affect by any such order in carrying out the purposes of this section.

The commissioner of environmental quality engineering shall, before adopting, amending, modifying or repealing any such order, hold a public hearing thereon in the municipality in which the coastal wetlands to be affected are located, giving notice thereof to the state reclamation board, the department of public works and the department of environmental management and each assessed owner of such wetlands by mail at least twenty-one days prior thereto.

Upon the adoption of any such order or any order amending, modifying or repealing the same, the commissioner of environmental quality engineering shall cause a copy thereof, together with a plan of the lands affected and a list of the assessed owners of such lands, to be recorded in the proper registry of deeds or, if such lands are registered, in the registry district of the land court, and shall mail a copy of such order and plan to each assessed owner of such lands affected thereby. Such orders shall not be subject to the provisions of chapter one hundred and eighty-four. Any person who violates any such order shall be punished by a fine of not less than ten nor more than fifty dollars, or by imprisonment for not more than one month, or both.

The superior court shall have jurisdiction to restrain violations of such orders.

Any person having an ownership interest, any lessees holding a lease of twenty-five years length or more and any mortgagor having an interest in land affected by any such order, may, within ninety days after receiving notice thereof, petition the superior court to determine whether such order so restricts the use of his property as to deprive him of the practical uses thereof and is therefor an unreasonable exercise of the police power because the order constitutes the equivalent of taking without compensation. If the court finds the order to be an unreasonable exercise of the police power, as aforesaid, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such findings shall not affect any other land than that of the petitioner. The commissioner of environmental quality engineering shall cause a copy of such finding to be recorded forthwith in the proper registry of deeds or, if the land is registered, in the registry district of the land court. The method provided in this paragraph for the determination of the issue of whether any such order constitutes a taking without compensation shall be exclusive, and such issue shall not be determined in any other proceeding, nor shall any person have a right to petition for the assessment of damages under chapter seventy-nine by reason of the adoption of any such order.

The department of environmental management may, after a finding has been entered that such order shall not apply to certain land as provided in the preceding paragraph, take the fee or any lesser interest in such land in the name of the commonwealth by eminent domain under the provisions of chapter seventy-nine and hold the same for the purposes set forth in this section.

No action by the commissioner of environmental quality engineering or the department of environmental quality engineering under this section shall prohibit, restrict or impair the exercise or performance of the powers and duties conferred or imposed by law in the department of public works, the Massachusetts Water Resources Authority, the state reclamation board or any mosquito control or other project operating under or authorized by chapter two hundred and fifty-two.

No order adopted hereunder shall apply to any area under the control of the metropolitan district commission and the Massachusetts Water Resources Authority. No order adopted hereunder shall permit the construction in coastal wetlands of access driveways to unrestricted land except in a manner which allows the flow of the tide.

SECTION 2. Chapter 131 of the General Laws is hereby amended by striking out section 40A, as amended by section 45 of chapter 231 of the acts of 1985, and inserting in place thereof the following section:-

Section 40A. The commissioner of environmental quality engineering shall from time to time, for the purpose of preserving and promoting the public safety, private property, wildlife, fisheries, water resources, flood plain areas and agriculture, adopt, amend or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering or polluting inland wetlands. In this section, the term "inland wetlands" shall include the definition of "freshwater wetlands" as set forth in section forty, and it shall further include that portion of any bank which touches any inland waters of any freshwater wetland, and any freshwater wetland subject to flooding.

The commissioner of environmental quality engineering shall protect flood plain areas by establishing by order that, along any waterway or flood-prone area lines beyond which in the direction of the waterway or flood-prone area, no obstruction or encroachment shall be placed by any person, firm or corporation, public or private, unless authorized by the commissioner. Said commissioner, in establishing such encroachment lines shall base their location on the boundaries of the area which have been mapped, designated and recorded as inland wetlands in accordance with the provisions of this section.

The commissioner of environmental quality engineering shall, before adopting any such order under the preceding paragraphs, hold a public hearing thereon in the city or town or watershed region in which the inland wetlands or flood plains to be affected are located, giving notice thereof to the state reclamation board, the department of environmental management, the Massachusetts Water Resources Authority, the metropolitan district commission, the selectmen, conservation commissioners and assessors of each such city or town, and each assessed owner of such wetland or flood plains by certified mail at least twenty-one days prior thereto. For the purposes of this section, the person to whom the land was assessed in the last preceding annual tax levy shall be deemed to be the assessed owner thereof, and the notice shall be addressed in the same manner as the notice of such tax levy unless a different owner or a different address is known by said commissioner to be the correct one in which case the notice shall be so addressed. No order shall be adopted until it is approved by the selectmen or city council of the town or city in which said wetlands or flood plains are located; provided, however, that if the selectmen or the city council fail to approve or disapprove in writing, stating reasons for such disapproval, such proposed order within thirty days after receipt of a written request from said commissioner such order shall be deemed to have been approved; and provided, further, if such order is so disapproved said commissioner may, after expiration of six months from the date of such disapproval and after due consideration of the reasons for such disapproval, adopt such order or amended order.

Upon the adoption of any such order or any order amending or repealing the same, the commissioner of environmental quality engineering shall cause a copy thereof, together with a plan of the lands affected and a list of the assessed owners of such lands, to be recorded in the registry of deeds or the office of the assistant recorder for the district wherein the land lies, and shall send by certified mail a copy of such order and plan to each assessed owner of land affected and to the clerk and board of assessors of each city or town in which the land is located. Such order shall not be subject to the provisions of chapter one hundred and eighty-four. The superior court shall have jurisdiction to enforce, and remedy violations of such orders.

Any person having an ownership interest, any lessee holding a lease of twenty-five years length or more and any mortgagor having an interest in land affected by any such order, may within ninety days after receiving notice thereof, petition the superior court to determine whether such order so restricts the use of his property as to deprive him of the practical uses thereof and is therefore an unreasonable exercise of the police power because the order constitutes the equivalent of a taking without compensation. If the court finds the order to be an unreasonable exercise of the police power, as aforesaid, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such finding shall not affect any other land than that of the petitioner. The commissioner of environmental quality engineering shall cause a copy of such finding to be recorded forthwith in the proper registry of deeds or, if the land is registered, in the registry district of the land court. The method provided in this paragraph for the determination of the issue of whether any such order constitutes a taking without compensation shall be exclusive, and such issue shall not be determined in any other proceeding, nor shall any person have a right to petition for the assessment of damages under chapter seventy-nine by reason of the adoption of any such order.

The department of environmental management may, after a finding has been entered that such order shall not apply to certain land as provided in the preceding paragraph, take the fee or any lesser interest in such land in the name of the commonwealth by eminent domain under the provisions of chapter seventy-nine and hold the same for the purposes set forth in this section. No such order shall prohibit, restrict or regulate the use or improvement of land or water for agricultural purposes without the written consent of the owner, provided, however, that any subsequent nonagricultural use of land which was filled or drained for agricultural purposes at a time when said land was subject to an order under this section may be regulated, restricted, or prohibited by such order. No such order shall prohibit, restrict or regulate the exercise or performance of the powers and duties conferred or imposed by law upon the metropolitan district commission, the Massachusetts Water Resources Authority, the division of fisheries and wildlife, the Massachusetts aeronautics commission, or the state reclamation board, or any mosquito control or other project operating under or authorized by chapter two hundred and fifty-two. If after following the procedures hereinbefore set forth, no such order has become effective as to any particular land or interest therein, the department of environmental management may, subject to a specific appropriation for the purpose, take such land or interest therein by eminent domain, or may acquire the same by purchase, gift or otherwise. Awards of damages, expenses of acquisition of land and water, and expenses incidental thereto and to the preparation of maps and plans of the lands to be affected, to the holding of hearings, and to the adoption and recording of orders, as provided in this section, may be paid out of funds made available for the purpose of section three of chapter one hundred and thirty-two A.

SECTION 3. All employees whose duties are transferred to a department, commission, or other unit of state government by passage of this act, who, immediately prior to the effective date of this act, hold positions related to the exercise of such powers or the performance of such duties and either hold permanent appointment in positions classified under chapter thirty-one of the General Laws or have tenure in their positions classified under chapter thirty-one of the General Laws or have tenure in their positions by reason of section nine A of chapter thirty of the General Laws, are hereby transferred to said department, commission, or other unit of state government to which said powers and duties are so transferred, every such transfer to be without impairment of civil service status, seniority, retirement or other rights of the employee and without interruption of service within the meaning of said chapter thirty-one or said section nine A and without reduction in compensation or salary grade notwithstanding any change in title or duties resulting from such transfer, subject to the provisions of said chapter thirty-one and the rules and regulations adopted thereunder.

All employees who, immediately prior to said effective date, hold positions related to the exercise of such powers or the performance of duties, as are transferred to a department, commission, or other unit of state government, but neither hold permanent appointment in such positions, nor have such tenure, are hereby transferred to said department, commission, or unit to which said powers and duties are so transferred, every such transfer to be without impairment of seniority, retirement and other rights of the employee, and without interruption of service within the meaning of said section nine A of chapter thirty and without reduction in compensation or salary grade, notwithstanding any change in title or duties resulting from such transfer.

Nothing in this section shall be construed to confer upon any employee any rights not held immediately prior to the effective date of this act or to prohibit any reduction of salary or grade, transfer, reassignment, suspension, discharge, layoff, or abolition or position not prohibited prior to said effective date.

The status of the incumbent in any office or position placed within the classified civil service by this act shall be determined pursuant to the provisions of section forty-seven A of said chapter thirty-one.

SECTION 4. All petitions, hearings and other proceedings duly brought before, and all prosecutions and legal and other proceedings duly begun by a department, commission, or other unit of state government, the powers and duties which are transferred upon the effective date of this act, and which arise from or relate to the exercise of such powers or the performance of such duties, and which are pending immediately prior to the effective date of this act, shall continue unabated and remain in force notwithstanding the passage of this act, and shall thereafter be completed before or by said department, commission, or other unit of state government to which said powers and duties are so transferred.

All orders, rules and regulations duly made, and all licenses, permits, certificates and approvals duly granted, by any department, commission, or unit of state government concerning the powers and duties which are transferred by this act, which arise from or relate to the exercise of such powers or the performance of such duties, and which are in force immediately prior to the effective date of this act, shall continue in force and the provisions thereof shall thereafter be enforced, until superseded, revised, rescinded or cancelled in accordance with law, by the appropriate department, commission, or other unit of state government to which said powers and duties are so transferred.

All questions regarding the identification of such petitions, hearings, prosecutions, proceedings, orders, rules, regulations, licenses, permits, certificates and approvals, and of the agencies to which the completion or enforcement thereof is so transferred, shall be determined by the secretary of environmental affairs.

SECTION 5. All books, papers, records, documents, equipment, lands, interests in land, buildings, facilities and other property, both personal and real, which immediately prior to the effective date of this act, are in the custody of a department, commission, or other unit of state government, relating to powers and duties which are transferred by this act and which related to or are maintained for the purpose of the exercise of such powers or the performance of such duties, are hereby transferred to the department, agency, or other unit of state government to which said powers and duties are so transferred.

All questions regarding the identification of such property and of the agencies to which custody thereof is transferred shall be determined by the secretary of environmental affairs.

SECTION 6. All duly existing contracts, leases and obligations of any department, commission or other unit of state government concerning the powers and duties which are transferred by passage of this act, which relate to the exercise of such powers or the performance of such duties, and which are in force immediately prior to the effective date of this act, shall thereafter be performed by the department, commission, or other unit of state government to which said powers and duties are so transferred. No existing right or remedy of any character shall be lost, impaired or affected by the provisions of this act.

SECTION 7. All monies heretofore appropriated for a department, commission, or other unit of state government, concerning the powers and duties which are transferred by passage of this act, for the purpose of the exercise of such powers of the performance of said duties, and remaining unexpended on the effective date of this act, are hereby transferred to, and shall be available for expenditure by, said department, commission, or other unit of state government to which said powers and duties are so transferred, for the purposes for which such funds were originally appropriated.

All questions regarding the identification of such monies and of the agencies to which they are so transferred shall be determined by the secretary of environmental affairs.

SECTION 8. Wherever the name of a department, commission or other unit of state government concerning the powers and duties which are transferred by passage of this act, appears in any general or special law, or in any order, rule, regulation or other document related to the exercise of such powers or the performance of such duties, such name shall mean and shall be construed as referring to the department, commission, or other unit of state government to which said powers and duties are so transferred.

SECTION 9. All powers, duties and other statutory provisions which prior to the effective date of this act were assigned to, or exercised by, a department, commission, or other unit of state government or were assigned to or exercised by any officer of any such unit shall continue to be exercised and performed by, and to be assigned to, such unit or officer except as such powers, duties or other statutory provisions are modified by this act.