SENATE DOCKET, NO. 194        FILED ON: 1/14/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 451

The Commonwealth of Massachusetts

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PRESENTED BY:

Marc R. Pacheco

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act providing for the establishment of a comprehensive adaptation management plan in response to climate change.

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PETITION OF:

SENATE DOCKET, NO. 194        FILED ON: 1/14/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 451

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 2028 OF 2013-2014.]

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act providing for the establishment of a comprehensive adaptation management plan in response to climate change.

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. The General Laws are hereby amended by inserting after chapter 21O the following chapter: Chapter 21P.

COMPREHENSIVE ADAPTATION MANAGEMENT PLANNING IN RESPONSE TO CLIMATE CHANGE.

Section 1. As used in this chapter the following words shall have the following meanings unless the context clearly requires otherwise:

“Adaptation”, a response and process of adjustment to actual or expected climate change and its effects that seeks to increase the resiliency and reduce the vulnerability of Massachusetts’ built and natural environments and seeks to moderate or avoid harm or exploit beneficial opportunities to reduce the safety and health risks that vulnerable human populations, and resources will encounter due to such change.

“Executive office”, the executive office of energy and environmental affairs.

“Hazard mitigation”, an effort using nonstructural measures to reduce loss of life and property by lessening the impacts of major storms.

“Plan”, the comprehensive adaptation management plan.

“Resilience”, the capacity of social, economic, and environmental systems to cope with a hazardous event or trend or disturbance, responding or reorganizing in ways that maintain their essential function, identity, and structure, while also maintaining the capacity for adaptation, learning, and transformation.

“Risk assessment”, evaluating and prioritizing known risks and their effects.

“Risk management”, making a decision and setting policy based on the knowledge acquired through risk assessment.

“Sustainability”, the establishment and maintenance of conditions under which humans and nature can exist in productive harmony and fulfill the social, economic and other requirements  of present and future generations in a just and equitable manner, including providing for the long-term viability of the people and economy of the commonwealth and its natural ecosystems, which requires consideration of the risks posed by climate change, the practicality of maintaining a long-term presence in the most vulnerable areas and the need to protect and restore natural ecosystems and their services.

“Vulnerability”, the propensity of predisposition to be adversely affected. Vulnerability encompasses a variety of concepts and elements including sensitivity or susceptibility to harm and lack of capacity to cope and adapt.

Section 2.  (a) Notwithstanding any general or special law to the contrary, the secretary of energy and environmental affairs and the secretary of public safety and security, with appropriate secretariats as determined by the Governor, shall develop, draft and adopt a comprehensive adaptation management action plan. 

The plan shall be developed under the guidance of an interagency advisory committee and supported by Advisory Commission in section F and technical subcommittees and staff as necessary.   

Upon the adoption of the comprehensive adaptation management plan, all commonwealth certificates, licenses, permits, authorizations, grants, financial obligations, projects, plans, actions, and approvals for any proposed projects, uses, or activities in and by the commonwealth shall be consistent, to the maximum extent practicable, with the adopted plan.

The plan shall be completed no later than two years after the effective date of this act and shall be updated at least five years.  The plan, and all updates, shall be filed with clerks of the house of representatives and senate.

(b) The plan shall include, but not be limited to:  (i) a statement setting forth the commonwealth’s goals, priorities and principles for ensuring effective prioritization for the resiliency, preservation, protection, restoration and enhancement of the commonwealth’s built and natural infrastructure; (ii) a commitment to the adherence of sound management practices which shall take into account the existing natural, built and economic characteristics of the commonwealth’s most vulnerable areas and human populations; (iii) data on existing, forecasted and projected impacts including, but not limited to, drought and temperature changes, inland flooding and sea level rise according to the best and latest data, forecasting and models;  (iv) a statement on the preparedness and vulnerabilities in the commonwealth’s emergency response and infrastructure resiliency including, but not limited to, energy, transportation, communications, health and other systems; and (vii) an assessment of the economic vulnerability in high risk communities to local businesses

(c) The plan shall include the following sequential steps: (i) a preliminary report (ii) an inventory and vulnerability assessment of human populations, and the natural and built assets of the commonwealth, subject to the threat of climate change, (iii) a final report.

(d)  There shall be a Comprehensive Adaptation Management Plan Advisory Commission to assist the secretary of energy and environmental affairs and the secretary of public safety and security in developing the comprehensive adaptation management plan. The commission shall consist of: stakeholders and comprised of representatives with expertise in the following areas: transportation and built infrastructure; commercial, industrial and manufacturing activities; commercial property management and real estate; low income consumers; energy generation and distribution; land conservation; water supply and quality; recreation; ecosystems dynamics; coastal zone and oceans; rivers and wetlands; and local government.

(e) The secretary of energy and environmental affairs and the secretary of public safety and security shall convene an interim task force that shall prepare an interim plan concurrently with the management plan.  Nothing in the management plan shall prevent the preparation of the interim plan.  The task force shall be comprised of representatives with expertise in the following areas: transportation and built infrastructure; commercial, industrial and manufacturing activities; commercial property management and real estate; low income consumers; energy generation and distribution; land conservation; water supply and quality; recreation; ecosystems dynamics; coastal zone and oceans; rivers and wetlands; and local government.

The interim plan shall include but is not limited to:

   (1) supporting existing efforts of state agencies, such as the SmartCoasts program at the Office of Coastal Zone management, BioMap2 at the Department of Fish and Game, and vulnerability studies being conducted by the Department of Public Health and the Department of Transportation. 

   (2) Recommending new actions that could be implemented immediately using existing state agency legal authorities, state resources and funding based upon the following:

      (a) a compilation and prioritization of strategies and actions, derived from the recommendations included in the climate change adaptation report prepared under section 9 of chapter 298 of the acts of 2008;

      (b) a compilation and prioritization  of recommendations from climate change action plans prepared by regional planning agencies and municipalities,

      (c) Unilateral actions by the executive branch, including but not limited to:  executive orders and policy directives issued by the governor; and policies, regulations and guidance by the Secretary.

   (3) Recommending new actions that require new state authorities, resources and funding, including but not limited to:

      (a) identifying new potential sources of revenue.

Subsections (1) through (3) shall include but not be limited to: the establishment of goals and outcomes; the identification of existing legal authorities under which actions can take place; designation of lead state agencies and partners; timeframe and potential costs of recommendations; a general estimate of the costs of inaction related to liabilities; and the identification of resources such as public funds and private funds including the identification of opportunities to leverage funds through partnerships between federal-state agencies and public and private entities.

      (2) a technical advisory committee on the risks associated with climate change including, but not limited to, the risks associated with temperature changes, drought and increased precipitation and coastal and inland flooding.

The advisory committee shall be chaired by the secretaries, or their designees, and shall be comprised of representatives with expertise in the following areas: (1) coastal zone and river flooding and erosion; (2) hydrological and hydraulic modeling; (3) natural hazard preparedness and mitigation; (4) sea level and storm surge projections; (5) risk measurement and reduction; (6) emergency management planning; and (7) scenario planning.  The advisory committee shall, within 6 months from the effective date of this act complete an preliminary report which shall include:

(A) a set of combined sea-level rise and coastal and river storm-surge scenarios;

(B) estimates of risk levels of each scenario occurring by 2030, 2050 and 2100;

(C) estimates of flood water levels in coastal and flood plain and river front areas under each scenario which shall  reflect appropriate local information such as local uplift and subsidence, and coastal erosion  rates;

(D) estimates based on hydrological and hydraulic modeling of coastal and flood plain and river front flood water levels in each scenario in historically coastal areas now currently protected by dams, including river basins;

(E) develop scenario planning and the capability to explore policy options for guiding

   where to build, what to build and how to strengthen communities in areas of greatest risk; and

              (F) identify critical buffer areas of coast and forests and flood plains that serve to significantly reduce vulnerability to climate related impacts, to guide priorities for state, regional, and local land protection initiatives.

The preliminary report shall serve as the basis for vulnerability assessments which state agencies and public utilities shall develop for their portfolio of assets. For the purposes of this paragraph, “state agencies” shall include all executive agencies including, without limitation, the Massachusetts Department of Transportation, the department of environmental protection, the department of capital asset management and maintenance, the department of conservation and recreation, the department of public utilities, the department of public health, the Massachusetts Emergency Management Agency and independent and quasi-public agencies including, but not limited to, the Massachusetts Bay Transportation Authority, the Massachusetts Water Resources Authority and the Massachusetts Port Authority, and public utilities shall include energy generation and transmission, solid waste, drinking water, wastewater and stormwater and telecommunication utilities serving areas identified in the initial report as subject to material risk of flooding.

The vulnerability assessments shall classify the economic losses over time associated with each major asset for each flooding scenario as unacceptable, non-critical or immaterial. For assets exposed to material risk of unacceptable losses, the vulnerability assessment shall include order-of-magnitude cost-estimates for: (i) measures to protect the assets from flooding; (ii) measures to make the assets flood resilient; and (iii) removal and relocation of the assets from flood-exposed coastal and river areas. Estimates shall also be prepared for the economic, social and environmental damages if no adaptation actions are taken. Qualitative benefit-cost discussions of projected social impacts of flood prevention versus flood resilience shall also be included.  This shall include consideration of avoided costs associated with guiding new development away from vulnerable locations and maintaining the water-absorbing capacity of the natural forested landscape.

The vulnerability assessments shall be submitted to the advisory committee within 12 months of the completion of the preliminary report. The advisory committee shall create a final report based on the findings of the preliminary report and vulnerability assessments within 3 months of the completion of the vulnerability assessments.  The final report shall include but not be limited to: (a) the establishment of goals and outcomes; (b) the identification of existing legal authorities under which actions can take place and recommend new authorities where they do not already exist; (c) designation of lead state agencies and partners; and, (d) prioritization, timeframe and potential costs of recommendations.

The secretaries shall, at least 6 months before establishing a comprehensive adaptation management plan pursuant to this section, provide for public access to the draft plan in electronic and printed copy form and shall provide for a public comment period, which shall include at least 5 public hearings across the commonwealth. The secretaries shall publish notice of the hearings in the Environmental Monitor within 30 days of the date of the hearings. A notice of the public hearings shall also be placed, at least once each week for the 5 consecutive weeks preceding the hearings, in newspapers with sufficient circulation to notify the residents of the where the hearings shall be held. The hearings shall be held not sooner than 30 days and not later than 35 days after the notice is published in the Environmental Monitor. The public comment period shall remain open for at least 60 days from the date of the final public hearing. After the close of the public comment period, the secretaries shall issue a final comprehensive adaptation management plan and shall file the plan, together with legislation necessary to implement the plan, if any, by filing the same with the clerks of the house of representatives and senate.

a public hearing before issuing the plan. The plan must be issued within 24 months of the effective date of this act and shall file the same with the clerks of the senate and  house of representatives.

Section 3. The comprehensive adaptation management plan shall be consistent with this section and all other general and special laws. The comprehensive adaptation management plan shall not be construed to supersede existing general or special laws, or to confer rights and remedies in addition to those conferred by existing general or special laws.

Section 4. The plan shall encourage and provide guidance to regional planning agencies to proactively address the unavoidable consequences of climate change and provide a process for local and regional climate vulnerability assessment and adaptation strategy development.

Section 5.  There shall be established and set up on the books of the commonwealth a regional comprehensive adaptation management plan grant program. The program shall provide financial assistance to regional planning agencies for the development and implementation of plans at the regional levels of government. The regional plans shall include, but not be limited to: (i) plans for a step-by-step process for regional climate vulnerability assessment and adaptation strategy development; (ii) a definition of regional impacts by supporting communities conducting climate vulnerability assessments; and (iii) an understanding of regional characteristics, including regional environmental and socioeconomic characteristics.

Section 6.  Regional grants shall be administered by the executive office.  Regional grants shall be designed to reduce community risks and hazards as a result of climate change.  Regional grants shall advance regional and local efforts to adapt land use, zoning, infrastructure, policies and programs to reduce the vulnerability of the built and natural environment to changing environmental conditions as a result of climate change.  State agencies shall prioritize the protection of identified inland as well as coastal vulnerable locations not yet built upon.

Section 7.  The executive office may acquire by purchase from willing sellers, land abutting or adjacent to areas subject to the ebb and flow of the tide or on barrier beaches or in velocity zones of flood plain areas, on which structures  have been substantially and repeatedly damaged by severe weather, for conservation and recreation purposes.

Section 8.   Prior to the acquisition of any land under this act, the executive office shall develop a conservation and recreation management plan for any such land after consultation with the city or town in which the land is located.  The management plan shall set forth the priority, description and location of lands to be acquired, and any land management agreement reached between said agency and municipality for local responsibility to carry out the development and management of said property.  All land acquired pursuant to this chapter shall be deemed to have been acquired for protection of the people in their right to conservation, development, and utilization of natural resources.

Section 9.  No land shall be acquired under this act until after a public hearing has been held by

the executive office in the municipality in which the land is situated to consider the management plan. The mayor and city council in a city or the board of selectmen, planning board and conservation commission, if any, of a town shall be notified of such hearing.

Section 10.  If the executive office deems it necessary to make appraisals, surveys, soundings, borings, test pits or other related examinations to obtain information to carry out this act, the executive office or its authorized agents or employees may, after due notice by registered mail, enter upon lands, water and premises, not including buildings, to make such appraisals, surveys, soundings, borings, test pits and other related examinations as it may deem necessary or convenient for the purposes of this act and such entry shall not be a trespass. The executive office  shall provide reimbursement for any injury or actual damages resulting to the lands, waters and premises caused by any act of its authorized agents or employees and shall, so far as possible, restore the lands to the same condition as prior to making such appraisals, surveys, soundings, borings, test pits or other related examinations.

Section 11.  The executive office may expend such sums as may be available from any source to carry out section 1, including expenses in connection therewith and the cost of planning therefore and for the development, redevelopment or improvement thereof.

Section 12.  This act shall be in addition to any other bond authorization, appropriation or authority to acquire land available to any agency of the commonwealth.

Section 13.  The executive office, acting for and on behalf of the commonwealth, may lease to cities and towns, on a form approved by the attorney general, for not more than 25 years, certain property conveyed to the commonwealth under section 1 or by the federal emergency management agency under 42 USC 4001, section 1362 of Pub. L. 90-448, as amended, for use as conservation and recreation areas. Leases shall be in such form and contain such provisions as the secretary of environmental affairs shall determine, including such terms and conditions which are necessary to comply with laws relative to the protection of barrier beaches. Lands shall be leased upon the express conditions that the land shall be used for conservation and recreation purposes only, that no permanent structures shall be erected and a reversionary clause that requires the lease to be terminated if the leased land is used in violation of this act.

Section 14.  In consideration for the granting of a lease authorized in section 13, a city or town shall agree to maintain the acquired land as a clean, safe and orderly conservation or recreation area.

Section 15.  Pursuant to its authority under section 40 of chapter 131 of the General Laws, the commissioner of environmental protection shall, within 180 days of the effective date of this act, promulgate rules regulating the dredging, filing or altering of land subject to coastal storm flowage.