Amendment #181 to S3064

Improved process

Mr. Turco of Winthrop moves to amend the bill by striking section 55 and inserting in place thereof the following section:-

SECTION 55. Said section 40 of said chapter 131, as so appearing, is hereby further amended by striking out the seventeenth, eighteenth and nineteenth paragraphs and inserting in place thereof the following 3 paragraphs:-

The conservation commission, select board or mayor receiving notice under this section shall hold a public hearing on the proposed activity within 21 days of the receipt of said notice. Notice of the time and place of said hearing shall be given by the hearing authority at the expense of the applicant not less than 5 days prior to such hearing, or another period of time specified in department regulations, by publication in a newspaper of general circulation in the city or town where the activity is proposed or notice on the city or town website or other means, as specified in regulations promulgated by the department, and by mailing a notice to the applicant and the board of health and the planning board of said city or town. The conservation commission and its agents, officers and employees and the commissioner of environmental protection and their agents and employees may enter upon privately owned land for the purpose of performing their duties under this section. No conditions shall be imposed, nor shall any determination be rendered by a conservation commission, in reference to this section, unless the conservation commission meets with a quorum present. Notwithstanding any local wetlands bylaw or ordinance to the contrary, the department may provide by regulation that certain activities that require a notice of intention may not require a public hearing but shall require public notice.

If, after said hearing or after deliberation of the conservation commission, select board, board of selectmen or mayor, on the notice of intent where no hearing is required, the conservation commission, select board, board of selectmen or mayor, as the case may be, determines that the area on which the proposed work is to be done is significant to: (i) public or private water supply; (ii) the groundwater supply; (iii) flood control; (iv) storm damage prevention; (v) prevention of pollution; (vi) protection of land containing shellfish; (vii) the protection of wildlife habitat; (viii) the protection of fisheries; (ix) resilience for changing climate conditions; or (x) the protection of the riverfront area consistent with the following purposes, to: (A) protect the private or public water supply; (B) protect the ground water; (C) provide flood control; (D) prevent storm damage; (E) prevent pollution; (F) protect land containing shellfish; (G) protect wildlife habitat; (H) protect the fisheries; or (I) resilience for changing climate conditions, such conservation commission, select board, board of selectmen or mayor shall, by written order, within 21 days of such hearing, or within 21 days from publication of the notice if no hearing is required, impose such conditions as will contribute to the protection of the interests described herein, and all work shall be done in accordance therewith. If the conservation commission, select board, board of selectmen or mayor, as the case may be, determines that the proposed activity does not require the imposition of such conditions, the applicant shall be notified of such determination within 21 days after said hearing, or within 21 days from publication of the notice if no hearing is required. Such order or notification shall be signed by the mayor or a majority of the conservation commission or select board or board of selectmen, as the case may be, and a copy thereof shall be sent forthwith to the applicant and to the department. The department may designate, by regulation, types of proposed work, including, but not limited to: (i) certain nature-based solutions projects, as defined in section 62E of chapter 30, ecological restoration, or wetlands resilience projects; or (ii) priority housing projects, as defined in section 62E of chapter 30, consistent with commonwealth land use planning and housing strategies and plans, climate resilient design guidelines and environmental priorities, that may upon election of the applicant be approved with a general order of conditions; provided, that the proposed project does not result in impacts to areas subject to jurisdiction that are greater than those specified by the department in regulations. Local wetlands bylaws and ordinances shall not apply to the projects authorized under the general order of conditions.  For linear shaped projects where work is proposed in 3 or more adjacent municipalities, the applicant shall may submit a notice of intent, request for determination or other request, specified by the department in regulations, directly to the department for review and decision and local wetlands bylaws and ordinances shall not apply to these projects. Prior to issuing a decision, the department shall provide the conservation commissions in these municipalities with an opportunity to comment on the notice or request.

If a conservation commission has failed to hold a hearing within the 21 day period as required, if a commission, after holding such a hearing has failed within 21 days therefrom to issue an order, if no hearing is required and a commission has failed within the 21-day period to issue an order, if a commission, upon a written request by any person to determine whether this section is applicable to any work, fails within 21 days to make said determination or where the conservation commission does issue an order, the applicant, any person aggrieved by said commission’s order or failure to act, any owner of land abutting the land upon which the proposed work is to be done or any 10 residents of the city or town in which said land is located may, by certified mail or electronic filing, as specified in regulations, and within 10 days from said commission’s order or failure to act, request the department of environmental protection to determine whether the area on which the proposed work is to be done is significant to public or private water supply, the groundwater supply, flood control, storm damage prevention, pollution prevention, the protection of land containing shellfish, the protection of wildlife habitat, the protection of fisheries, resilience for changing climate conditions, or the protection of the riverfront area consistent with the following purposes: protecting the private or public water supply, protecting the groundwater supply, providing flood control, preventing storm damage, preventing pollution, protecting land containing shellfish, protecting wildlife habitat, protecting fisheries and supporting resilience for changing climate conditions. The commissioner of environmental protection or a designee also may request such a determination within said 10-day period. The party making any such request shall at the same time send a copy thereof by certified mail to the conservation commission, select board or mayor, which conducted the hearing hereunder. If such party is not the applicant, a copy of such request shall also be sent at the same time by certified mail to the applicant. Upon receipt of such request, the department shall make the determination requested and shall, by written order issued within 70 days of receipt of such request and signed by the commissioner or their designee, impose such conditions as will contribute to the protection of the interests described herein; provided, however, that said department shall notify the applicant within 30 days of the receipt of such request if the application or request is not in proper form or is lacking information or documentation necessary to make the determination. Such order shall supersede the prior order of the conservation commission, select board or mayor, and all work shall be done in accordance therewith, but in no event shall any work commence until 10 days have elapsed following the issuance of said order. In the case of riverfront areas, no order issued by a conservation commission, select board, mayor or the department shall permit any work unless the applicant has, in addition to meeting the otherwise applicable requirements of this section, proved by a preponderance of the evidence that: (i) such work, including proposed mitigation measures, has no significant adverse impact on the riverfront area for protecting the private or public water supply, protecting the groundwater supply, providing flood control, preventing storm damage, preventing pollution, protecting land containing shellfish, protecting wildlife habitat, protecting fisheries or supporting resilience for changing climate conditions; and (ii) there is no practicable and substantially equivalent economic alternative to the proposed project with less adverse effects on such purposes. An alternative is practicable and substantially economically equivalent if it is available and capable of being done after taking into consideration (i) costs, and whether such costs are reasonable or prohibitive to the owner; (ii) existing technology; (iii) the proposed use; and (iv) logistics in light of overall project purposes. For activities associated with access for 1 dwelling unit, the area under consideration for practicable alternatives will be limited to the lot; provided, that said lot shall be on file with the registry of deeds as of August 1, 1996. For other activities, including, but not limited to, the creation of a real estate subdivision, the area under consideration shall be the subdivided lots, any parcel out of which the lots were created and any other parcels that are adjacent to such parcel or adjacent through other parcels formerly or presently owned by the same owner at any time on or after August 1, 1996 or any land which can reasonably be obtained; provided, that an ownership interest can reasonably be obtained after taking into consideration (i) cost, and whether such cost is reasonable or prohibitive to the owner; (ii) existing technology; (iii) the proposed use; and (iv) logistics in light of overall project purposes. At any time prior to a final order of determination by the department, any party requesting a determination may, in writing, withdraw the request, and such withdrawal shall be effective upon receipt of the withdrawal request by the department. Notwithstanding the withdrawal, the commissioner or their designee may continue the determination if they notify all parties within 10 days of receipt of the withdrawal. A copy of such order shall be sent to the applicant, to the conservation commission, select board or mayor which conducted the hearing hereunder. As used in this section, the term “wildlife habitat” shall mean those areas subject to this section, which, due to their plant community composition and structure, hydrologic regime or other characteristics provide important food, shelter, migratory or overwintering areas or breeding areas for wildlife. The department may provide, by regulation, that superseding orders of conditions and superseding determinations of applicability for certain types of proposed work, including, but not limited to, certain nature-based solutions projects, ecological restoration, or wetlands resilience projects, or for work in the buffer zone as defined by the department by regulation or for certain priority housing projects, as defined in section 62 of chapter 30, consistent with commonwealth land use planning and housing strategies and plans, climate resilient design guidelines and environmental priorities, may not be the subject of a request for an adjudicatory hearing in accordance with chapter 30A, and that any person aggrieved such a superseding order of conditions or superseding determination of applicability may obtain judicial review by filing an application for review in the superior court within 21 days after receipt a superseding order of conditions or superseding determination of applicability from the department.