Public benefit determination

301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

301 CMR 13.00: PUBLIC BENEFIT DETERMINATION

Section

13.01: Definitions 13.02: Applicability 13.03: Procedures 13.04: Standards 13.05: Relationship of Public Benefit Determination and Chapter 91 License

.00 establishes the procedures and standards to implement the "public benefit determination" requirement under M.G.L. c. 91, § 18B which was enacted by St. 2007, c. 168, § 8. St. 2007, c. 168, § 8 expressly exempts uses and structures in "landlocked tidelands" from the licensing requirements under M. G.L. c. 91, and requires the Secretary of the Executive Office of Energy and Environmental Affairs (the Secretary) to issue a public benefit determination for certain projects in tidelands, including landlocked tidelands.

13.01: Definitions

Department means the Department of Environmental Protection (DEP).

Landlocked Tidelands is defined in 310 CMR 9.02.

MEPA means the Massachusetts Environmental Policy Act, M.G.L. c. 30, §§ 61 through 621, and 301 CMR 11.00.

Secretary means the Secretary of the Executive Office of Energy and Environmental Affairs.

Tidelands is defined in .02.

Water-dependent Use is defined in .12(2).

Water-dependent Use-Project is defined in .12(1).

Nonwater-dependent Use is defined in .12.

Nonwater-dependent Use Project is defined in .12(1).

For purposes of interpreting .00, the definitions of terms contained in 301 CMR 11.00 and 310 CMR 9.00 shall apply.

13.02: Applicability

The Secretary shall conduct a public benefit determination for projects that fall within .02(1). The Secretary may conduct a public benefit determination for projects that do not fall within 301 CMR 13.02(1) in accordance with .02(2).

(1) Mandatory Public Benefit Review. A public benefit determination shall be required for any project that:

(a) files an environmental notification form after November 15, 2007; (b) is required to file an environmental impact report; and (c) is completely or partially located in tidelands or landlocked tidelands.

(2) Discretionary Public Benefit Review. For any project that:

(a) files an environmental notification form after November 15, 2007; (b) is not required to file an environmental impact report; and (c) is completely or partially located in tidelands or landlocked tidelands, the Secretary may require a public benefit determination based on circumstances relating to the nature of the project, the nature of the tidelands in question, the project location, or other similar factors where a public benefit review is necessary to protect public trust rights in tidelands.

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301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

13.03: Procedures

(1) Projects undergoing mandatory public benefit review shall follow these procedures:

(a) The proponent shall include in the environmental notification form or the environmental impact report (at the proponent's election) detailed information describing the nature of the tidelands affected by the project and the public benefit of the project, including the purpose and effect of the project, the impact on abutters and the surrounding community, enhancement to the property, benefits to the public trust rights in tidelands or other associated rights, including but not limited to, benefits provided through previously obtained municipal permits, community activities on the site, environmental protection and preservation, public health and safety, and the general welfare. For projects in landlocked tidelands, this information may be combined with the information required under ,05(4)(b) and .07(6)(g)10. (b) The public shall have the opportunity during the MEPA public comment period(s) to comment on whether the project provides a public benefit, and the proponent shall have the opportunity to submit additional information during the MEPA process. (c) For projects in landlocked tidelands, the Secretary shall make a public benefit determination within 30 days after the issuance of the certificate concluding the MEPA process or the issuance of any waiver pursuant to .11. (d) For projects requiring a chapter 91 license, the Secretary shall make a public benefit determination within 30 days after the issuance of a certificate concluding the MEPA process or the issuance of any waiver pursuant to .11.

(2) Discretionary Public Review. Should the Secretary require a public benefit determination for projects pursuant to 310 CMR 13.02(2), the Secretary shall so state in the certificate on the environmental notification form. The certificate shall request specific information from the proponent regarding the project's public benefit. When such specific information is submitted, the Secretary shall publish a notice of the filing of such information in the environmental monitor and receive comments for 30 days from publication. The Secretary shall make a public benefit determination within 30 days after the close of public comment.

13.04: Standards

(1) Water-dependent Projects. The Secretary shall presume that water-dependent projects meet the criteria listed in .04 and provide adequate public benefit.

(2) Nonwater-dependent Projects. In making the public benefit determination, the Secretary shall consider the following criteria:

(a) the purpose and effect of the project, (b) the impact on abutters and the surrounding community, (c) enhancement to the property, (d) benefits to the public trust rights in tidelands or other associated rights, including but not limited to, benefits provided through previously obtained municipal permits, (e) community activities on the site, (f) environmental protection and preservation, (g) public health and safety, and the general welfare.

(3) Application of Criteria. In weighing the adequacy of the proposed public benefit, the Secretary shall place particular emphasis on the benefit to the public trust rights in tidelands.

In weighing the benefit to the public trust rights in tidelands, the Secretary shall apply a preference for a benefit provided on-site. If no significant benefit is feasible on the site, the Secretary shall apply a preference for a benefit in the same general area. If no significant benefit is feasible in the same general area, the Secretary may accept a voluntary payment in lieu thereof to compensate for the public's loss of tideland- related rights. Such payment shall be placed into an expendable trust and used for the purpose of promoting public access to, and use and enjoyment of, the waterfront. The Secretary's determination as to the use of such funds shall be guided by municipal harbor plans or other plans addressing access to and along the waterfront. The proponent may also offer and the Secretary may accept a public benefit consisting of a combination of on-site improvements, off-site improvements, and a payment.

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301 CMR: EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS

13.05: Relationship of Public Benefit Determination and Chapter 91 License

The Department shall incorporate the public benefit determination of the Secretary in its official record of the chapter 91 license. The Secretary's public benefit determination shall not supersede, eliminate, or in any way impair the Department's exercise of its powers under chapter 91.

REGULATORY AUTHORITY

.00: M.G.L. c. 91, § 18B.

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