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REVISION OF MASSACHUSETTS ENVIRONMENTAL POLICY ACT REGULATIONS NOW EFFECTIVE

The long-awaited revisions to the Massachusetts Environmental Policy Act became effective on July 1, 1998. These revisions resulted from the efforts of an Advisory Committee, consisting of representatives of the public sector, private sector and public interest groups, which began its work in early 1997.

Background.

In recent years, the Massachusetts development climate has been criticized by the business community for the length and the duplication of efforts of its permitting process. Most maligned has been the Massachusetts Environmental Policy Act (commonly referred to as “MEPA”) process. The concept of the MEPA process is that environmental review should be coordinated in a single state office with particular environmental expertise. However, in practice, the MEPA process has been perceived as often being triggered by projects which did not have significant environmental impacts and as often requiring studies beyond those relating to state permits or funding. If the MEPA process were involved, the common experience was that six to nine months would be added to the development schedule for a project, adding expense and putting Massachusetts at a competitive disadvantage for development.

Highlights of the Revised MEPA Regulations.

In general, the development community will welcome the revised MEPA regulations.

The thresholds for both the filing of an Environmental Notification Form (commonly known as an “ENF”) and the mandatory preparation of an Environmental Impact Report (commonly known as an “EIR”) have been revised. In most cases, the threshold levels have been raised. Also, the thresholds are more narrowly targeted to the environmental effects of a project rather than merely the size of the project. For example, the number of housing units being constructed is no longer of significance. What will be important is whether such construction has a particular effect on the environment.
In most cases, the permit or other state action must specifically relate to the subject matter of the threshold in order for MEPA review to be required. Thus, for example, a project which does not require a Massachusetts Highway Department permit will not have to file an ENF or prepare an EIR even if it exceeds a threshold relating to traffic generation. This important change will eliminate the problem of “jurisdictional mismatches” in most cases.

The remaining situation in which a permit or other state action may not specifically relate to a threshold, however, is projects altering significant areas of land (at least 50 acres) or creating significant new impervious area (at least 10 acres) and projects within an Area of Critical Environmental Concern. For these projects, EIRs are required even if the project does not exceed any threshold relating to a particular permit or other state action. ENFs also must be filed if a project alters more than 25 acres of land or creates more than 5 acres of impervious surface even if the project does not exceed any other threshold relating to a particular permit or other state action.

The revised regulations will give developers more flexibility to shorten the MEPA review process. Developers will be able to request that only a single EIR be filed, rather than a draft and final EIR. An expanded, buttressed ENF also may be filed in support of a request for lessening subsequent steps in the review process.
In appropriate cases, a Special Review Procedure can be fashioned by agreement between the developer and the MEPA Office. In a Special Review Procedure, the MEPA process can be modified in many respects and tailored to the needs of a project. The flexibility afforded by this procedure may be of particular use in phased projects.
In order to encourage early action by state agencies, agency action now may be taken before MEPA review is completed, as long as the agency confirms its action after completion of the MEPA review.
Notices of Project Change will no longer be required after the state actions have been taken, unless a project change itself is in excess of an ENF threshold. A Notice of Project Change only will be required for “material” changes (although the term “material” is left undefined). The regulations also suggest that dimensional increases of less than 10% or impact increases of less than 25% of the level specified in a review threshold will not be considered environmentally significant, so that further environmental review generally will not be required of projects in these cases.

New Procedures of which to be Aware.

The new regulations provide for expiration of MEPA approvals, and will not allow a Notice of Project Change to be filed for a stale project. If more than three years pass between the notice of availability of an EIR and commencement of a project, a Notice of Project Change must be filed. If more than five years pass, the MEPA process must be repeated by filing a new ENF. Rights in the MEPA process also are lost in certain cases if construction is suspended for more than three years, or if major steps in non-construction activities are discontinued.

Similarly, if a property is not operated or tenanted for more than three years, the property will be considered a “New” project for purposes of MEPA review, if any state action is required.
Proposed Section 61 Findings to be made by the state agencies will be required to be included in the EIRs.
The existing regulations contain a widely-ignored requirement that a Notice of Commencement of Construction be filed when construction is begun on any project which required an EIR. This requirement likely will be given greater procedural import, since the Notice will serve as a baseline for the passage of time which may require a Notice of Project Change or a new ENF due to lapse of time. A Notice of Project Change also is required if a proponent does not proceed with a project.

Transition Rules.

After their effective date, the new regulations will apply to all projects, even those for which an ENF previously has been filed, with two exceptions. First, projects for which an ENF has been filed will continue to be subject to the thresholds of the old regulations. Second, the provision requiring a new ENF for lapse of time will not apply to projects for which MEPA filings have been made until one year after the effective date of the new regulations.

Practice Tips.

Developers will be well-advised to consider the following practice tips.

If the development is one of the few situations in which an EIR would not be required under the old regulations but would be required under the new regulations (such as creation of impervious surface of 10 acres) -- consider filing an ENF before the effective date of the new regulations, so that the old “categorical inclusion” thresholds will continue to apply.
For projects “in the pipeline” which were stalled due to real estate downturn -- if more than five years have passed since the end of MEPA review and no action has been taken on the project (or action was taken and then abandoned for specified periods of time), make sure that a Notice of Project Change extending the construction schedule is filed within one year of the effective date of the new regulations. This will avoid the requirement that a new ENF be filed.
If properties are left vacant or unused -- in order to avoid the requirement for new MEPA filings (if any new state action is required) make sure that a property is not left vacant or unused for more than three years. After three years, the project becomes a “new” project requiring MEPA filings if any new state action is involved.
Carefully review the new thresholds with your attorney and engineers --Although in most cases the new thresholds are less strict and are more narrowly focused than the previous regulations, there may be some exceptions and peculiar narrowly targeted new thresholds (such as extension of water services across a municipal boundary).
If no ENF was filed for a Project -- in order to avoid being impacted by the new regulations, make sure that applications are completed and that agency review is completed before the effective date of the new regulations. Also, make sure that the state agencies take all required action within 60 days of the effective date of the new regulations.

See the resume of Marilyn L. Sticklor: Resume

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Last revision: 7/8/98