Tidelands, uplands, Mugar, regulatory politics

I write to update you on a technical land use regulatory issue of
considerable local interest.

17th century Massachusetts law grants coastal landowners title to the land
between the high and low tide marks, but guarantees the public a right of
access to the so-called “tidelands” — for fishing, fowling, and similar
uses.

Filled tidelands — once below the historic high water mark but since filled
— raise an interesting issue. Under the law, these were long treated in
essentially the same way as currently flowed tidelands. For centuries, an
act of the legislature was required for development in these areas. In the
1980s, the legislature provided that DEP could permit tidelands development
without a legislative act upon a showing of public benefit.

DEP set up a regulatory framework in which “landlocked tidelands” — those
filled tidelands separated from current high water by a public way and more
than 250 feet from the current high water — were entirely exempted from
regulation. A recent SJC court decision related to a project in Cambridge
decided that DEP did not have authority to relinquish its regulatory
authority over landlocked tidelands.

The administration has filed a bill which would, in effect, reinstate the
exemption. Clearly a solution is required to settle confusion regarding the
status of projects that have been built over the past 17 years that the
exemption was in effect. However, in my view and the view of other local
legislators, the legislation appears to go too far in granting the exemption
to present and future projects.

In fact, it appears that the court decision and related law may afford some
protection to the Belmont Uplands and to other properties in Alewife area,
possibly including the Mugar property. Much of the Alewife area was once
under 4-5 feet of tidal water and would be today but for the action of the
Amelia Earhart dam across the Mystic River in Everett, a seawall which holds
out the high tides while letting the River drain at low tide.

The Belmont Board of Selectmen is currently consulting with counsel
regarding the possibility that the tidelands law could protect the Uplands.

The Environment Committee on which I sit, will hold a hearing on the bill
this Thursday, 4/5, at 1:00PM in room A-1 in the State House. It is a
public hearing. Anyone wishing to testify is welcome. Testimony is limited
to 3 minutes and written testimony is much appreciated. If you are
interested in testifying and would like to talk in advance about what would
be most helpful, please feel free to call or e-mail me.

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District