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4~If Written Statements From Parties Who Commented On The Massachusetts Coastal Management Program And The Draft Environmental Impact Statement Washington, D.C. February 1978 U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Coastal Zone Management COMMENTS RECEIVED FROM FEDERAL AGENCIES U. . DEPARTMENT OF COMMERCE NOAA COASTAl SERVICES CENTER 2234 SOUTH HOBSON AVENUE CHARLESTON, SC 29405-2413 L PAopry of C b OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE OFFICE OF THE ASSISTANT SECRETARY OF DEFENte' WASHINGTON, D.C. 20301 WASHINGTON, D. C. 20301 f ~~~~~~ MANPOWER. VOWER, 817SERVE AFFAIRS LOGFFIRSTI*~CS. AND LOGISTICSLOITS Na. Joellyn ~~~~~~~~~~~~~~~~~~K. 4rhs. .joejL:vn K. MurPhv Direacto, edrly X.grm Divisio Director, Federal Progress Division Ofircetof Coastal Progre Diviaeuei office of Coastal Zone Manaclement Ofi fcastioal Ocanc nd mat!S3Sphti National oceanic and Atmospheri:c Adainistration DeAdminito omratie IP~"'OfCt5Department of Cosuserce atn Rockville, Maryland 20852 Rockville. Marvland 20852 Omar Ms. Murphy# Dear Ms. ZXurphv: 30150 Mnagonen (Cr14)Program~ ~sg~The Massachusetts Coastal Zone management (Cr14) Progra and draft The Masseachusetts Coastal Sun*5 M anagtvemen(M)Pormad dratint Environmental Impact Statement (EIS) have been reviewed within the anvironmental Impact Statement (1)hv enriwdwti heDepartment of Defense in accordance with your memorandum dated Department of Defense An accordance with your Imitrandum dated october 1. 1977. The enclosed comments are recommended for inclusion October 12, 2977. T'he enlsdcmets r eowne nlson in the final edition of the management program and EIS. In the final edition of the management Program enda Zia, We appreciate the opportunity afforded me to augmnt an thi ryt.we appreciate the OPPOrtunitv afforded us to comm~eist ots thi's xePort. sincerely Votira. Sincerely yor.,/.er ~prv. Fl~iaka Deputy Assistant Secretary of Df~ens sinstalains ertand Hofufing (Iner ltose osn)(nstallations and Housing) Enclosure Enclosure Installation County Acreage DETAILED DOD COMIMENTS MASSACHUSETTS DRAFT COASTAL ZONE Camp Edwards Barnstable 10, 689 MANAGEMENT PROGRAM AND DRAFT Nike Boston - 05 Essex 76 ENVIRONMENTAL IMPACT STATEMENT Nike Boston - 15 Essex 6 Nike Providence - 29 Bristol '5 S. Boston Support Activity Suffolk 34 VOL I MDCZMP USARC Fort Rodman Bristol 13 Commentary on Federal Consistency Procedures (Appendix A, page 52) USARD Hingham - Cohasset Plymouth 758 Add the words "to the maximum extent practicable", to the first USARC Quincy Norfolk 1 sentence in order to accurately reflect the requirement of the statute. USARC Roslindale Suffolk 4 Compelling Public Interest (Page 318) It should be made clear that the term "Compelling Public Interest" Statements on excluded Federal lands which appear on pages 26 includes items of national interest and more specifically considerations and c-6 of the program, and page 11-54 in the DEIS should be reworded of the National Defense. to more accurately reflect the Federal Office of Coastal Management's guidance on this matter: "States must exclude from their coastal Federal Licenses or Permits (Page 351) management boundaries those owned, leased, heldin trust or whose The term "applicant" should be defined to exclude Federal Agencies use is otherwise by law subject solely to the discretion of the Federal in accordance with the latest NOAA Federal Consistency regulations Government, its officers or agents. " (15 CFR 923. 33). (paragraph 930. 52). DRAFT ENVIRONMENTAL IMPACT STATEMENT VOL II MDCZMP Summary (Paragraph 2) Introduction Add "To the maximum extent practicable, " to the last sentence Include a short statement covering the exclusion of the small to accurately reflect the requirement of the statute. parcels of Navy owned/controlled land in the Coastal Zone. The properties include Naval Reserve Centers in the Coastal cities and Part I. (Paragraph A-5, page 1-1) Squantum Naval Housing. In addition, Plate 18 should be modified Rewrite first phrase to read "Restrict state and Federal develop- with shading, for instance, to indicate the Naval Air Station, South ment, if practicable, near designated public recreation areas ... Weymouth is Federal land. Part I. (Chapter 2) In footnotes throughout the Chapter change "Policy will be EXCLUDED FEDERAL LANDS applied to Federal Government activities ..." to read "Federal Although Massachusetts expended considerable effort to coordinate government activities will be expected to conform to this policy with Federal agencies during program development, certain Army in accordance with NOAA's Consistency Regulations. " lands which are excluded from the coastal zone should be mapped in Volume 2 of the MCZMP, which provides a detailed site-specific Part II (Chapter 6, paragraph I - National Defense and Aerospace) description of Massachusetts' coastal zone. Army land holdings Replace the phrase "All feasible alternative sites and mitigation adjacent to Massachusetts' coastal zone include: measures ..." with "The reasonable investigation of feasible alternate sites ..." Also, Federal consistency mediation procedures will be "southt", rather than "invoked". ... .-,......... *, . * B DEPARTWI9NT OF HOOLSING AND URBAN DEVELOPMENT WASHINGTON, D. C. 2010 I am enclosing a more detailed compilation of both general and specific 2 0DEC 1977 program concerns which may be useful to the implementation and management of the program. We appreciate the opportunity to comment on the Massachusetts program and look forward to continued coordination during OFFICE OF THE UNDER SECRETARY Ii REPLY REFER TO: its implementation. Sincerely, Honorable Robert Knecht 4 _ Acting Associate Administrator Robert C Embry r. Department of Commerce Assistant Secret National Oceanic and Atmospheric Administration Enclosure Washington, D.C. 20235 Dear Mr. Knecht:; This-Department has reviewed the Massachusetts Coastal Zone Management Program and DEIS, and I offer the following summary of comments-for your consideration. We have no objection to approval by the Secretary of Commerce of the subject document for the purpose of obtaining Department of Commerce funding. However, due to the limited geographic area covered by the coastal area as defined in the MCZMP, there does not exist a sufficient basis to determine that the requirements of the 701 Land' Use Element have been met. The State of Massachusetts should be informed that any such approval of the Massachusetts Coastal Zone Program by the Secretary of Commerce cannot be construed as HUD approval of this document for the purposes of meeting the land use element requirement of the 701 Comprehensi-ve Planning Assistance Program (24 CFR 600.72). HUD determination of approval of the State of Massachusetts land use element shall be in accordance with the procedures established in 24 CFR 600.73. While it is possible that some future housing and community development proposals may be constrained by the MCZMP, we do not expect a substantial reduction in housing and community development activities in the coastal communities as a result of the MCZMP. We reached this conclusion because the coastal zone is defined very narrowly, and should have no affect on opportunities for housing and community development elsewhere in the coastal communities. We would like to cdmmend the Commonwealth's recognition of the signifi- cance of coastal hazards management to a well-formed, comprehensive coastal zone management program. The draft's devotion of an entire sub-chapter to an in-depth discussion of this issue is an exemplary effort which we hope will provide a model to other participants in our national coastal zone management efforts. Comments on Massachusetts Coastal Zone Manage-ent Program and DEIS 4. Networking General Comments The implementation of the CZMP relies heavily on the '"networking" 1. Evaluation System of State and local agencies, and existing State statutes and regulations. However, regulations have yet to be issued for many Although the proposed MCZMP touches on the need for evaluation as of the relevant State statutes. Also, many of the agencies part of program management, program evaluation is not set forth identified have not previously been active in the coastal area. as a major and distinct element. We believe it should be. The For example, regulations have not been issued as yet, according role of the State Executive Office of Environmental Affairs(EOEA) to pages 11-36 to 11-41 of the Draft EIS, for the following: in evaluating the effectiveness of the CZMP implementation should Coastal Wetlands Restriction Program; Inland Wetlands Restriction be highlighted. The evaluation system should identify the state Program; Self-Help Program; and the Scenic Rivers Program: Although agencies to be evaluated, the method by which local decisions the Department of Commerce is willing to accept the MCZMP without would be monitored as they involve the coastal area, and the such regulations in place, stating that the authority still rests criteria to be used. A few test cases should be reviewed in ' with the State through legislation, we suggest that a firm schedule detail each year to determine the effectiveness of the CZMP and be established for the issuance of all necessary regulations. adherence to its policies. The objective of the evaluation system should be to reliably report on the quality of the process being 5. State Severing Priorities undertaken at the state and local levels. Are decisions being made with respect to the location of housing which are consistent It is stated in the MCZMP and the Draft EIS that State sewering with CZMP policies? A checklist might be employed to review priorities already follow the policy of encouraging general decisions against particular CZMP policies to determine which development to locate in existing developed areas and adjacent policies were followed and which were not. The evaluation system lands by using Federal and State investment to provide sewage should help the State to determine the cumulative effect of waste treatment and transportation services. Contrary to this individual decisions made at the local level which may be detrimental statement, the Division of Water Pollution Control of the State to the policies for the coastal area. Water Resources Commission has, and is currently using, a priority rating system for sewer construction grant projects which is determined primarily by type of project. Although there 2. A-95 Review is some provision for supplemental "points" being awarded on the basis of design population served, this is only a secondary We noted that the A-95 review system will be relied on to a consideration and can be outweighed by other use effects. As a substantial degree to screen projects for their potential affect policy therefore, the sewer priority rating system does not on the coastal area. Consideration should be given to assist A-95 really distinguish between effects on existing developed areas and review agencies with respect to coastal concerns by issuing other areas. While some attempts have and are being made to obtain specific guidance materials, such as a checklist or worksheet, modifications in the system by the State, much remains to be done which could be used by reviewers. A CZM project review checklist to revise the "project type" orientation of the decisions so that or worksheet would help assure that certain key concerns were being they will be consistent with overall State growth policy. This, included in project review, and that there would be a more standardized in fact, was recognized by the Governor in the recently released approach which would be easier to monitor and evaluate. The CZMP Growth Policy Report, which directs a specific recommendation, document itself would serve as the general reference source. No. 29, at this very issue. 3. Sanctions and Other Corrective Actions 6. Need For Program Summary The MCZMP does not clearly identify what sanctions or other We have found that large and complex documents, such as the corrective actions would be employed by BOEA with respect to a MCZMP, are not readily usable by local officials in the performance locality or State agency failing to adhere to the coastal of their daily responsibilities. We suggest that a more "readable" management policies. The need for such corrective actions could summary be prepared for general public and local official be envisaged both with respect to initiatives taken by others, consumption. In addition, with respect to specific issues, we such as private developers, or by State agencies and localities as suggest that a question and answer worksheet be prepared and updated part of their own administrative responsibilities. from time to time focusing on typical kinds of questions faced by local officials, i.e., building permits, and a "hot line" be established in the EOEA to respond to local official and public questions. The primary areas in which the proposed coastal policies may 7. Federal Insurarce Research affect HUD supported development activities would be in urban Page 124, paragraphs 1 and 5: For your information, we would areas, especially in or adjacent to the waterfront, where there note that the FIA is carrying out research in two areas discussed may be a competition for uses, and in the lesser developed areas here, the results of which could be helpful to the Commonwealth near urban areas where single family residential construction in administering its. CZMP. In paragraph 1, a market value thres- might be anticipated. However, as pointed out in the Draft EIS, hold for defining "substantial damage" is proposed at 75%. We whether an area othewise meeting the normal conditions of will soon be completing an investigation of various mechanisms development and the coastal policies is used for single family for addressing substantially damaged or improved existing homes, high rise apartments, conmerce or industry will continue for addressing substantially damaged or improved existing to he decided by local governments. structures. Although the FIA relies on a 50% threshold for this purpose, one of the study findings suggests that differences between a 50, n75 ofr 80 threshold are less significant thatn 2. Impacts of Coastal Policies on HUD-Supported Housing and Community between a 50%, 75% or 80% threshold are less significant than could be expected, since, for instance in the case of structures damaged by fire, losses tend to group in a very low range e.g., The State has adopted 38 policies to guide activities on the coast, 5-15% or a very high range 85-100%. 15 of which are said to be enforceable through existing State laws and regulations. The remaining 23 are of an "encouragement" nature. The second area of research, also related to existing structures, With respect to HMUD-supported housing and community development Flood insurancth the factsibil of 1978, as ity of implemended. The description of th activities some policies will have no significant effect and same Flood insurance Act of 1978, as amended. The description of this would apply with or without the MCZMP. Those which may affect issue in paragraph 5, page 124, should be clarified to note that issue in paragraph 5, page 124, should be clarified to note tHUD-supported housing and community development activities, are reliance on this approach can only be made in certain limitedD-supported housing and munty development actvtes, are circumstances as described in the legislation. FIA is currently investigating all aspects of this issue in a comprehensive 18 month study, the results of which are expected by the end of 1978. Please feel free to contact HUD on the specific findings of these studies residential developments inst coastal haand areas, his policy and their applicability to the CZMP's efforts to address existing because of the risk of damage due to possible flooding, because of the risk of damage due to possible flooding, should not constitute prime residential areas. b. Policy 17, "enforceable," prohibits preemption of present proposed maritime-dependent industrial uses in port and harbor program Concerns areas. These areas may also be- attractive for residential or non-industrial community development. Non-maritime development proposals would be permitted in port areas which are not maritime-dependent, providing a conflict does not arise Although the MCZmP proposes priorities for the use of land which seeable maritime-dependent use. The clear intent if implemented would restrict housing development and general of this policy is to give maritime-dependent uses priority types of community development activities in the coastal area it is our general conclusion that the objectives of the proposed over no t e ngage in direct development, conflits and harbor areas. MCZMP are consistent with HUD policies and programs. The overall in proposed uses wh ich may arise would be a subject for policy of the MCZMP is to encourage general development to locate state and local decision-making, with all proposals for in already developed areas or in areas contiguous to them. Other H financialsupport also subject to our own eligibility coastal policies, such as the restriction on development in areas criteria, A-95 and environmental review. There are 13 below mean high tide or in ocean sanctuaries, should have limited porta and over 100 harbors identified in the CrP to which impact on HUD programs in housing or community development. Many this policy applies. MCZMP policies do not change or add to existing development con- straints with which HU D supported development must presently c. Policy 20, "encouragement," supports water front redevelopment conform. MUD supported development is already subject to the and renewal in developed harbors in order to link residential Wetlands Protection Act and the Inland Wetlands Actl HUD regulations neighborhoods and commerial downtown areas with physical and themselves, such as the Minimum Property Standards, which constrain visual areas to the waterfront. Seemingly contrary to Policy development where soil can support limited sewage disposal systems 17, this policy actually encourages housing and community and where sewers are not available; and NEPA for development developmen t activities u n waterfront areas. proposed near recreation sites or designated historical sites if the development would have a nagative impact. 6 The key difference seems to be whether or not a port or harbor area is suitable for industrial or economic maritime- 3. Consistency with the 701 Land Use Element dependent uses. Since the two policies are somewhat contradic- tory, we suggest that their specific intents be clarified with tory, we suggest that their specific intents be clarified with The definition of the coastal area in the CDMP except for Cape further examples of what would or would not be possible under Cod, Nantucket and Martha's Vineyard, is a very limited geographic each. For example, Policy 20 could be addressed to waterfront overage Although the decision was deliberated and based on park and building conversion and re-use, such as Atlantic Coverage. Although the decision was deliberated and based on park and building conversion and teNwtrenuse, such as Atlantic many factors, the result of limiting the coastal zone landward to Avenue in downtown Boston, and the Newburyport renewal project 100 feet inland of a major road, rail or other visible right-of-way, doeS not enable us to make a judgement with respect to its satisfying requirements of the 701 land usa element as provided d. Policy 26, "enforcement," provides for the acquisition and under the HUD-OCZM agreement. The most we can say is that the development of new public areas and facilities for coastal development of new public areas and facilities for coastal general policy of the MCZMP of encouraging development in or adjacent recreational activities. Once sites are acquired for to already developed areas is consistent with the overall objective recreational use they are no longer available for housing or expressed in the Massachusetts Growth Policy RepOrt, City and other community development uses. As with Policy 17, the Town Centers: A Program for Growth, which is expected to be the choice of huses rest with the State and 0localities. Some major document to be submitted in response to the land use element of the sites listed on pages 11-19 and 11-20 of the Draft requirement. This is unlike other coastal zone programs with EIS may already be under consideration for other uses, which we are familiar, which cover all of the political boundaries oof a costal community as in the case of Maine, and communities not adjoining the coast as in the case of New Hampshire. e. Policy 35, "enforcement," seeks to upgrade public infrastruc- ture in existing developed areas, assigning highest priority to infrastructure which meets the needs of urban and community 4. Flood Insurance development centers. This policy affects, for example, sewer and water facilities which may be funded through the CDBG approximately 50-552 for the costs of insurance. program. The overall thrust of the policy is consistent with HuD objectives under the CDBG program of concentrating b. Page 116, paragraph 2, number 5: At this time, FIA's regulations resources for central city and neighborhood revitilization reflect the natural buffering role of dunes in its requirements (24 CFR 1910.3(eJ(8)).as pointed out at page 120, paragraph 2. In addition, if the comment in this section is directed toward f. Policies 36 and 37, "encouragement," affect housing and the "natural buffering capabilities" of coastal wetlands, community development, but are generally consistent with HUD there is not sufficient hard data to support regulation policy of revitalizing existing development centers and of coastal areas to protect such a role if and where it encouraging clustering of new development. exists. FIA is initiating a study to determine whether such a function is carried out by coastal wetlands, g. Policy 38, "encouragement," encourages major development which types of these perform such a role and under what conforming to CZM policies and provides that OCZM will assist circumstances, and how to regulate development to protect developers to reach such conformance. This policy may affect such a function if it is found to exist. particular housing and community development proposals, but relies solely on existing constraints. c. Page 116, paragraph 2, number 6: This statement implies that the purpose of the NFIP flood insurance subsidy is, as stated h. Policies 13 and 15 deal with the visual environment of to sustain development". This is clearly not the case. development in the coastal area. The visual environment is Congress established the subsidy to assure the provision an important but intangible quality, and as such is difficult Congress established th e subsidy to assure the property owner of fload insurance coverage at rates that the property owner to assess in advance with respect to the effect it may have can afford, and in order not to penalize those who had inadver- on HUD-supported housing and community development activities. tently located in flood hazard areas prior to their delineation, or those who were made subject to increased risk as a result of the imprudent construction pracices of others. 7 d. A more basic problem involves point *6 which relates to other sections of the draft as well, notably, the discussion of the role of wetlands as buffers (see comments, above). The discussion in point number 6 is characterized by reliance on generalizations which are either unsupported or which lack necessary and careful qualification. Although it may seem logical to assume that the existence of an insurance subsidy would'produce a bouyant affect on land values, this presupposes a depressing influence from either the delineation of an area as flood-prone, or the implementation of regulatory requirements in such areas. There have been no studies of of the effects of the NFIP's flood insurance practices on property values. The few studies of limited scope which have addressed the effects of regulations of flood-prone areas have generally been unable to identify any affect of such regulations on these values. Thus, the cause and effect relationship outlined here is simplistic and at best only one potential occurrence among a wide range of alternatives affected by many more actors than the FIA alone in its administration of the National Flood Insurance Program. e. Page 122, paragraphs 3 and 4: Concern is previously expressed with the manner in which the draft discusses the relationship between the flood insurance subsidy and property values. However, the basic thrust of this discussion is strongly supported in a recent national policy statement which should be reflected here. In President Carter's Environmental Message of May, 1977, the issues of flood damage reduction, the preservation and restoration of the natural values of flood plains and wetlands, and long and short term and direct and indirect impacts to them are addressed. These issues and the criteria which are set for the federal executive agencies to address them are set out in Executive Orders 11988 and 11990, titled Floodplain Management, and Wetlands Protection, respectively. The mandates of these Orders are very strong and designed to establish the Federal agencies in a leadership role for state and local governments through avoidance of flood plains and wetlands for proposed actions wherever practicable. The Orders can be expected to significantly alter the manner in which Federal agencies carry out proposed actions which could affect these environmentally sensative and often hazardous areas. 2 Department of Energy Page 11-55 of the Draft Environmental Impact Statement for Washington, D.C. 20461 ]Ir 111978 the Massachusetts program lists factors to be considered by EFSC in evaluating the siting of energy facilities. The factors listed do not include economic feasibility. Lowest possible cost to Massachusetts energy consumers is a respon- sibility of EFSC (See Appendix A, page a-19). Economic Mr. Robert W. Knecht feasibility should be added accordingly in the Final Associate Administrator for Environmental Impact Statement as a consideration in evaluating Coastal Zone Management site suitability. National Oceanic and Atmospheric Administration Page 28 of Volume 1 of the coastal program contains a 3300 Whitehaven Street, N.W. statement On the permissible uses of "Significant Resource Washington, D.C. 20235 Areas." The program indicates "underground energy trans- mission lines" as a permissible use. We request clarification Dear Mr. Knecht: on the intended scope of this phrase concerning electric power lines, oil or gas pipelines, and cooling water intake We have reviewed the Massachusetts Coastal Zone Management or discharge pipelines. Program as requested by your letter of October 12, 1977. The program contains the basic authorities and policies Massachusetts has established several areas as "Ocean required to support implementation of a coastal zone manage- Sanctuaries." We believe additional information should be ment (CZM) program. We recommend approval of the program, provided to identify special conditions, if any, which would subject to the condition that certain additional materials affect the authorities of EFSC concerning the regulation of be provided within a set time frame agreeable to the State energy facilities potentially impacting ocean sanctuary as refinements or amendments. Overall, we wish to commend areas. Any such significant conditions should be defined the Commonwealth of Massachusetts for the comprehensive, and explained in amendments to the program. balanced, and well coordinated development of its CZM program. The Georges Bank OCS lease sale area is adjacent to Mass- The program makes it clear that it will be the responsibility achusetts. At one point in the program narrative (Vol. II, of the Energy Facility Siting Council (EFSC), not the CZM p. 160), a CZM Advisory Committee is quoted urging Massachusetts program, to plan and regulate the siting of major energy "to use the CZM plan as a means to establish strong State facilities in the coastal zone. EFSC is expected to discharge regulatory authority over onshore exploration and develop- this responsibility consistent with the energy policies ment support facilities," and "to establish and enforce expressed in the coastal program and a Memorandum of Under- stringent OCS policies." It is not clear from the program, standing between EFSC and the Office of Environmental including the lengthy discussion of OCS development (Vol. I, Affairs (the primary office of responsibility for the p. 247-254), how OCS development is being planned for and coastal program). The statute prescribing EFSC's authorities accommodated. We suggest (per our comments on the proposed and the implementing regulations for siting of energy Program Approval Regulations) a more positive approach to facilities in the coastal zone are not included in the energy planning for OCS development be prepared and submitted program materials submitted for review. This information is as an amendment to the program. essential to full documentation of the energy facility planning and regulatory process required for approval of CZM We suggest updating features on the topographic maps presented programs. We request that the authorities and regulations in Volume 2 of the program. Please note that on plate 27 of of EFSC be provided as program amendments. the Manomet area that the Pilgrim Nuclear Power Plant does not appear. 3 We appreciate this opportunity to comment on the Massachusetts program and look forward to timely review of the suggested amendments to the program. Acting Assistant Secretary Resource Applications United States Department of the Interior OFFICE OF THE SECRFTARY 2 WASHINGTON, D.C. 20240 implementation. The majority of our concerns and recommenda ions are listed by subject in Attachment 1 and the balance by page nu ber in ~DEC 1 9 1977 ~Attachment 2. Mr. Robert Knecht Of the issues raised by our reviewers, concern over the enfo ceability of Off ic e of Coastal Zone Management the MCZMP predominated. The "networking" concept of authori ies brings National Oceanic and Atmospheric Administration a variety of interests into the implementation process. The three U .S. Department of Commerce mechanisms to be used to assure compliance and enforceabili are Page Building No. 1 1) memoranda of understanding (MOU's) between State agencies 2) lead 3300 Whitehaven Street, N.W. agency regulations providing program guidelines; and 3) comp etion and/or Washington, 0. C. 20235 changes to affected agencies' substantive regulations. Dear Mr. Knecht: Each mechanism, however, has serious uncertainties associate with it. The MOU's are thought to be "generally unenforceable" and ar expected The Offices and Bureaus of the Department of the Interior have completed to be "entered into and dissolved according to the needs of ach agency an intensive review of Volumes I and II of the Draft Massachusetts and CZM." The lead agency regulations (known as "21A regula ions") have Coastal Zone Management Program (MCZMP) and the Draft Environmental Impact not yet been approved nor has a date been set for their appr val. Neither Statement (DEIS). have key substantive regulations such as those for the Ocean Sanctuaries and Scenic Rivers programs been developed In draft for revie by Federal We find the MCZMP to be potentially an excellent program. For the most agencies. As acknowledged by the program document these and other part, the policies and procedures are adequately described and comprehensive. substantive regulations are of critical importance to the ma agement of The Department commends the staff of the MCZMP, the members of the Citizen Significant Resource Areas and Areas For Preservation and Re toration, Advisory Committees, and others who helped prepare Volumes I and II. High essential- elements of the coastal management program. quality staff work and a thorough understanding of the substantive issues are reflected in the documents. The Program appears well designed to The CZMA requires that prior to approval the program must be enforceable strengthen the State's ability to both protect its fragile coastline and and have "authorities necessary to implement the program." he regu- to channel economic development potential into existing and somewhat lations (Section 923.42(d)(4)) require that'bach State agenc . . . must depressed port cities. The MCZMP recognizes the fragile and valuable be legally bound to exercise its authority in conformance wi h the State's nature of the coastal environment and seeks to preserve it. coastal policies." If an MOU is used it must "bind the affe ted parties." These requirements are stated in absolute terms, not in term which We would also like to commend the staff of the Office of Coastal Zone allow for dependence on the evolution of authorities after ram approval Management, especially William Matuszeski, for the candor expressed in or for a trial and error testing period to determine if MOU' are enforceable. the alternatives section of the DEIS. Since the DEIS frankly discusses the program's strengths and weaknesses, we have focused attention on the In essence, if a "networking" approach is to be effective, i must provide issues you believe to be most important. as much assurance of adequate authority as a strong comprehe sive coastal While we find the program commendable in many respects, our staff and management act passed by the Legislature and signed by the the Bureaus expressed a large number of specific concerns and developed The Department strongly supports coastal zone management and believes the over one hundred recommendations which we believe would strengthen the State programs must operate from a position of strength to m et the program. Most of these relate to important issues. Several deal with intention of the Coastal Zone Management Act. While early a proval Is specific requirements of the Coastal Zone Management Act and Regulations. desirable in a number of respects, premature approval would lace the We recommend that these be resolved prior to program approval. Others, MCZMP in an unnecessarily vulnerable position during the ear y stages of in our opinion, may be adequately resolved during the first year of program implementation, before adequate enforcement authorities are n place. mr0' z~~~~~~~~~~~l 3 As you know, on December 19, 1977, Deputy Assistant Secretary Heather Ross and members of my staff met with your Northeast Regional Manager and her staff to discuss the issues raised in this letter and some of those in Attachments I and 2. I-e were most pleased to learn of your office's intention to insure that the 21A regulations are to be officially adopted prior to program approval. We believe this will help provide the necessary strength to effectively implement the program. We also were pleased to learn that the key substantive regulations must be in place prior to June 1, 1978. Finally, based on their explanation, we understand the function of the -MOU's and the role of local programs and appreciate your intention to clarify these in the final program description. We feel the meeting was highly productive and look forward to receiving the final program. If you have any questions about our other substantive conmments, please contact Paul Stang or Ted Heintz (343-7258) of our staff. Thank you. ATTACHMENT I in~~~~~~~~~~~~~~~~~~Ceelyomients on the HUZMP 1~~~~~~~~~~~~~~~ ~~~~~~~by Subject Categories La r .Meeot Assistant Secretary -- Policy, Budget and Administration Attachments in support of the program provide grounds for bringing an action to ENFORCEABILITY ensure compliance of networked agencies with the program. It will be sufficient if any of the following can bring suit: the State The Department is seriously concerned that the Massachusetts Coastal Zone agency designated pursuant to subsection 306(c)(5) of the Act, the Management Program does not have adequate authorities, at this time, to State's Attorney General, another State agency, a local government, be enforceable. Our three major concerns are: or a citizen." (emphasis added) (1) the enforceability of the EOEA agencies' Memoranda of However, the MCZMP addresses the status of .the Memoranda of Understanding Understanding (MOU's) with the Secretary of EOEA, (2) the status which have been signed by 5 EOEA Commissioners and by the Energy Facilities of the Chapter 21A Regulation, and (3) the omission from the Siting Council, on page 319, Volume 1: program of draft substantive regulations which are to be promul- gated by EOEA agencies pursuant to applicable existing statutes. "While interagency Memoranda are tought to be generally unenforceable because the Attorney General has never brought suit by one agency We recoammend that OCZM consider delaying "306 approval" or give preliminary against another on the basis of such an agreement, they do serve a approval, in accordance with Section 305(d)(2)(B) of the CZMA, significant role. They embody the spirit of cooperation and joint until such time as: effort fundamental to the success of the CZM Program." (emphasis added). (1) a procedure has been incorporated into the program which provides grounds for bringing an action to ensure compliance of networked The MCZMP appears to rely on the following mechanism to ensure compliance agencies with the MCZMP, (2) the EOEA Chapter 21A regulation is of networked agencies with the program, in accordance with the requirement officially adopted, and (3) the regulations to be promulgated for of the proposed 306 Approval Regulations: the Waterways, Wetland Protection and Ocean Sanctuaries programs have been reviewed by Federal agencies and adopted by the State. "If citizens are not satisfied with any of the administrative avenues open to them for influencing State actions, any ten citizens can sue The basis for our concern over the enforceability of the MCZMP derives in the superior courts concerning any damage to the environment, from statements in the MCZMP and the proposed NOAA Program Approval pursuant to Chapter 214, Section 7A of the General Laws." (Page 366-7, Regulations. The three primary mechanisms for implementing CZM policies Volume 1) are clearly stated in the MCZMP: We are uncertain as to how this provision of the General Laws can be applied "The Coastal Zone Management structure is essentially one where the to the MOU's of the program, if the MOU's are unenforceable. It is recom- line EOEA agencies will be primarily responsible for the implementation mended that these grounds for suit be clearly discussed in terms of the of the CZM policies. This will be accomplished via a Memoranda of proposed Chapter 21A Regulation, the MOU's and governing statutes of EOEA Understanding with the Secretary and appropriate agencies agreeing agencies. to jointly implement the CZM program with the Executive Office and other EOEA agencies, via the regulations promulgated by the Executive The confusion over the statutes of the MOU as an enforceable document is Office adopting the plan as a statement of the State environmental furthered by the statement: policy, and via changes, if necessary, in the regulations of affected agencies." (Page 317, Volume 1; emphasis added) "It is anticipated that these Memos will be entered into, and dissolved, according to the needs of each agency and CZ1 to establish clear MEMORANDA OF UNDERSTANDING (MOV's) procedures and policies for the relevant aspects of each program." (Page 319, Volume 1; emphasis added) The first mechanism for implementing CZM policies is the group of MOU's between the Secretary of EOEA and appropriate EOEA agencies. The proposed It is clear that the MCZMP addresses changes in the MOU's, including CAM program approval regulations promulgated by the Department of Commerce dissolving the MOU's, as minor revisions to the program which would not (15 CFR Part 923; August 29, 1977) identify the requirement for enforceable require the amendment procedure as provided for in the CZMA. We find this MOU's in network programs, in Section 923.42(d)(5): inappropriate and not in compliance with the requirements of NOAA proposed regulations on amendments and refinements. "Interagency agreements (such as memoranda of understanding or agreement) must be binding and enforceable in order to constitute acceptable legal authorities.. Interagency agreements will be con- sidered enforceable if the management program and State authorities 3 4 Chapter 21A Regulation revisions to such rules and regulations which would enhance or facilitate implementation need not be accomplished prior to program The second mechanism for implementing CZM policies is via the Chapter 21A approval. However, where State agencies cannot enforce coastal regulation to be promulgated by the Secretary of the Executive Office of policies without first revising their rules and regulations, then Environmental Affairs. The effect of this regulation once it is promulgated, these revisions must be made prior to progam approval.' emphasis is that: "all EOEA agencies are to carry out the CZM plan in full in granting added) permits, in disbursing funds, or in conducting any kind of activity in the coastal zone" (Page 317-18, Volume 1). However, the proposed NOAA Program In light of the significance of the revised regulations to be promulgated Approval regulations are quite explicit as to the requirements which must by agencies in order to conform to CZM policies, and in light of the be satisfied prior to program approval. These pertain to the enforceability enforceable nature of the revised regulations on agencies, it is our of each agency's conformance to CZM policies in Section 923.42(d)(4): position that these draft regulations should be incorporated into the "Enforceability. Each State agency which exercises statutory authority CP for al review and that 0CZ14 consider nredicatina 306 approval that is to be incorporated into the management program must be legally bound to exercise its authority in conformance with the State's coastal In conclusion, the Department believes that without final approval by the policies. This can be achieved through an executive order or an EOEA Secretary of the 21A Regulation, and without review of draft sub- interagency agreement (including memoranda of understanding or stantive regulations by Federal agencies, in addition to the apparently agreement) provided that such order or agreement binds the affected unenforceable nature of the EOEA agency MOU's, the MCZMP is not enforceable parties to conformance with relevant management program policies." in accordance with the NOAA's proposed Program Approval Regulations. To meet this requirement, the Department believes that the Secretary's 21A Approval under Section 306 of the CZMA, before these requirements are met, regulation must be approved and be enforceable prior to Federal program may subject the MCZMP to criticism and legal challenges which could erode approval, the viability and inhibit the long term effectiveness of CZM in Massachusetts. Regulations of Affected Agencies The third mechanism for implementation of the CZM policies is via changes, where necessary, in the regulations of affected agencies. The importance of these revised and new regulations in implementing the CZM policies is stressed throughout the Porgram. For example, the Waterways Program has no regulations for license and permit activities within DEQE's purview. Therefore, draft regulations are being prepared in order that the Waterways Program will be bound to conform to the provisions of the CZM program. The program recognizes the need for additional substantive regulations and states: "for cases like the Ocean Sanctuaries Program, the Scenic Rivers Program, or in integrating the Colonial Ordinance with the Waterways Program, major efforts by the agencies and CZM will be required." (page 319, Volume 1; emphasi-s added). The importance of these additional regulations is further indicated by the comment: "(these) regulations will discuss- how agencies will conduct their activities in SRA's or APR's" (Page 319, Volume 1). We consider this aspect of conformance of agency regulations to CZM policies as the primary enforceable requirement of the network program. In addition to the previously cited requirements of the proposed 306 Approval Regulations, Section 923.42(d)(7) states: "If networked State agencies can enforce the management program policies at the time of Section 306 approval without first having to revise their operating rules and regulations, then any proppsed '3 6 IMPLEUIWTATION over Comiiiission properties are not addressed in the draft program. We recomnend that the status of the MDC in addition to State review of and In addition to resolution of the general issue of enforceability, discussion authorities over MDC activities, be elucidated in the final MCZMP. in the MCZMP of how enforcement authorities are implemented is recommended. There is no discussion of enforcement capabilities of component programs Another issue relates to coordination during implementation. First we of the MCZMP. Specific enforcement mechanisms and penalties should be would like to indicate that the Department enthusiastically supports explained for the Waterways Program, Wetlands Protection and Restriction joint coordination in the review of proposed disposal projects (page 98, Programs and the Ocean Sanctuaries Program. Volume 1). We further recommend that the Fish andWildlife Service be represented on the Dredge Spoil Task Force in orler to effect early There are also a number of other potential problems which may complicate coordination early in the review process in sele:tihg new sites for upland the implementation of the MCZMP. These are briefly described in the or open ocean disposal of dredged material. following paragraphs. The overall program is weak, however, in its failure to fully address The Waterways Program authorizes the Department of Environmental Quality State and Federal coordination during and after program implementation. Engineering (DEQE) to undertake construction of erosion control projects The Department would appreciate the opportunity to assist the State in and dredging with State funds. This program also has regulatory the development of the 306 work program. Additihnally, the Department jurisdiction over filling, construction of any new structure, dredging recommends that a mechanism be incorporated into the program whereby or removal of sand and vegetation in tidelands, harbors and certain Federal agencies having an interest in the coastal zone could work rivers below the highwater mark. In addition, all land below mean low closely with the State and OCZM in the yearly evaluation of the water is regulated by licensing in DEQE. In view of the program's effectiveness of the program. emphasis on "encouraging" non-structural alternatives to erosion control and in minimizing dredging, we view the functions of DEQE as both a regulatory and construction agency as a potential serious conflict of interest. It is imperative that CZM's consistency review authority and the mediation process for conflicts arising between the CZM agency and DEQE be more clearly stated in the program and be enforceable. It is our position that the MOU with DEQE may not provide adequate inducement for compliance by DEQE to the policies of the program. Furthermore, as indicated above, the MOU may not be enforceable. We view the apparent lUck of biological expertise within DEQE as another serious problem with the regulatory tidelands process. We strongly urge that qualified biologists be included in the permit review process in both the Wetlands Protection and Waterways programs. The authorities and responsible agencies involved in the regulatory functions of the coastal zone are varied and extremely complex. It is therefore recommended that a simplified flow-chart displaying the permit process and responsible agencies, be included in the MCZ4P. Several examples for permits or licenses could be utilized to display this process. Refinements such as these may help expedite implementation. The exemption of the Metropolitan District Commission (MDC) from the provisions of the Wetlands Restriction Act is not explained in the MCZMP, although the Commission exerts considerable influence in coastal areas. For example, we note the Commission's ownership of five islands in Boston Harbor as indicated in the Atlas; however, specific management authorities 7 8 CONFLICT RESOLUTION "numerous adverse impacts will continue to be associated with the siting of major facilities for purposes of. . .transportation. . ." (page VI-1. Pages d-3 to d-5 of Appendix D of Volume I indicate three types of We recognize that major transportation projects will be evaluated in conflicts betweene6xisting municipal zoning and the CZM program. compliance with NEPA and, as proposed in the draft program, will represent This section then goes on to indicate that "Under the CZM program, amendments to the MCZMP. However, we reconmend that this inconsistency be technical assistance will be provided to communities in bringing clarified in the program, especially in light of the confusion over con- local zoning ordinances into conformance with the MCZMP policies. flict resolution procedures with non-EOEA agencies. The document, however, fails to address how conflicts will be resolved if local governments prefere not to accept State technical assistance but prefer to keep their zoning ordinances as they are. The section on Conflict Resolution on page 324 of Volume I further indicates that statements of issues may be developed and public hearings conducted but does not describe how conflicts will be resolved. Reference is made to formal proceedings according to the State Administrative Procedures Act, but these are not elucidated. Furthermore, the mechanism for appeal of EOEA decisions by local governments and interested or affected parties is not adequately described. We therefore recommend that the entire subject of conflict resolutions and mechanisms of appeal be described in sufficient detail to be understood. A substantive example where the MCZMP is seriously deficient in omitting discussion of interagency conflict resolution procedures is in the area of transportation. The MCZMP states that "CZM will work with (the Executive Office of Transportation and Construction) and regional planning agencies funded by EOTC to ensure that CZM policies are carried out by this when their actions would affect the marine environment." (page 95, Volume 1). The program states further that the "coordination (by the Bureau of Transportation, Planning and Development) with local, regional and statewide growth policy; and land use plans is required." (Page 287, Volume 1). The DEIS indicates that "CZM will coordinate with the Federal, State and regional agencies involved in transportation planning to ensure that investments in transportation improvements serve to guide growth in a manner consistent with CZM objectives," (Page 11-29, emphasis added). We are not sure how CZM will ensure compliance with the program's policies, or even whether consistencywith program objectives will be required. In addition, a mediation process should be outlined for conflicts which may arise between EOEA and transportation agencies or other agencies outside of EOEA. A serious discrepancy exists in the program in regard to anticipated impacts from future transportation development. On page 11-29, the DEIS states: "For the most part, the State's transportation network in the coastal zone is virtually complete". The DEIS further states that '5- 9 10 FEDERAL CONSISTENCY consistency determination." The last sentence of section 7.32 (A) should also be changed to indicate that CZM will notify Federal The Federal Consistency sections of the draft MCZMP and DEIS identify agencies of other unlisted Federal activities which, "in the opinion of" the requirements for Federal Consistency determinations. In order for CZM will require a Federal agency consistency determination. As written the concept of Federal consistency to be successful, Federal agencies these sections are not allowable under NOAA regulations. The notification must know precisely with what they must be consistent. The draft procedure and timeframe in Section 7.32 (b) would also be unallowable program identifies the parts of the program with which Federal agencies under NOAA regulations, and should therefore be changed. must be consistent by indicating which of the CZM program policies are enforceable under Massachusetts law. However, we remain concerned It appears that Massachusetts is attempting to apply the section of about the lack of specific state procedures to implement Federal the Federal Consistency regulations pertaining to applicants (15 CFR Consistency once the NOAA Consistency regulations are finalized. 930.50-69) to Federal agencies. These sections conflict with 15 CFR 930.30-45. They should be changed accordingly. For instance, the program fails to identify the procedure which will be followed by the State in reviewing consistency certifications for The section 7.31 list of Federal activities must be considered a those activities in the coastal zone which will necessitate Federal proposal. A Federal/State agreement on the content of the list is licenses or permits. Although the MCZMP makes statements such as recommended by the NOAA regulations. In light of a May 6, 1977 opinion ". . .CZM will use Federal consistency to assure that Federal permits of our Solicitor, we cannot agree that OCS lease sales are subject to or licenses are issued in accordance with the CZM program" (page 351, the consistency requirements. Therefore, mention of lease sales on Vol. 1 ) and "CZM review for consistency is to be based on this pp 358 and a-61 of Vol. I should be delected. We recommend that the MCZMP certification statement" (page 351, Vol. 1), it is not clear what staff contact the National Park Service and the U.S. Fish and Wildlife process will be utilized by the State to insure coordination between the Service to initiate discussion of their activities which may be listed'as State CZM agency and the regulatory EOEA agency. The above statements requiring consistency determination. tend to indicate that CZM is the State agency responsible for review of the consistency certifications. However, this responsibility is not In addition a few other specific changes are recommended. Section 7.34 (A) specifically stated in either the DEIS or the MCZMP in the sections which of Vol. I must conform to the final language of NOAA Regulations address how CZM will become involved in the routine activities of other (15 CFR 930.35). Also Section 7.34(D) cannot require, under NOAA EOEA agencies (page 325, Vol. 1; page 11-42, DEIS). The exclusion of this regulations, the specified information. While this information seems responsibility from this section of the program leads us to questions we for the most part to be reasonable, it must be in the form of a request. previously raised concerning the enforcement and implementation of the We therefore suggest the "shall" be replaced with "should". Lastly, program. The department, therefore, recommends that the final EIS state Section 7.35 (A) must also conform to NOAA regulation. Presently the what agency is responsible for the review of consistency certifications indicated time periods do not. and identify the permit processing procedure which will be utilized by the State to insure the necessary coordination between the EOFA regulatory permitting agency and the State agency responsible for review of consistency certifications. The latter procedure should indicate how a permit or license application would be processed. A flow chart would be extremely beneficial. We find the commentary in the introductory sections (pp a-52-53 of Vol. I) of the Federal Consistency Procedures especially candid and realistic. We commend Massachusetts for acknowledging the trial and error approach which will be necessary as implementation evolves. However, we have some specific concerns with the working of Federal Consistency sections of the EOEA draft CFM regulations (po a 52-65 of Vol. I). We believe that sections 7.31 and 7.32 must be changed to reflect the intent of the CZMA and NOAA regualtions. The first sentence of 7.31 should be changed to read "CZM believes that the following activities will always directly affect the coastal zone and thus require a Federal agency 11 12 LOCAL GOVERNMENT INVOL VlErENT NATIONAL INTEREST Chapter 5 of the DEIS gives a description of financial assistance provided The Depprtment of Interior recognizes its responsibility to provide to local governments through the State CZM program. Also a few general further assistance to Massachusetts in identifying in greater detail statements concerning local governments appeal in the MCZMP (e.g. "CZM the national interest for those projects, activities and resources will not dictate to colmmunitics" - p. 14 of Vol. I). With the exception over which we have jurisdictional authorities. We are presently of these, the documents essentially leave the role of local governments assembling detailed information in a form useful for consideration unaddressed. We are particularly interested in what role is planned for during implementation of the MCZMP. Despite the diversity information local government involvement in Federal consistency determinations. We available, the MCZMP makes a commendable attempt to recognize and are also concerned how national and regional benefits will be considered identify Federal agencies' respective interests in the State's coastal in light of local authorities and programs in the coastal zone. We zone. Table l(pages 346-349, Vol. 1) is particularly well done. recommend that the appropriate section of these volumes be restructured to indicate the degree of local government involvement. Also as indicated Throughout the sections of Vol. I and the DEIS pertaining to the Natinnal in our section on Conflict Resolution, the rights and roles of local Interest, reference is made to "balancing" national interests (p. 345 governments in confllct resolution and appeals should be elucidated. of the MCZMP and pp. 11-55, 56, 59, 61, 62 and 63 of the DEIS). The Department particularly questions the use of the term "balancing" In those discussions relating to resources, energy, and transportation needs (pages 11-55, 11-56, and 11-61. "Balancing" could be a misleading term because it could imply that definitive, quantifiable factors must be weighed. Although economic or development considerations can often be quantified, it is much more difficult to quantify environmental considerations. Historically, decision-makers have often favored economic development considerations, and in many cases, this has occurred at the expense of natural resources. Furthermore, the CZMA does not specify that "balancing" must be the method by which decisions are made. Section 306(c)(8) of the Act utilizes the phrase: "adequate considerations of the national interest." For these reasons, the Department recommends taht the term "balancing" be replaced with the phrase "consider and reconcile." Such a change in the MCZMP would represent an effort to resolve conflicting interests which would make them compatible, if not consistent, with each other. Another concern is the failure of the draft program to address several Fish and Wildlife Service refuges which are located within the State's proposed coastal zone boundary. On Plate 6, Vol. 2, the Thacher Island National Wildlife Refuge is neither labeled on the map nor mentioned in the commentary other than as a "wildlife sanctuary." In addition the comnentary should read "U. S. Fish and Wildlife Service" in lieu of "Federal Division of Fisheries and Wildlife." On page 8, Vol. 2, the commentary on Plum Island should reference the Parker River National Wildlife Refuge by name. On pages 182 and 184, Vol. 2, a description of the Monomoy National Wildlife Refuge would be appreciated. On Page 53, Vol. 2, portions of Morris Island are part of the Monomoy National Wildlife Refuge. Finally, the Nantucket National Wildlife Refuge is neither labeled on Plate 68, nor mentioned in the commentary on page 230, Vol. 2. We request that these corrections be made. j97 13 14 CZrI POLICIES within the coastal zone boundary. We note that Policy 34 addresses the The policies in the proposed regulations to be approved by the Secretary of requirement that development conform to statutes governing inland wetlands the Executive Office of Environmental Affairs appear to provide adequate within the coastal zone. We recommend that a coordination procedure be specificity to ensure predictability of permissible uses. We support the established whereby proposed activities under the Inland Wetlands specific attention in the policies provided to Significant Resource Areas Restriction Program, which are located outside the coastal zone boundary (SRA's) and other environmental resources which fall within our purview. and which would result in direct and significant impacts to "marine" resources, will be reviewed in accordance with MCZMP policies, objectives The first seven policies address the "marine environment" in terms of and regulations by the Commissioner of the Department of Environmental resource areas to be conserved, preserved and protected in addition to Management. protecting water quality, biological productivity and fisheries resources. The "marine environment" is further defined on page 35, Vol. I, to include We recommend that the MCZMP define "marine resources" in the beginning of 20 specific "significant resource areas," and the program states "the the program. We urge that "marine" be clarified to include palustrine and various marine environments comprising the Massachusetts coastal zone estuarine resources, and that freshwater lacustrine habitats be included are. . .salt marshes, barrier beaches, estuaries, salt ponds/coastal in the definition. embayments, open coastal waters and rocky shores." (Page 44, Vol. 1). The Department agrees that these marine environments are within the Concerning the specific policies, the Department offers the following coastal zone and should be under strict management controls; however, recommendations: the coastal zone comprises additional resource areas other than those designated, which we believe should be included in the program. Of Policy I major concern to the Department is that beds of submerged aquatic vegetation, non-vegetated tidal flats, finfish spawning areas, We are concerned that the restrictive use of the term "marine" limits freshwater wetlands, and coastal open freshwater areas are not included those resources which should be addressed within any environmentally in the list of coastal resources and therefore could be outside the sound coastal management program. These concerns were previously purview of the proposed policies. Although the program adequately addressed in this section. documents the significant value of mudflats and eelgrass beds (page 47, Vol. 1), it offers no specific management objectives or policies to We recommend this policy be expanded to specifically address endangered and protect these areas. Open freshwater areas within the coastal zone, threatened species and their associated critical habitats which may be especially on Cape Cod, provide valuable habitat to resident populations designated within the states coastal zone in the future. Missachusetts of waterfowl and anadromous fish species. These areas appear to be should explain how the CZM program will be utilized not only to afford outside the jurisdiction of the Massachusetts Wetlands Protection and protection to endangered and threatened species but should also address what Restriction Acts, as well as the Inland Wetlands Restriction Act. The procedures will be followed by the State to insure that designated uses of deter- Department views this as a serious omission from the program and is mined critical habitat are, in fact, compatible with the species needs. concerned that inadequate management of these areas could lead to Polic 2 significant adverse impacts to these resources in which there is national interest. We view these areas as coastal resources which must The use of the term "Areas for Preservation or Restoration" is be included in the management program. inconsistent with the further permission of uses and activities within these areas. We view the use of "preservation" as inappropriate and The Department is also concerned with the exclusion of freshwater inland suggest it b e replaced with "c onservation." There is confusion in the wetlands from the jurisdiction of MCZMP. Specifically, the program states suggest it be replaced with "conservation. There is confusion in the wetlands from the jurisdiction of M Specifically, the program states discussion of ecological significant Resource Areas and Areas for that "any freshwater inland wetlands will also be restricted (within an Preservation or Restoration as how protection will be afforded for areas APR)" and refers to Policy 2 (page 33, Vol. 1). However, Policy 2 protects outside of the purview of existing statutes (e.g., floodplains, erosion "marine resource areas" and is designed to minimize adverse impacts on "marine productivity." The Inland Wetland Act is not included per se in the program; however, it is indicated that restrictions of the Act are Policy 5 designed to protect anadromous fish. The Department believes that the omission of freshwater wetlands from the authorities of the MCZMP could This policy should be expanded to address adverse impacts to terrestrial result in significant and direct impacts to coastal resources contained resources in the case of upland disposal of dredged material. Policy 7 The Department is concerned that the potential stresses which "extensive and intensive aquaculture" could place on complex ecological systems have not been adequately considered and evaluated in the MCZBIP. In areas it 15 16 COASTAL ZONE BOU14DARY restricted under the Wetlands Restriction Act, it is stated: "the The Department supports the-inclusion of sensitive resource areas (SRA's), excavation and construction of areas for the cultivation and harvesting Cape Cod, and the Islands within the proposed coastal zone boundary. The of shellfish and other marine foods" (page 81, Vol. 1) is an allowable use of major roads, railways and visible right-of-ways as a boundary line use. In addition, to our concern over the Act's blanket approval given will facilitate determinations of actions which are subject to management to "excavation" of restricted wetlands for such purposes, we remain authorities of the Massachusetts Coastal Zone Management Program (iCZMP). concerned about the impacts of aquaculture on coastal resources. However, the Department believes the coastal zone is sufficiently narrow Aquaculture can increase levels of organics in the water which could in several locations to preclude adequate control over stormwater runoff in cause severe algal blooms resulting in a depletion of the available urban areas, buffer areas adjacent to proposed Areas for Preservation or dissolved oxygen. This, in turn, could result in adverse impacts to ura n ar's) and anadropos for reserva tion or coasta prodctivit. In iew o thesepotenial ipactswe fel it.Restoration (APR's) and anadromous fish runs. In addition, we note that coastal productivity. In view of these potential impacts, we feel it there are numerous boundary inconsistencies where tidal wetlands, tidally- is imperative the program include controls over"intensive and extensive influenced waters, scenic viewpoints, and the 100-year floodplain plus the aquatculture" and that the policy make reference to such controls. 100-foot delineation, are outside of the designated boundary. In some areas, the boundary is so narrow that management controls necessary to Policy 8(d) alleviate existing erosion problems may be insufficient. We are also concerned that the program offers no rationale for the exclusion of the This policy should be clarified as to whether or not this authority interior of Cape Ann from the coastal zone, whereas Cape Cod is included will extend to areas outside the coastal zone boundary. in its entirety. Policy 12(b_ The exclusion of major urban areas from the coastal zone is of particular concern to us since it is documented that upland stormwater runoff can This policy should be expanded to include adverse effects at the project adversely affect water quality and thereby indirectly adversely affect site proper. public fish and wildlife resources. Therefore, we recommend that the program provide the criteria used to delineate the coastal boundary in Policy 18 urban areas and that the boundary be realigned such that adverse effects of upland stnorwater runoff may be minimized. The Department views the 4 criteria which will be used by the State in approving proposals for "deepening or expansion of channels and mooring In situations where the proposed coastal zone boundary also acts as a or turn-around basins beyond authorized or existing depths or size" boundary for an APR (e.g. refer to Plates 1, 3, 4, 24; Vol. 2), it is (page 179, Vol. 1) as being seriously deficient in not providing for apparent that adequate buffer areas are not provided to ensure maximum protection of ecological resources. Although the program states: "...in protection of the resources within the APR. We recommend that the boundary both port areas and developed harbors, CZM will...work actively with be extended to adequately encompass a minimum buffer area adjacent to concerned agencies to arrive at environmentally responsible dredge and designated APR's in order t o en su r e protection of these resources. dredge disposal solutions" (page 180, Vol. 1.), we believe it is imperative that ecological criteria also be incorporated into the existing criteria There are also several locations where tidal wetlands (e.g., Plates 5 and 8; for determining which funding proposals to approve. Vol. 2); scenic viewpoints (e.g., Plates 1 and 15; Vol. 2); an estuary (e.g., Plate 1; Vol. 2), and the 100-year floodplain plus 100-foot delineation (e.g., Plates 6, 8, 15; Vol. 2), are not included in the proposed coastal zone boundary delineation. A complete listing of these inconsistencies is included in Attachment 2. The draft MCZMP offers no rationale for these inconsistencies. In light of these examples, it appears that the boundary, as proposed, excludes sensitive resource areas from the coastal zone which should be managed in the same manner as similar resources found within the boundary. We recomnend that the proposed coastal zone boundary be modified to incorporate these areas of concern. 17 18 In several erosion areas (e.g., Plates 7 and.27; Vol. 2), the boundary is waters, associated wetlands or any combinations thereof. IWe recommend the immediately adjacent to the shoreline. The Department believes that this program clarify the applicable authorities and the geographical extent of narrow coastal zone boundary in erosion areas significantly weakens the management protection afforded anadromous fish and their habitat. positive aspects and the effectiveness of the program. By endorsing a boundary immediately adjacent to the shoreline, the MCZMP excludes Another area of concern to the Department is the proposed narrow inland consideration of erosion due to factors other than wake or wave erosion. boundary delineation for the Merrimack River. Volume 2, Plate 1 indicates Erosion problems in coastal areas may be the result of inadequate upland the use of this river by anadromous fish including American shad, striped stormwater runoff management or inadequate grading for bank stabilization. bass, alewife and blueback-herring. Section 304(1) of the CZMA defines Thus, the proposed boundary in such areas could preclude implementation the term "coastal zone" accordingly: ". .. the coastal waters . . . and of non-structural alternatives to alleviate erosion problems. The the adjacent shorelands, strongly influenced by each other ...." This Department, therefore, recommends that the proposed boundary be realigned section of the Act further states: "The zone extends inland from the inland in erosion prone areas such that applicable management authorities shorelines only to the extent necessary to control shorelands, the use of within the MCZMP will apply. which have a direct and significant impact on coastal waters" (emphasis added). The Department finds that the draft program actually provides The Department iseriously concerned that activities occurring within the reasons which justify the inclusion of the Merrimack River, inland at interior of Cape Ann will have direct and significant impacts on the designated least to a point above the Artichoke River, within the State's proposed coastal zone of the Cape. We note the existence of numerous freshwater coastal zone boundary. Plate 1 of the Atlas (Volume 2 of the program) wetlands (e.g. swamps and ponds) in addition to significant drainages on indicates the inland extent of the "estuary" portion of the river and the Cape Ann which are excluded from the proposed coastal zone boundary. anadromous fish runs, yet the proposed boundary is located down river Alterations to these inland habitat types or uses in and adjacent to these near Salisbury Point. areas could result in direct and significant impacts to coastal resources. We support the inclusion of Cape Cod and the offshore Islands in the In addition, it is the position of the Department that coastal freshwater proposed boundary. Our rationale for this support is that inclusion insures wetlands (i.e., bog, swamps, marshes) are significant coastal resources, that uses in and adjacent to freshwater wetlands, which could significantly and as such, should be included within the management authority of the impact the coastal zone, can be controlled by appropriate land use manage- MCZMP. A discussion of the need for specific policies and coordination ment and the Massachusetts Coastal Zone Management Program authorities. procedures as regards major activities in and adjacent to freshwater We therefore recommend the draft MCZMP similarly include all of Cape Ann wetlands within MCZMP is included in our comments on CZM Policies. The within its coastal zone boundary. basis for the concern is that the Department views the proposed coastal zone boundary as being inadequate in affording consideration of uses in Finally, the MCZMP does not adequately clarify the protection afforded and adjacent to coastal freshwater wetlands, the alteration of which anadromous fish runs. The MCZMP states: "anadromous fish runs are could have serious direct and significant impacts on water quality, included in the coastal zone to the fresh water breeding area, if such "marine" productivity, and coastal wetlands. area is within a coastal town" (page 26, Vol. 2). The Plates in Volume 2 graphically depict anadromous runs with a green arrow. References are made to protection of anadromous fish runs as Significant Resource Areas (SRA's) under the provisions of the Inland Wetlands Restriction Act (page 89, Vol. 1). However, the DEIS states: "the Massachusetts program document mentions a few Ecological SRA's that will not be managed through either the Restriction or the Protection Program, such as some anadromous fish runs . . ." (page 11-3, DEIS). We specifically request that the Office of Coastal Zone Management (OCZM) and Massachusetts explain this inconsistency between the draft EIS and the program. The Fish and Wildlife Service is mandated by the Anadromous Fish Conservation Act to protect anadromous fish resources as a resource of national benefit and concern. The confusion regarding protection of or consideration for anadromous fish as addressed in the MCZMP is of serious concern since it is not clear whether the resources to be protected are limited to the fish, ao 19 20 SIGNIFICANT RESOURCE AREAS (SRA's) The discussion of APR's and Areas of Critical Environmental Concern (ACEC) is not clearly developed so as to differentiate between the two The discussion of Significant Resource Areas (SRA's) and Areas for designations. It is clear on page 11-40 of the DEIS that the designations Preservation or Restoration (APR's) is clearly written and attempts to refer to State regulations for ACEC's and Federal consistency implications differentiate applicable authorities and permissible uses within these in APR's. We recommend that this distihation be clearly stated in the areas. However, we have several concerns regarding the limitation of body of the MCZMP. authority in preserving areas in addition to the need for including additional areas of significant coastal resource value. The Department finds that management for restoring areas in APR's is not addressed in the MCZMP. It is recommended that guidelines, criteria and/or The Department recognizes the need for establishing areas of significant regulations be developed which address restoration of SRA's which are value to migratory waterfowl species as refuges for either preservation or within designated APR's. As a minimum, the program should include policies for conservation. The most restrictive authority governing wetland use in mitigation or compensation in-kind of unavoidable losses of resources Massachusetts appears to be vested in the Wetlands Restriction Act. This resulting from allowable activities within designated APR's. Act provides for high priority uses including "conservation, shellfish harvesting, outdoor recreation and other non-intense uses;" in addition As a final point of concern, we note that offshore shellfish beds, as to allowing underground energy transmission lines, maintenance of indicated on page 54, Vol. 1, are entirely within designated ocean existing roads and boat channels, and the construction of wharves, piers, sanctuaries, as depicted on page 77, Vol. 1. In accordance with boat shelters, floats and catwalks. Because APR's are comprised of various Massachusetts statutes regulating permissible uses within ocean SRA's which are protected by existing authorities, it is apparent that sanctuaries, the program states: ". . . in general, such activities as areas which warrant preservation status are not provided for within the removal of any sand, gravel or minerals, any dumping, or any waste discharge provisions of the Wetlands Restriction Act. Therefore, we recommend that are prohibited... ." (page 86, Vol. 1). We note that 5 sites for disposal additional regulations pursuant to the Wetlands Restriction Act be promul- of clean dredged material have been recommended within the approved ocean gated such that areas can be designated for preservation based on significant sanctuary designations (page 73, Vol. 1). In addition, the recommended ecological values whereby no uses would be permitted which would in any disposal site in Cape Cod Bay is located directly over a shellfish bed as way diminish the values for which the area was originally established. indicated on page 54. The Department views this inconsistency as a serious problem and recommends that the disposal area in Cape Cod Bay be relocated Our second major concern with the discussion of SRA's is the need to include and that regulations governing uses within ocean sanctuaries be modified to coastal freshwater marshes, coastal open freshwater, beds of submerged include the dumping of clean dredged material. We also recommend that the aquatic vegetation, non-vegetated tidal flats and critical habitat designated "Foul Area," a disposal site for polluted spoils, be indicated on Figure 5 for endangered species (if applicable in future). The bases for inclusion (page 73, Vol. 1). are discussed under our Coastal Zone Boundary and Policies sections. The Department requests that the criteria utilized by the Secretary of the Executive Office of Environmental Affairs (EOEA) in conducting the initial evaluation of nominations for APR's be included in the proposed regulations (page a-45). It is not clear on what basis the Secretary can reject a. nomination for an APR. In addition, State guidelines which are utilized by local conservation commissions in conditioning construction pursuant to the Wetlands Protection Act (page 29, Vol. 1), should be included. It is difficult to determine the adequacy of protection afforded to wetlands under this Act without inclusion of either the State guidelines or the Wetlands Protection Act in the MCZMP. The terms "maritime--dependent" and "waterfront-related uses" must be defined in the glossary. In addition, we request that "port areas" as defined on page 36, Vol. 1, be graphically displayed on a map. An additional suggestion is to include reference to the water treatment capacities of saltmarshes in the discussion on pages 44-46, Vol. 1. This would strengthen the need to protect saltmarshes for water quality consider- ations. al 21 22 HISTORIC ANtiD CULIUPAL RESOURCES The Department of Interior has specific responsibilities with regard to the implementation of national policies for the identification and The MCZMP has focused attention on historic and cultural resources. tection of historic resources. We would welcome the opportunity to We commlend the State for their efforts. We, however, have some concern p ro about apparent lilnitations in the nature of this consideration. These maydi c sthmwh ashuesanmebrofhetfffteOfcef leadtou weaknercnt sisatiens in the mechanatr for their prondertion. ThesemaCoastal Zone Management. The Office ofArcheology and Historic Preservation of the National Park Service will contact you in the near future about 1. Our Concern mainly relates to Policy (14). arranging a meeting for this purpose. a) Historic resources are treated only as part of the visual environment (although they are recognized, at least in one place, as being of value for more than simply their visual attractiveness). This treatment ignores most of the important roles that such properties play in the life of the community, State and Nation, including their potential for yielding important information about the history and prehistory of an area, and reduces them to visually attractive parts of the landscape. Such treatment is not in conformity with Federal laws, policies, and regulations in this area. b) In the proposed plan, historic resources are limited to "designated" and "renistered" sites and districts. This assumes that all significant prop- erties have already been identified--an assumption that is not even true of above ground structures and is certainly not true in regard to archeological sites. In this way, the plan does not afford any protection to as yet unrecognized properties which may be as important to the locality, State and nation as any that are now officially listed. 2. The narrowness of the definition in Policy. (14) may lead to weaknesses in implementation of the plan in regard to historic resources. To correct these weaknesses, the plan should provide for an ongoing process for ident- ification and evaluation (inventory) in the coastal zone to discover and protect as yet unrecognized, but important, historic resources. This process should be developed in close cooperation with the State Historic Preservation Officer (SHPO) and should be coordinated with the State Historic Preservation Plan. (In passing, we note that the SHPO's office is mentioned in the section of the document which discusses implementation of Policy (14), but there is no indication of how the SHPO was involved in the preparation or review of the document.) Until comprehensive surveys have been completed, the plan should provide mechanisms to guarantee that care is taken to prevent unintentional adverse effects on as yet unrecognized historic resources. Since the language of the plan is actually weaker in regard to historic resources than is the wording of either the Massachusetts Environmental Policy Act or pertinent Federal laws and regulations, it may mislead users to believe that they have fulfilled their historic preservation responsi- bilities when, in reality, they have not. 23 24 MINING ArID MINERALS The MCZIIP should also consider how quickly signs of such mining heal, and the fact that fishing goes on adjacent to large offshore sand and While we believe that the MCZMP is comnendable in many of its substantive gravel mining in such areas as the Engli'sh Channel and North Sea. aspects, attention to mining and mineral processing industries is inappropri- ately light. Our specific concerns are as follows. In Chapter 2 of the DEIS, beginning on page 11-7 under "Coastal Policies," the draft statement whould specifically address onshore mining and the Pages 254-256 of Volume I address potential Narragansett Basin coal transportation, processing, and use of minerals and mineral products. development. Onshore mining of other minerals should receive equal consideration since they are also important to the States economy. On page 11-39 of the DEIS, item 13 refers to the State Division of Mineral Resources, yet the organization chart on page 11-43 includes no such The section on Mt. Hope Bay should include a discussion of Narragansett agency. This needs to be cleared up because those seeking mineral Basin coal in the area. (See Volume II, pp 111-114). exploration licenses must know the State agency involved. On page 155 of Volume II the second paragraph states that: Beginning on page 11-53 of the DEIS, the draft statement discusses "national interests." We have two major concerns regarding this discussion. "Representatives of the commercial fishing industry on Cape Cod First, item 14 on page 11-63 states that ". . .federal agencies will be stress that the fishery cannot tolerate removal of bottom material, offered opportunities at public hearings on off-shore leases in . . . . These representatives further emphasized that onshore Massachusetts waters to voice national interest concerns." The State has support facilities associated with sand and gravel mining a moratorium on any new permits for sand and gravelextraction (item 13 on should not be sited in the coastal zone." (emphasis added) page 11-39). Therefore, public hearings for offshore leases will not take place until Massachusetts lifts the moratorium, a condition the draft Because of their work-related experience, the commercial fishing industry statement fails to address. Second, "national interest" items must also representatives must have some basis for fearing removal of "bottom material." include onshore minerals and associated processing, handling, and trans- However, the second statement regarding onshore support facilities seems to portation facilities. lie outside the immediate and direct concern of the fisheries industry if such facilities are or can be used in conjunction with sand and gravel The section on probably impacts ot the proposed action beginning on page III-1 operations that are not in commercial fishing areas. We recommend, there- of the DEIS fails to assess MCZMP impacts on mineral producers, processors, fore, that the permissibility of onshore support facilities for mineral transporters, and consumers. Further, it fails to consider the possible extraction be addressed in the MCZMP. environmental effects resulting from longer haulage of minerals due to MCZMP restrictions on mining. On page 199 of Volume II under "Policy Applications, Marine Environments," column 2, paragraph 3, the text reads: The first sentence on page V-1 of the DEIS states that "approval of the Massachusetts Coastal Zone Management Program will not in itself lead to "island harbors often require maintenance dredging. Productive the loss of resources that a site specific project would." Neither marine habitats are often located in and around the harbors. There Massachusetts nor the Department of Commerce has presented a satisfactory has also been an increase in concern for diminished shellfish summation of those mineral resources lost to development because of MCZMP productivity as a result of gradual shallowing in some of the island's land entry restrictions. Only with such an inventory will we know what tidal and barrier beach ponds. Therefore, technical help for proper mineral resources the program has irreversibly or irretrievably committed. dredging and the handling of dredge spoil would be of important assistance. ...." We recommend that the above deficiencies be resolved prior to program approval. The Department would be pleased to work with the State to find This statement seems to contradict the concern (discussed above) of an acceptable resolution. representatives of the commercial fishing industry. The text should reconcile these differences. Except for mention of how the price of sand and gravel has risen in Boston, the MCZMP fails to evaluate what mining or mineral products mean to Massachusetts' economy. Additionally, the draft program fails to show how many acres of sea bottom a gravel dredge might disturb annually compared to the total coastal sea area. a3 25 26 DRAFT ENVIRONMENTAL IMPACT STATEMENT RECREATION Since Department concerns and recommendations regarding the pr posed Recreation has received program consideration equal to all other land action have been fully addressed previously in this attachment we are uses. A summary of findings related to Recreation (p. 191-203) together with limiting our comments in this section to the adequacy of the D ft EIS seven policy statements and program recommendations. Primary concern of in complying with NEPA. Other suggested specific modification which the ICZ1IP is "to increase and enhance public use of the Massachusetts shore- serve to strengthen the DEIS are included in Attachment 2. line while improving existing facilities and minimizing future conflicts, overutilization and environmental impacts. The plan is to improve to the overutilization and environmental impacts. The plan is to improve After a thorough review, we find the subject document to be cl early transportation and access; to acquire new sites in recreation poor areas; written and that a full disclosure has been made of alternativo s to the to expand suitable existing sites through small acquisitions or encouraging Management program and a description of the proposed action. comend the staff of Office of Coastal Zone Management, espec iay William Matuszeski, on the candor of the DEIS. We believe it represents the best Massachusetts' Department of Environmental Management (DEM) is the agency effort to date of the seven ETS's on CZM programs which we hae reviewed. responsible for preparation and maintenance of the Statewide Comprehensive However, we find that the discussion of environmental impacts is Outdoor Recreation Plan (SCORP). DEM has reviewed previous drafts of the inappropriately brief. In most instances, effects are describ only in MCZM Irogram. The MCZM Program incorporates both the SCORP data base and general types. No analysis is given of the potential or proble location, demand methodologies and endorses the SCORP priorities by giving high areal extent or magnitude of effects on resources in the ten coastal regions. priority for both public beach acquisition and open s pace/recreation While we acknowledge that the program, at this stage, doesn't lend itself development in urban areas, to precision in discussing site specific impacts, it could qua tify and be more specific on likely impacts. We believe that the MCZMP is compatible and supportive of the outdoor recreational responsibilities of the Department. We commend the State on the recognition and attention given to recreational aspects of coastal zone management. ATTACIHlENT 2 Additional Specific Coi:;ments and Reco:mmended Changes The following are additional comments and recommendations listed by page number. Some relate to issues discussed in Attachment 1. Volume I Page 23: The "Visual Environment" heading should be changed to "Historic, Cultural, Visual, and Aesthetic Environment", since historic properties are important to State citizens for reasons other than and in addition to their visual attractiveness. Policy (14) should be expanded as follows, "Review developments proposed near designated or registered historic districts or sites, or districts or sites eligible for such deIgsnation . . ."and ATTACHMENT 2 "Encourage use of resource inventories, local zoning .... Additional Specific Page by Page Comments Page 26: The coastal zone definition itself has no reference to natural land forms or ecosystems for the landward boundary. Further and Recommended Changes discussion indicates that the "major road, rail, or other visible right-of-way" was/were chosen because they were to the MCZMP and DEIS inland of various biophysical areas. Such a vital facet of the determination of the zone should be included in the definition. Page 27: In the "Overview of What Can Occur in the Coastal Zone," Section (c) listing the conditions under which development will be permitted should be revised to read as follows, "near recreation sites or designated historic sites or sites eligible for designation if the development would have a negative impact." Pages 31-32: In "Remainder of the Coastal Zone," (2) Protection of Beach Recreation and Historic Sites," the second sentence should be revised as follows, "The Massachusetts Environmental Policy Act and Federal laws and procedures for the protection of historic sites or districts will be principal management measures used to minimize such conflicts," and the following should be added to the list of "relevant policies": "--conduct inventories to identify such resources in the Coastal Zone Policy 14)." Page 35: Whenever species are referred to, include both the scientific and common names. The list should include mudflats and finfish spawning areas as separate resource areas. 2 3 Page 35.d: This section would more appropriately be shown as follows: Such projects can have profound effects on wetlands and their Tidal marshes exemption should be adequately justified. i. Saltmarsh - note that high marshes are not flooded Pages 86-87: Permits for Filling in Navigab:e Waters: All phases of the seasonally but predictably at high tides during full moons Corps program are now in effect. which are also known as "spring" tides. Other species present The involvement of the Fish and Wildlife Service via the Fish and Wildlife Coordination Act should also be discussed in this section. 2. Brackish marshes. 3. Coastal fresh marshes - these are affected by tidal action �~ Page 87: Permits for Obstructions or Alterations in Navigable Waters of 3Coastal freh a s - these are aected by tidal actthe United States: See above comments. but the water is not saline. Page 36.h, Line 6: More emphasis should be given to other forms of Page 93: Dartment of Environmental Quality Engineering: Is there any Page 36.h, Line 6: More emphasis should be given to other forms of life supported in coastal embayments, for example, juvenile biological expertise represented on the staff? finfish. migratory and non-migratory birds, and small Page 96: Disposal Sites and Methods: Why should in-harbor sites be favored over open ocean sites? Page 36.m: .. Wildlife can be a significant part of a view. The word Page 101: United States Fish and Wildlife Service: Change "Bureau" to "coast" itself brings to mind gulls, terns, migratory "Service. waterfowl, etc. Page 36.r: This subsection should be revised to read as follows: Page 119, Policy (8): If a house is destroyed in the coastal zone by flood, erosion, etc., will it be permitted to be rebuilt in the same "individual sites of historic, cultural, visual, or aesthetic location? importance: includes man-made sites of historic, archeological, architectural, or cultural value listed in or eligible for Page 131ff: The chapter heading should be revised to be "Historic, Cultural, inclusion in the National Register . . . Visual, and Aesthetic Environment," in order that archeological sites or above ground historic and cultural properties with minimal Page 37.t: Reference should be made to hunting and fishing In the "visual" qualities be afforded requisite protection in the planning coastal area. process. Pages 58-60: Discussion of the effect of inland sewage treatment Page 139: The heading "Man-Made Features" should include "Features of facilities on estuaries is needed. Historical, Archeological, Architectural, or Cultural Importance." Page 63: The role of land run off in introducing oil into the marine Substantive discu n under this hea ding should include recognition environment is understated. The appropriate sentences should be inventories of above- and below- round cultural resources whose inventories of above- and below-ground cultural resources whose significance or existence has not previously been recognized." Mention should be made that "Coordination with the State Historic Page 71, Paragraph 3: One of the areas of severe adverse effects from Mention shoul d be made that " Coordi nation with the State istoric dredging would be in fish spawning sites. Preservation Officer and the Advisory Council on Historic Preservation is mandatory for adequate recognition of such Page 72, Paragraph 3: It appears that the "easiest way out" was used to cultural properties and for mitigation of adverse impacts on choose spoil sites. The paragraph is not clear on the subject such properties," and that, "Any development of a handbook of of the discussites.on: The pareviousan drremph sis not ar oithes further guidelines for dealing with such resources should be of the discussion: previous and current dump sites or sites undertaken in consultation with the State Historic Preservation proposed for use under CZM. Officer." Page 84: Coastal Wetlands Restriction Program: The restrictions do notation of affect mosquito-control and other State Reclamation Board projects. the Coastal Zone Management (CZM) plan should be revised as follows. 4 5 "Effects on significant Historic, Cultural, Visual and Aesthetic Page 348: In "Table I, Summary of Most Applicable CZM Policy Conditions Elements." Substantively, this section should address how this and Findings," State and Federal actions should be extended to inventory is to be compiled and whether it is identical to the "respect the preservation intent of lawfully designated historic "CZM Inventory of Scenic Resources Inventory" mentioned below districts or sites, and districts or sites eligible for such on the same page. The need for ongoing survey and inventory designation." efforts and for coordination with the State Historic Preservation Officer should be mentioned here. If this is the Scenic Resources Page 350: Change item (1) to read Federal licenses and permits except Inventory, it should be stated that it will include (1) properties as listed in (2) below. Add a new (2) which reads "Federal included in the State Survey; (2) properties determined eligible licenses and permits for activities described in detail in for listing in the National Register of Historic Places and Outer Continental Shelf exploration and development plans." (3) properties designated by local groups such as historic district commissions. Page 355: "Permit for approval of platform installations" is one of the items included in the immediately preceding part and therefore Pages 149-151: The section on Policy (14) should be revised to provide should not be duplicated. for review of developments proposed near districts or sites eligible for designation or registration as historic as well as Page 358: Omit the second line which pertains to lease sales. those already so designated. The need for adequate, on-going inventory efforts done in consultation with the State Historic Page 362: Under Part IV, section 3, "Staff Assistance," the category Preservation Office could be reiterated here. "i. historic properties (coordinated with the Massachusetts Historical Commission (State Historic Preservation Officer))" Page 152: In the "Implementation" section following discussion of should be added. Massachusetts Environmental Policy Act (MEPA) and Federal preservation' laws and procedures it should be noted that, neither Page a-3: The meaning of word "consistency" in the second line is unclear. MEPA nor Federal laws and procedures can be maximally effective Does this mean Federal Consistency? Are there two boundaries? unless early and ongoing inventories of both above-and-below Would the words "To be exact" be more accurate than "For ground historic and cultural sites are conducted. Such Consistency"? inventories are required in areas of Federal agency project jurisdiction. Page a-31: Under section 5.3 in number 14, review of developments should be extended to include those proposed near historic sites or Page 228: The first sentence in the fourth paragraph on this page should districts eligible for designation or registration. be changed to reflect that "coastal areas may be affected by oil and gas exploration and production on the roughly one million Page a-33: The section for DOI must be corrected. Please contact the acres of land in the North Atlantic Outer Continental Shelf (OCS) Department for the correct wording. being considered by the Department of the Interior for lease sale in 1978." Page a-43: Section 6.44(n) listing areas of critical environmental concern should be revised to refer to, "individual sites of historic, Also in second sentence in fifth paragraph, change "possible" cultural, visual, and aesthetic importance," which are "eligible to "feasible." for inclusion in," as well as actually listed in, the National Register of Historic Places. Page 267: Omit item (1) at the top of the page. Insert the words "functionally dependent" before the word "on-shore" in line 25. Page a-56: Section 7.15(g) is incomprehen-_.le. Please clarify it. Page 275: In the second paragraph of "General Development and Public Page c-13: Is the EFSC/CZM MOU legally oinding? Investment: Summary of Findings," State management should be addressed "(c) when a proposed project would adversely impact Page d-6: The State Historic Preservation Plan should be included in the a designated historic site, or a district or site eligible for list of State Agency Plans with which the CZM program is to be such designation . .." coordinated. 6 7 Plate 16: Portions of the 100-year floodplain are excluded. VOLUME II Plate 18: Portions of the 100-year floodplain are excluded. Page ii: Resource LMaps. As mentioned previously, the Significant Resource Area list does not include mudflats, finfish spawning Plate 23: Portions of the 100-year floodplain are excluded. Provide areas, and fresh and brackish wetland affecting saltwater buffer for proposed APR's. wetlands. It should. Plates 24 and 25: Page vi: The heading "Visual Environment" should be changed to "Historic, Portions of the 100-year floodplain appear to be excluded. Cultural, Visual, and Aesthetic Environment" and Policy (14) Provide buffer for proposed APR's. thereunder should: (1) extend review to development proposed near historic sites Plate 26: Portions of the 100-year floodplain are excluded. or districts eligible for designation or registration as such; (2) include encouragement of the use of resource inventories: Plate 27: Portions of the 100-year are excluded. Provide greater buffer (3) include notice of the need to protect archeological sites or for areas of erosion. above ground historic resources whose "visual" significance may be relatively minimal, but which are significant for other reasons. Plates 28 and 42: Provide buffer for proposed APR's. Page 1: The CZ Boundary should include all of the Merrimack River estuary and related wetlands. Plate 29: Portions of the 100-year floodplain appear to be excluded. Include the scenic viewpoint in Newbury within the Boundary. Plate 30: Portions of the 100-year floodplain appear to be excluded. The Boundary should include buffer areas for the proposed APR's indicated. Plate 32: Portions of the 100-year floodplain appear to be excluded. Plate 3: Provide buffer for APR's. Include the scenic viewpoint in Rowley. Plate 34: Provide buffer for proposed APR's. Portions of the 100-year flood- plain are excluded. Plate 4: Is all of the 100-year floodplain included? Provide buffer for proposed APR's. Plate 35: Portions of the 100-year floodplain are excluded. Plate 5: Why is a marsh within the 100-year floodplain excluded? Plate 38: Portions of the 100-year folldplain are excluded. Plate 6: See comments for Plate 5. Plate 41: Portions of the 100-year floodpalin are excluded. Plates 7 and 9: Portions of the 100-year floodplain appear to be excluded. There is concern that the Boundary comes very close to erosion areas. Such areas should have a good buffer area which the existing Boundary does not provide. Plate 8: Portions of the 100-year floodplain are excluded. Pages 49: Note that the Metropolitan District Commission Is shown as owning five islands in Boston Harbor and yet is exempted from the Wetlands Restriction Act. Plates 10 and 13: Portions of the 100-year floodplain appear to be excluded. Plate 15: Portions of the 100-year floodplain are excluded. agencies outside of the Executive Office of Environmental Affairs? DEIS For example, what if the Departme:nt of rublic Worl:s has a disagreement with CZ1? Please clarify. 11-2: We recommend that the list of Significant Resource Areas include "Historic and Cultural Resources" as a fourth category. This 5a: CZM should be notified of all hearings involving the Coastal Zone, category should then also be added to page 11-4, as subcategory "d," not just those conducted byEOEA agencies. as follows: "d. Significant Resource Areas (Historic and Cultural): These are 11-50: We recommend that "protection of historic and cultural resources" districts, sites, buildings, structures, and objects significant on a be included in the list of eligible categories for technical local, State, or national level in American history, architecture, assistance. archeology, or culture." 11-55: Change the fourth line to read "has drawn the following conclusions." 11-4: Insert the word "substantially" before conflict in line 27. Change "Balancing" to "Considering and Reconciling" in line 35 and in line 4 on p. 11-56. Change "possible" to "practicable" in line 43. 11-5: Item 4.b should note that Federal legislation protects buildings, structures, and objects as well as sites and districts. We 11-63: Item II, Historic Sites and Districts, reflects lack of necessary co- recommend that all of these types of historic resources be mentioned ordination with the State Historic Preservation Officer. There is no here. mention of the State Historic Preservation Plan (although an analogous document, the State Comprehensive Outdoor Recreation Plan 11-11: Line eightshould read ". .. off-shore sand and gravel . . .." is mentioned under recreation), of the need to coordinate protection of historic resources with the State Historic Preservation Officer and 11-13: We recommiend that the commentary on Policy (14) recognize all with the Advisory Council on Historic Preservation, and of the need types of historic resources, per the preceding comment, and that to establish a systematic process for identification of historic and it include resources eligible for inclusion in the National Register cultural resources in the coastal zone as a part of the ongoing program as well as those formally listed. This section should also note and prior to issuance of permits for land-disturbing activities. that additional historic resources may be designated in the future. 111-2: Consideration should be given to listing migratory waterfowl 11-20: Policy (27), Paragraph 1, Line 3: Is the correct word "litigation" separately rather than possibly by implication under saltmarshes, or "mitigation"? beaches, dunes, and barrier beaches. 11-36: The percent of the coastline under Restriction is unclear. Please clarify. Paragraph 6, Line 6: The sentence should state that the spoil may destroy benthic organisms and fish eggs. 11-36-41: We recommend that two cdumns be added to the charts: "Principal State Agency" and "Enforcement Penalities." 111-2-2: Th e su mmary of environmental impac ts should, at the very least, mention potential impact on historic resources. 11-38.5: Include the legislation recodifying the five existing laws in the FEIS. 111-4, Paragraph 1, Lines 3-4: The environmental impacts may be negative as well as positive. 11-38.7: No principal State agency is stated; it should be. 1138.7 No principal State agency is stated; itshould be. 111-4: The section entitled "New Development Impacts" should recognize the 11-41.20: The "framework. . .for coordinating DWPC, DAHM, DMF, CZM review. . ." potential for new development to affect as-yet unidentified historic should be included in the FEIS. resources, including archeological sites. 11-42-49: We are concerned that there is no mention of coordination with the 111-4, Paragraph 5: As stated in the DEIS, it appears that doly thlee Massachusetts State Historic Preservation Officer. Discussion of the types of controls are on lands suitable for development. No mention need for such coordination is included in our comments on the is made of the Fish and Wildlife Coordination Act, Endangered Species management program. Act, and Federal Water Pollution Control Act and Amendments. 11-44-46.B:There is no mention of the Metropolitan District Commission, its IV-3, Paragraph 3: The drafts of all the regulations should be part of the responsibilities, and its role in the CZM; there should be. FEIS. 11-47.2: What kind of conflict resolution is available between one or more IV-3, Paragraph 4, Line 18: How are the programs enforceable? act l0 ADORES ONLY THE DIRECTOR, 'fOI1,AND WIOLIlRE SERVICE United States I)epartment of the Interior IV-6.4, Paragiraph 1, Lines 9-10: Wie feel that. the boundary does hlave FISH AND WI)I Il."E S'"RVIC(:E problems. See our coianents on the Atlas.)N. .. 2 IV-10.4, Paragraph 3: The adoption of new regulations and procedures is significant and therefore the draft regulations should be in the FEIS. In Reply Refer to: FWS/EC NOV 2 8 ,i? Ms. Kathryn Cousins Regional Manager, North Atlantic Region Office of Coastal Zone Management, NOAA 3300 Whitehaven St., N. W. Washington, DC 20235 Dear Ms. Cousins: Please find a copy of our brochure entitled "National Wildlife Refuges-National Fish Hatcheries in Northeast Region 5" enclosed for your use. We found in reviewing the final draft Massachusetts Coastal Zone Management (CZM) Program that two National Wildlife Refuges had been omitted from the Resource Atlas. We hope this information will be helpful to you in your efforts with other states in the Northeast. Sincerely, 0 Deputy Ansocj0iat Director Enclosure ,oSUo10o jd FEDERAL ENERGY REGULATORY COMMISSION WASHINGTON. 0. C. 20426 Comments by Federal Energy Regulatory Commission Staff on the Massachusetts Coastal Zone Management Program and Draft Environmental Impact Statement NOV 1 7 977 At the outset the staff was impressed with the quality and excellent balance in the consideration and evaluation Mr. Robert W1. Knecht given to energy and environmental interests in the coastal Associate Administrator for zone. Coastal Zone Management National Oceanic and Atmospheric All references to the Federal Power Commission (FPC) Administration should be deleted. On October 1, 1977, the Department of 3300 Whitehaven Street, N.W. Energy (DOE) and the Federal Energy Regulatory Commission Washington, D.C. 20235 (FERC) succeeded the functions of FPC. At this time the functional responsibilities of DOE and FERC have not been Dear !dr. Knecht: finally formalized. In addition to its vested statutory functions, FERC will be delegated and assigned additional Transmitted herewith are the Federal Energy Regulatory responsibilities at the discretion of the Secretary. Commission's (FERC's) staff comments on the Massachusetts However, the former FPC jurisdiction over exports and Coastal Zone Management Program/Draft Environmental Impact imports of natural gas has been transferred to the DOE under Statement. Section 402(f) of the Department of Energy Organization Act. The FERC staff was greatly impressed with the quality of Gas Facilities; the program and the documents submitted for review. I believe you will find their review comments helpful in preparation The discussion in the second paragraph on page 239 of the final documents. indicates that siting a LNG facility inland is technically feasible. It also should be mentioned that the maximum Sincerely, feasible length of a cryogenic pipeline is approximately 2.5 miles, due to heat gain from friction and outside sources. Therefore technological and monetary constraints are limit- ing factors in siting LNG facilities inland. Charles B. Curtis Chairman Federal Licenses or Permits Enclosure The first paragraph in this section on page 350 in- dicates that applicants for Federal licenses or permits must cc: first obtain a local or State permit. This is not always Honorable Charles Warren the case. At the FERC, applications may be processed Ms. Evelyn F. Murphy simultaneously with the State. On page 351, the procedures seem to indicate that approval of the CZMP will have some effect on the timing of Federal license or permit processing. In fact, however, the State cannot dictate when Federal processing will begin, whether a public notice will be issued, or whether joint 2 - , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,�~~~~~,(~ ~ REGION I Federal and State public hearings will be held. It is J.F. KENNEDY FEDERAL BUILDING. BOSTON, MASSACIUSETIS 02203 recommended that if the Executive Office of Environmental Affairs wishes to promote these procedures, that it enter into a memorandum of understanding with any willing Federal agency. Otherwise, a blanket statement that the procedures described on page 351 will be put into effect is incorrect. December 13, 1977 Implementation During the November briefing held at NOAA a Massachusetts Office of Coastal Zone Management CZMP representative explained that after program approval, National Oceanic and Atmospheric Administration regulations will be formulated to tie 20 existing Commonwealth Room 3280 Statues into a working program. Those regulations will be 3300 Whitehaven Street, NW reviewed by NOAA only, as to their consistency with the future Washington, D.C. 20235 approved CZMP. It is believed that NOAA's interpretation of the future approved plan will probably be acceptable to the FERC. ATTENTION: Ms. Kathryn Cousins However, if there happens to be any differences or problems with the implementation phase of this program, the FERC, as Dear Ms. Cousins: well as other Federal agencies, should be invited to provide comments during the annual performance review (Sec. 312 of We have reviewed the Massachusetts Coastal Zone Management Program and the CZM Act). Draft Environmental Impact Statement to serve as an application for Fed- eral management grants under Section 306 of the Coastal Zone Management As a general rule, perhaps, Federal agency partici- Act (CZM). pation in the annual performance review of all approved plans should be encouraged by NOAA to insure protection of We support approval of the application for a management grant under Section the national interest. (This was also recommended in our 306 and vigorous implementation of the program. The program provides the comments on Section 923.91 Review of Performance, of the framework for drawing into focus the various State, local, and Federal tools Program Approval Regulations.) to guide growth in an orderly manner and to protect Massachusetts' coastal environment, DEIS We applaud the application of 35 specific policy statements to the coast- line on the detailed maps in the Atlas. Notably, the policies were tailored Page 11-1 makes reference to a map which was apparently to specific coastal regions through citizen advisory committees for ten omitted. - subareas of the Massachusetts coast. We strongly support full exercise of the Secretary of Envitonmental Affairs (OEA) authority to adopt Rules and Regulations to draw togetheirher own powers and the planning, technical assistance, financial and regulatory authorities of the 'State agencies to implement the policy statements.' TEhe draft'Rules and Regulations pull together the Secretary's powers to administer a' state- wide CZM program. They empower her to establish a coordinating Coastal Zone Management Office, to adopt the Coastal Zone Management Program, to �,� .......- . ...... ...... ...... ..... draw upon constituent State agencies and to resolve conflicts. Memos of understanding outline relationships with the State Energy Facilities Siting ....- ' " i.....-...... e . . . ....' . .. Council and with the OEA line agencies. A memo of understanding with the State- Secretary of Transportation and Construction would also be helpful. . . c ~ . ~ ~~3 Ms. Kathryn Cousins Page Two Ms. Kathryn Cousins December 13, 1977 Page Three December 13, 1977 The effectiveness of "networking" depends on how well the Secretary and the line agencies make it work. We urge the Secretary to assume active leadership to implement promptly this network of diverse agencies, powers 28) and its implementation (p.294). Add sections on State Implementation and regulations. She can document priorities, augment funding and commit Plans (SIP) and areawide 208 nonpoint source control programs on page line agencies to schedules for implementing the policies in each subarea. 294 and in tabulation of authorities (p.354 and EIS,p.11-41). The Secretary can use her powers and CZM funds to initiate the program Second, discuss the significance of increased hydrocarbon emissions and promptly: to designate the APR's, to accelerate the wetlands restriction oxidant levels (pp.223,234 and 247). It is likely that the entire State of program in APR's, to prohibit major public facilities and energy siting Massachusetts will be declared a non-attainment area for oxidants. Thus, in APR's, and to apply the Massachusetts Environmental Policy Act more any new source of hydrocarbons proposing to locate here may be required by rigorously in the APR's. State public investment policy can, as proposed, the Clean Air Act Ammendments of 1977 to offset its emission by reducing become a creative tool to guide the location and timing of roads, waste- emissions elsewhere in the area. water treatment facilities and other community facilities to support land and water uses appropriate to the coastal zone. Port and other maritime Third, and foremost, document the procedures to meet environmental standards development are encouraged at suitable coastal sites, while energy facil- at specific points, such as the following: ities that do not require coastal sites are encouraged to locate inland. Conflict resolution - State categorically that the Secretary will Incidentally, we would like to suggest that although Massachusetts may use her conflict resolution powers to assure that decisions under not have the authority to carry out certain policies, such as policies the CZM program do, in fact, as a minimum, meet both the air and 30, 31, and 32, without an asterisk (*) in the EIS, Federal law can be water standards. The statement about the use of conflict resolution used to implement them (e.g., NEPA and Clean Air Act). powers to protect air quality (p.334, bottom) can be clarified to express this as a non-negotiable constraint. (Section 307 (f)). Examples of how the "networking" will be used to handle a range of repre- sentative situations facing one or more of the ten coastal subareas would Water quality - Outline how the program will incorporate and imple- be helpful. This will tighten up the networking procedures. Examples ment the recommendations of the State and areawide 208 water quality would include: public beach acquisition, fish and wildlife habitat pro- management programs. These will include "Best Management Practices", tection, a wastewater treatment plant, a resort or housing subdivision subsurface disposal regulations, and local land use policies. Add a highway, a port and a power plant or oil refinery. implementation of "Best Management Practices" and other proposed solutions under the Division of Water Pollution Control on page 335. Under Section 307 (f) of CZM, the CZM program must document the mechanism whereby decisions under the program will meet the air and water quality Air quality - Discuss specifically in the Implementation steps how standards as a non-negotiable constraint. This documentation could be provisions of the Clean Air Act, as recently amended, for reviewing strengthened through a discussion of how these standards will be met in SIP's and transportation plans will be built into the CZM decision- Part III, "Policies" and Part IV, '"anagment" (especially Policies 3, 4, making process. These provisions include consistency with the State 28, 29, 30, 31, 32, 33 and 34). Then, summarize succinctly the key tools Implementation Plans (SIP) for air quality, especially the following by which the program will incorporate air and water standards in the EIS requirements: section on "National Interest" (item 6, p.11-62). - "consistency" review of Transportation plans by metropolitan plan- First, the standards embrace all sources of air and water pollution, in- ning organizations (co-terminous with Regional Planning and 208 eluding nonpoint sources of water pollution and indirect or mobile sources agencies in Massachusetts) (Section 174 and 176 of Clean Air Act of air pollution. The program addresses only point sources. Expand dis- Ammendments of 1977). cushions of air and water quality to cover not only point or stationary sources, but also nonpoint or indirect sources. These can equally lead to - prevention of significant deterioration (Section 127) standards violation. Specify how the CZM program will incorporate the plans, programs and measures to reduce or prevent pollution from these . - non-attainment areas (Sections 103 and 129) sources. (e.g. Transportation plans, future Indirect Source regulations (air), "Best Management Practices" (water) and State/local land use - visibility protection (Section 128) policies to prevent future pollution. Mention nonpoint sources of air and water pollution in development Policy 34 (page 293 and EIS poll- - consistency of wastewater treatment construction grants with SIP's, Ms. Kathryn Cousins Page Four Ms. Kathryn Cousins December 13, 1977 Page Five December 13, 1977 including secondary growth impact (Section 306) - Federal facilities conformance with SIP's (now subject to State We appreciate the opportunity to participate in the development of the enforcement) (Section 116). Massachusetts CZM program and to review the program and EIS. The enclosed comments by our air quality program elaborate on the relation- Sincerely yours, ships between air quality and CZM. The CZM program has strong appeal in the mutually supporting proposals to protect overlapping critical resource areas, ecosystems, water and Rebecca Hanmer air quality. The program could well emphasize this. Prevention of Deputy Regional Administrator significant deterioration of air quality and nondegradation of water quality complement and support Massachusetts' proposed Water Quality cc: Evelyn Murphy, Secretary, Commonwealth of Massachusetts, Office of Standards nondegradation policy to protect National and State Resource Environmental Affairs Waters. This can be documented and expanded to cover additional waters Carol Dennis-Office of Federal Activities, Headquarters in CZM Policy 3. Enclosed is a statement on National and State Resource enclosures Waters which we have prepared. The accompanying EIS summarizes succinctly the policies, implementation tools and their impact on the environment. It discusses the Federal and State alternatives to approval and funding of the proposed State CZM pro- gram at this time. The underlying issue in the evaluation of the Federal alternatives is whether to defer.approval: until the program is further developed; until APR's are designated and until proposed-Rules and Regulations are officially adopted. Prompt action on these steps is, in- deed, paramount to the program's effectiveness in protecting the'coastal environment. Yet, the OCZM and the State make a strong case for adoption now to help muster the resources to do these things and to begin imple- mentation. We concur that adoption now would yield environmental benefits that out- weigh the risks. At the same time, we recommend that OCZM approve and fund the program only after a firm schedule for completing these steps has been developed and agreed to. This would extend the provision already outlined that APR's will be designated within a year of program approval. Based on our working with the Massachusetts CZM program and review of the program and EIS, we rate the EIS as LO - Lack of Objections and Category I - Adequate. An explanation of our rating system is enclosed. We request that the final program and EIS present a schedule for completing the imple- .menting rules, regulations and APR designations, and further documentation requested on meeting air and water quality standards. EXPLA.ITJU ON OF FPA PATIi:G Environmental Imepact of the Action LO -- Lack of Objections lr,- %a' zIon 4f EPA has no objections to the proposed action as described An thre draft environ- **j'r'~~~~ .~~ ~~, mental impact statement; or suggests only minor changes in the proposed action. ER -- Environmental Reservations 'fil fcllcz:: -n ~~' EPA has reservations concerning the environmental effects of certain aspects of . , Crtcra ren drZ'; fro thc utlzc yevr~ the proposed action. EPA believes that further 5tudy of suggested alternatives "Frtioree;~c ti"', 01 f ocrc ~ Od n!ndd o or modifications is req~zired and has asked the originating federal agency to c~c.:j~i~.Srcc~fic acjtio-al Criteria reassess these aspects. nl:~I bc c~Or"iecrra icea otrtr Statcs or re-Z:Lono Os Appropriate. 'tato crnd uctjopal rccnotco .soe couId :Lr.c~lde the follo_�~ EU -- Environmentally Unsatisfactory 1. t-noc within ratiar.,_l 1,. ctt rf EPA believes that the proposed action is unsatisfactory because of its poten- refI'l ,"ue. tially harmful effect on the environment. Furthermore, the Agency believes that 2. vo.ters tlr pro-;J'10 ~ ibi the potential safeguards which might be utilized may not adequately protect the or ezd~.3rcj u'u 1"~a o Ietfa tictcnci environment from hazords arising from this. action. The Agency recommends that alternatives to the action be analyzed further (including the possibility of no U~~~cra doei~~~~~~otcd ~~~~ ~~ action at all). rIvcrs emactdule.t I-t.o ."or~.O State I'Md CO3 Sccrtic 4. ttcr fl~;�~ trc~ dc ~oc~2Store or ?General t;i1acrnc_,o a.rcO~ Adequacy of the Impact Statement 5. Ccrtvnm tzOtcre; t:itleio State or F.,Iozal Forosts, Irncudi,r' rneccagoy1-- Adequate end ~Oe~c~n cre~s XI, IX n IV (rccPcct~vQ1Y-' itcn-cive, c:'crlodd bac'i=-':!try recrcetice). 'The draft environmental impact statement sets forth the environmental impact of 6. Qc',- A (pceccj the proposed project or action as well as alternatives reasonably available to x~~r~~te~~t~~d) cupplies. ~~~~the project or action. 7. l ties S~padfrdc~~,e "Proe-Mvatfo,n or rertoratien" Category 2 -- Insufficient Information S.~~~~~~~ ~ ~ ~~ (t.~ Vnet1'ore EPA believes that the draft environmental impact statement does not contain 8. Oter necre l~h~fn t c' tto tbkt Pre of 1'ric'u ceetomlo sufficient information to as-;ess. fully, the environmental impact of the proposed ~~~C~~~~rr1~~~~~ rccvL'tl~acre. project or action. lbwever, from the Information submitted, the Agency is able to make a preliminary determination of the impact on the environment. FPA has requested that the originator provide the information that was not included in the draft environmental impact statement. Category 3 -- Inadequate EPA believes that the draft environmental impact statement does not adequately assess the environmental impact of the proposed project or action, or that the statement inadequately analyzes reasonably availabl~! alternatives. The Agency has-requested more information and analysis concerning the potential environmental hazards and has asked that substantial revision tie made to thelimpact statement. If a draft environmental impact stato'ment is assigned a Category 3, no rating will be rnadn of tire prnjcct for action; sinice . h'.sis does not generally exist on which to make such a detrrmiriation. UNITED STATCS Eh'VDON5ENTAL 11ROTECTI1)N AGENCY PATE; v,~~~~~~~crmber 12, 1977 l~~~~~~~~~i~e w.11ld also lilco to note tI,".t tile C,!2' propr5a5 dOn-s flt 11550 a strong .-,UCJEC~ ~ ~ ~ ~ ~~~~~~~~~~~~~~~~~~i'~retto r iinz fnr offectir.,; th-ose Wijectives. Ve hnvk' d~~~~~~~~~~~. ~~~~~~~~~~reror'-mendrd to tili "Tansachiunetts Dcpartrent (if rr~vironr.icntal. Quality Fngink-rrirm that they adopt an "Indirect Source Ileview' regullation to FROM: Donald C. 13iitc, Chief prevent construction of trip gcncrating~ facilities whtich would violate ebile source Emissions Section apibinit air quality standards. 1.10 suggest.th~at the flfficesof CZ1 work with DLQ1Z and the txansportation planning agencies to develop reg~ulations TO, 1.r. Irartlott A. iaueu, Jr., Chief to meet the cors'.on objectives of all three pro'rams. 1,nvironwental Studies Additional coielnints are as follows: Vince t.s co;.rientcd on thle Preliminary 1lassacilusetts Coastal Zone 1. Althou-_h thle CZ31 pro,-,ram makes reference. to rweting ambient air 'Ianagemcnt Program last Decenber, the Congress has passed amendmentsqaltanemsintnarthtltirpishsisoy to thke Clcan Air Act thich should be considered and incorporated in applicable to stationery sources. Perhiapo a s oalsction sum- thle final Program. Transportation plans and programs have been aitiip both stationery and moabile source air pollution require- required hy Section 109(j) of the Federal-Aid Highway Act for thle past ments could be added for clarification. several -roars to be consistent w-ith tile state air Inplementation plan (SIP). ,Pctlon 176(c) of tise Amendments parallels this requirement 2. Tile listing of Federal Licenses ald Permits does not include the and furthery maiccs it thle affirmative responsibility of the head of the annual certification by Fil'~: and U7ITA of the transportation planning, metropolitan planning organization designated for each urban area to program. Although not a license, R~jr se, without this federal ar~ule Lovpliance vithi this requirement. Additionally, areas not c r i i a i nn eea oe a eue oipeetaytas attaining national a-mbient air quality standards for automotive related p o rtication pofdra ojeycanb sdto.mlmn ayta air pollutants are to develop transportation measures which will achieve prainpoet invcrmental reductions of enissions. T'he Act recommnends that the 111`O 3. Also missing from the list are permits issued by the air programs be designated as the lead agency for developing these emission reduction under the "Prevention of Significant 'Deterioration Program-. strategies. B'ecause many of tile policies established In the Coastal Zone hlamagcment programl vill have a direct impact an the transportation 4. Wh was the Ihassachusetts Air Implementation Plan omitted from the netlwork and rec-ulting changes made to the network will have to bel i t o s ae enypn? developed and iemplemented consistently with the SIP, this interrelation-lito aeagnypas ship should be explained. ~~~~~~~~~~~5. Wa also think it would be appropriate to include either a letter of Apart frm the rgulatot~ requirment forconsistncy witbfederalsupport ;rom, or a formal agreement withl the Executive Office of regulations, ire believe that the potential for the two programs to inter- Tasc~'to n osrcin -let to promote thteir mutual objectives should not be overlooked. For instanlc,Policy 21 is stated as "Improve public access to coastal recreation facilities, and alleviate auto traffic and parking problems throug!h improvements in public trainsportation." While meeting tile goal of thle CZA program to better accommodate recreational demand, the goals of tile air quality planners are also met: localized violations of carbon rponoside witl be Improved and, to some extent, reduced travel by automobile wrill reduce hydrocarbon emissions. Similarly, Policies 36 and 37 are to encourage revitalization of existing development centers and to promote clustering of newr growth. Thle result would be that better public transportation could be provided to meet the needs of tile ceuitthus reducing; travel Ind air pollution a~t thle same timqe. Ie think tile relitiorship) rMong tile CZ'I transplortatiou an1d air quality prograns ins far too important to Ignore. UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE 'P.O. Box 2890 CashinR~o.1, b2c. 0eise 20013 Mr. Robert W. Knecht 2 NOV 2I9 1917 Overall, the CZM program displays the people's concerns and recommen- dations for improving coastal resources for the benefit of the State as well as the Nation. The Department of Agriculture appreciates the opportunity to review these reports. Wewill support the Massachusetts Mr. Robert W. Knecht CZM program through our services at both State and local levels. Assistant Administrator for Coastal Zone Management Sincerely, National Oceanic and Atmospheric Administration 3300 Whitehaven Street, NW. Washington, D.C. 20235 Dear Mr. Knecht: R. . avis *'�u Ad inistraor The Massachusetts Coastal Zone Management (CZM) Program Report and accompanying Draft Environmental Impact Statement have been reviewed cc: within the Department of Agriculture. The following comments M. Rupert Cutler, Assistant Secretary for Conservation, represent the combined views of agencies in the Department. Research and Education John R. McGuire, Chief, Forest Service The coastal zone, as defined by Massachusetts for the purposes of this management program, does not appear to include significant agricultural or forestry resources. Because it Is built from existing authorities and legislation, the program does not appear to otherwise affect USDA programs. It is important to note, however, that cranberry bogs are unique farm- land, according to the Soil Conservation Service criteria for prime and unique farmland, and deserve special notice. Many of the bogs occur in the coastal zone. Massachusetts may want to mark these unique farmlands on the coastal zone map. .These bogs should not be overlooked since Massachusetts is a major producer of cranberries. According to Agricultural Statistics 1976, over the past few years Massachusetts has harvested about 40 percent of this country's cranberries. One other State produces about the same proportion, while three States grow the remaining one-fifth. Because Massachusetts accounts for a significant proportion of this crop, it may be in the commonwealth's interest to regard these unique areas as a special coastal resource and maintain the vitality of the cranberry industry. To the extent that these bogs are located within the coastal zone, it is in the national interest to give them special consideration. 37 DEPARTMENT OF THE NAVY COMMANDANT, FOURTH NAVAL DISTRICT PHILADO-LPHIA PA. 1o112 N45:RME:mms N45:RME:mms 1977 In Chapter Six, page 11-54 covers National Defense and Aerospace. In 2 DEC 197 the second paragraph instead of "...all feasible alternative sites and mitigation measures are..." we would like to see the sentence read: "...the reasonable investigation of feasible alternative sites...", Also, federal consistency mediation procedures will be "sought" and Office of Coastal Zone Management not "invoked", in that such procedures are voluntary for both parties. National Oceanic and Atmospheric Administration Room 3280 Again, thank you for giving us the opportunity to comment on the State of 3300 Whitehaven Street, N.W. Massachusetts Coastal Zone Management Draft Environmental Impact Statement and Washington, DC 20235 if there are any questions, please do not hestitate to contact us. Attn: Ms. Kathryn Cousins: Sincerely, Dear Ms. Cousins: i !} Thank you for forwarding a copy of the State of Massachusetts Coastal R. M. ENGLE Management Draft Environmental Impact Statement for our review and CDR CEC USN consideration. Comments on the Massachusetts Coastal Zone Management Deputy District Civil Engineer. Program consisting of volumes 1 and 2 have been previously provided directly to the state, however, if you desire, copies of such comments can be provided. Copy to: Executive Office of Environmental Affairs The Brief Description of Action on the first page of the summary should Commonwealth of Massachusetts be modified to required that Federal actions be consistent to the 100 Cambridge Street maximum attempt practicable with the program. Boston, Massachusetts 02202 Similarly, in paragraph A-5, which indicates the restriction of CNO (OP-44) Washington, DC Federal developments, the words "if practicable" should be inserted between developments and near on the first line. On page 11-1 the coastal zone is defined as the seaward limit of the State's territorial sea. The present territorial seaward limit (now three miles) does not create any problems. However, should the territorial limit be extended by some other independent action, it could create some problems in the Navy's offshore/ocean operating areas. Therefore, the term "territorial limit" should be avoided and specific limits set so any subsequent separate action on the boundary for the territorial sea limit does not affect the coastal zone management boundaries auto- matically. High priority uses of open ocean waters are discussed on page 11-2. Other high priority uses of ocean waters should include marine transporta- tion and National Defense activities. Throughout Chapter Two there are various policy footnotes. We feel that it would be clarified if it were changed to read: "Federal Government activities will be expected to conform to this policy in accordance with NOAA's consistency regulations." DEPARTMENT OF TRANSPORTATION REGIONAL REPRESENTATIVE OF THE SECRETARY CAMBRIDGE, MASSACHUSETTS 02421 1. Federal Highway Administration. December 6, 1977. A. On pages 11-29, in the section Transportation Projects, first paragraph, sewage treatment facility planning is referred to as an aspect Mr. Robert Knecht of transportation planning. In the interest of logical organization, we Aseociate Administrator topic would be more appropriate in the section Wastewater Office of Coastal Zone Management Treatment Facilities and Collection Systems, on pages 11-31. 3300 Whitehaven Street, N.W. Washington, D.C; 20235 B. We suggest that the final environmental impact statement discuss the effect of noise on activities and cmpatible land users in the coastal Dear Mr. Knecht: zone. This important aspect apparently has been overlooked in the draft HIS. In my capacity as Acting Secretarial Representative for the Department of Transportation in the First Federal Region, I am forwarding herewith my review of the Massachusetts Coastal Zone Management Plan and its Environmental Impact Statement. The Plan was presented for review to each DOT agency conducting operations in the First Federal Region. Where the Plan and/or Environmental Impact Statement warranted comments, they are attached as enclosures under the appropriate agency heading. The Plan is extensive and shows great imagination and foresight. I am sure Massachusetts' comprehensive treatment of her shoreline environment will help insure its continuation as a state resource. Sincerely, W. S. SCHWOB Rear Admiral, U. S. Coast Guard Acting Secretarial Representative, Region I II. Federal Aviation Administration. III. U. S. Coast Guard. A. Comments on the Draft EIS. A. In general, there do not exist present or long-term requirements that would hamper the Coast Guard's mission. However, there is concern that 1. The term "port" should include airports as Significant Resource the State has not been specific as to whether it will accept the Coast Guard's Areas (Economic). It is unclear whether this is the intent of the position that the Coast Guard will make the final determination as to whether CZM Plan or DEIS. they are being consistent, "to the maximum extent practicable", with the State plan. 2. Federal procedures for considering the environmental effect of airport-related coastal zone development are already sufficiently B. The Massachusetts plan does not make reference to the Coast Guard's refined with regard to parklands, wetlands, and historical areas. issuance of site specific permits for private aids to navigation (14 USC 83). Additionally, the A-95 process can serve as an effective means of According to the language of the plan, Massachusetts does not intend to require identifying environmental issues relative to proposed airport any consistency determination prior to the issuance of such permits by the development. We feel that the DEIS should consider the environmental Coast Guard. protection which existing mechanisms such as these afford. C. Massachusetts' CZM Program does define the Coastal Zone boundary 3. The CZM Plan and DEIS point out that development of existing and specifically excludes land owned by the Federal government (though the transportation facilities, within existing bounds, is encouraged. quest$.:. remains as to whether future acquisitions are also exempt). Arguably, We feel that this policy can lead to responsible development within therefore, all Coast Guard land has been reflected as being excluded although the coastal zone and see no major conflict within existing federal not specifically identified by individual parcel. The seaward limit is defined airport plans for development planned under the Airport Development as three miles in the Plan. Although no reference is made to a potential Aid Program. future change in the Massachusetts definition of its seaward boundary, the regulations (15 CFR 923) indicate that a ruling on new boundaries cannot be made in advance pending the specific terms of any statutory change in territorial sea limits. D. Regarding permissible land and water uses, the plan has identified the permissible as well as restricted uses. There were no military uses noted that were specifically prohibited. Recognizing the national interests, the Massachusetts program excludes Federally-owned or leased lands and facilities. Regarding new facilities, the Massachusetts program will strive to insure that all feasible alternative sites and mitigation measures are explored by the Federal agency involved with the Plan so that conformance, to the maximum extent practicable, is reached. E. There are areas of particular concern that should be reviewed on a continual basis to determine acceptability from an operations standpoint. Specifically, all Federal actions requiring a State permit that have an adverse impact on recreational facilities as listed in the plan will be deemed inconsistent with the CZM Program and conditioned or denied. Decisions about what can and cannot accur in the coastal zone will still be made by local governments. The CZM will deem inconsistent any Federally-funded or licensed project which, after review and consultation with the Massachusetts Historical Commission, is considered harmful to the historic qualities of designated historic districts or sites. A sampling of the historic districts and/or sites designated in the Plan in which there are Coast Guard properties and/or operating areas includes: Nantucket: Nantucket Historic District (entire island); Sandwich: Sandwich Historic District and Falmouth: Falmouth Historic District (7 areas). Coast Guard activity should be acceptable and continue uninterrupted. While A10 DEPARTMENT OF THE ARMY 'OFFICE OFTHE CHIEF OF ENGINEERS there is a State procedure to insure Federal consistency, the Coast Guard WASHINGTON. C 314 is of the opinion that it should make the ultimate determination as to whether the Coast Guard is being consistent to the maximum extent practicable. ~,NOF: F. Although the plan does not specifically list contacts with the DAEN-CWP-P nr, 197 Coast Guard for plan coordination, D.O.T. is listed. G. In summary, the Coast Guard concerns with CZM are twofold: a. Exclusion of Federal lands. Mr. Robert W. Knecht Assistant Administrator for b. Consistency provisions. Coastal Zone Management National Oceanic and Atmospheric As to the exclusion of Federal lands, the Department of Justice opinion is Administration that the exclusionary clause of the CZMA "excludes all lands owned by the Department of Commerce United States from the definition of the Coastal Zone". In the area of 3300 Whitehaven Street, N.W. consistency, the State plan must incorporate flexibility to allow for maint- Washington, D.C. 20235 enance and expansion, if in the national interest of facilities within the Coastal Zone. Dear Mr. Knecht: We have reviewed the Massachusetts Coastal Zone Management Program and Draft Environmental Impact Statement, Overall, we find the program to be well-conceived and well-written, although serious concerns have been raised with respect to Boston Harbor development and dredging policies, In addition, we are increasingly disturbed by the exclusion from the CZM planning and review process being experienced by Corps field staff, This seems contrary to the intent of the Coastal Zone Management Act and inconsistent with open planning. We suggest that OCZM impress upon all coastal states the importance of and requirements for Federal participation. Secondly, we recommend that the items specified in the inclosed comments be appropriately addressed with program modifications made as necessary. Sincerely, 1 Incl As stated C A. E JR Colonel, Corps of Engineers Executive Director of Civil Works 5. We would prefer that the word "spoil" as first used on page II-2 Corps of Engineers Comments of the DEIS and throughout Volumes I and II of the MA-CZM reports on Massachusetts Coastal Zone Management not be used. We suggest that the term "dredged material" be used Program and DEIS instead, as frequently such material can be used for beach nourish- ment, dune restoration or land enhancement measures. We prefer Coordination and Review to limit the word "spoil" to inland construction jobs where the material does not serve any prospective benefit, such as stockpiling i. Coordination and review opportunities have been inadequate and not in or land enhancement. keeping wch the law or applicable regulations. 6. The last sentence in the fourth paragraph on page 72 of Volume I of 2. Page II-68 of the DEIS states that Appendix C (to Volume I) documents the .A-CZM reports states that "due to the high costs of transporting the opportunity of full participation by relevant Federal agencies in the dredge material from southern coastal communities, a second ocean disposal development of tile management program. Although page C-6 in Appendix C site in Rhode Island Sound is presently under study." Page 118 of Volume suggests extensive Corps-State coordination in the development of the II (Chapter 5) states that "CZM strongly supports the deepening of the MA-CZM management program, OCZM directives require that draft sections (Fall River Harbor) channel and the creation of a new turnaround basin... " of the program be distributed for Federal agency review as the separate We have tried for seven years to resolve the location of a dredged material sections are being drafted. The Corps was not afforded such opportunity. disposal site with both Massachusetts and Rhode Island. We find it dis- Only one Corps-State meeting was held during this program formulation turbing that both the Massachusetts and Rhode Island C71M Programs have stage, a 1.5-hour meeting on 19 January 1977 in which only the November accepted Federal planning assistance funds for three-plus years, but 1976 Program Preview was available for discussion. As none of the MA- neither program has resolved this matter. We believe that resolution of CZM proposals in Volume ;II of the MA-CZM reports concerning possible this key item should have been a prime consideration of both management Corps actions have been discussed with our NED staff, we are unable to programs. endorse the proposed Corps participation recommendations as contained in Volume II. Our NED staff will, however, be glad to discuss individual 7. Our greatest concern with the MA-CZM documents is that we do not proposals on a case-by-chse basis when specific information is brought consider that the documents truly represent a management plan insofar to our attention. An example of this lack of coordination is the HA- as they relate to improvement dredging or maintenance dredging activities. CZM proposal for Stony P4int Dike along Cape Cod Canal on which we They constitute a treatise on various aspects of, rather than solutions responded to Mr. Howard 1hiteside, of Wareham, on 28 November 1977. to, problems associated with dredging. Much of the dredging language Courtesy copies of this correspondence were forwarded to MA-CZM, OCZM is meaningless or talks around the subject. An example is the Dreding and OCE. i paragraph "c" on page 96 of Volume I of the MA-CZM reports which states that hydraulic dredging is preferred to mechanical dredging. However, the 3. The DEIS should mention the review coordination process for State next sentence lists four factors that must be considered in determining review of Federal EIS's. We feel it is essential that comments to our the appropriateness of dredging method. EIS's regarding environmental concerns along the coast be the product of a single State coordinating office. Difficulties have arisen when 8. Another example is the first sentence in the middle paragraph on different State agencies have submitted separate and conflicting responses. page 72 of Volume I which states that "there are seven open water disposal We express no preference for which office should be responsible for the areas approved for the dumping of clean dredge spoil." The word "approved" coordinated response, but only that we be informed of the coordination should read "recommended" as noted in the title to Figure 5 on page 73 process. For example, if a response is made to our Operations Division which reads "Recommended Disposal for Clean Dredge Material." We are maintenance dredging staff, we would prefer that a carbon copy of the more concerned with the excessive distances and exposed locations shown basic letter also be forwarded to our NED-CZM Coordinator, who then by the proposed seven sites in relation to most of the Massachusetts can alert our executive, planning, environmental, engineering, regu- shallow-draft harbors (in this particular case, those less than 12 feet latory or legal offices as appropriate. deep). In general, the shallow-draft scows needed for mechanical dredging in small-boat harbors must for safety reasons stay within a Dredging 6-mile range of a harbor. Only the site off Newburg and the site within Buzzards Bay provide the necessary safety factor. The Corps would be 4. The DEIS and the CZM reports should maintain flexibility-for case- able to continue dredging deep-draft waterways such as Boston, Lynn, by case consideration for evaluating marsh creation and artificial island building as alternatives for dredged material disposal. qg. c. Page 350, Federal Licenses or Permits: See 33 CFR 320.4(j), 42 Federal Register 37138, dated 19 July 1977 for the Corps' procedures Salem, Beverly and Cloucestor Harbors and the Cape Cod Canal. The Corps when local and state permits are required in conjunction with a Corps or the Division of Waterways could probably continue to dredge a few permit. other harbors such as North Plymouth, Hyannis, Vineyard Haven, Edgartown and Nantucket Harbors by using sea-going scows. With the-exception of special Boston Harbor cases where hydraulic dredging, land disposal sites or sidecasting methods could be utilized, dredging costs could become prohibitive for both the 12. With respect to Policy (17) as discussed on page 11-14 of the DEIS, Corps and Division of Waterways if the use of additional dredging equipment we believe that the third sentence in the basic policy statement should is required through. the possible implementation of the Figure 5 proposal, be deleted. We believe that any non-maritime dependent use of prime port frontage represents a substantial degree of irreversible commitment of In view of the many ambiguities, misconceptions, and unresolved issues the site, at least in financial terms. We are deeply concerned by the associated with the MA-CZM report and discussed in these comments, we are continuing preemption of prime waterfront areas along Boston Inner Harbor unable to endorse the dredging portion of the MA-CZI Program in its present for non water-dependent uses. In light of the public infrastructure form. investment discussion on page 111-18 of the DEIS and the present avail- ability of rail access to the South Boston waterfront, we believe that Permits sufficient waterfront and storage acreage should be allocated along the South Boston waterfront for containerport development. Although some 9. At page 351 of Volume I, the Plan implies that except for public notice control of waterfront development could be exercised by withholding and preliminary site inspections, the Corps is precluded from processing EOEA licenses for bulkheading or filling, as discussed on page 176 of a permit application from a non-federal applicant until the Massachusetts Volume 1 of the MH-CZM reports, construction of a high-rise apartment, CZM agency affirmatively issues a certification statement. This is incor- motel or restaurant along the South Boston waterfront would likely only rect and nbt in accordance with applicable law or Corps procedures. Purt- require a municipal permit. In the event that Massport is unable to suant to Corps regulations at 33 CFR 325.2, once the applicant supplies resolve the containerport development issue at the former South Boston a consistency certification with his application, the District Engineer is Naval Annex site at an early date with the Boston Economic and Industrial not required to delay processing. The only restraint on the DE is that Corporation, we would encourage the HA-CZM office to consider execution he may not issue a permit if a state affirmatively objects to the certifi- of a Memorandum of Understanding with the City of Boston so that the cation or requests further review of the activity. Moreover, the District remaining South Boston waterfront could be left undeveloped until the Engineer may issue a federal permit even though the applicant has not yet containerport site issue is resolved. received any required state permits,-since nothing in the federal permit obviates the applicant's need for the state permit pursuant to applicable Consistency state law. This is stated in each permit in general condition (1). How- ever, if the state affirmatively denies a required state permit, the 13. The Program sets forth a set of permitted and prohibited uses for District Engineer may not issue the Corps permit. areas restricted under the Wetlands Restriction Act. It also states, "Local by-laws may provide for more stringent requirements and thus 10. The program states in Table II - Summary of Federal Consistency (p. 352) would supercede this policy." (P. 81). The Corps of Engineers will not that when state scope of jurisdiction is insufficient to implement CZM be bound by Federal consistency requirements to local restrictions not policy, federal consistency will be relied upon to ensure compliance with a part of this program document. the CZM Program. This is incorrect. Federal permits will be used only to carry out Federal policy and law. They may not be relied on to imple- 14. Page II-7 of the DEIS begins to describe the proposed Coastal ment state CZM policy. Policies and refers to those that "will be applied to Federal government activities ..." The Federal CZH Act, quoted at the top of page 350 11. The following specific considerations should also be noted: in Volume I of the MA-CZM report, states that Federal agencies will support the State's management activities "to the maximum extent a. Pages 86-87, Permits for Filling in Navigable Waters, and pages practicable." The following paragraph emphasizes how the Federal 177-178, Permits for:Filling in Navigable Waters, and elsewhere where activities must react to CZM Program requirements. This is confusing applicable: Please note the Corps began exercising its jurisdiction in because there is no clear understanding of what specific environmental all phases as of 1 July 1977. criteria the State will use to evaluate coastal activities. It is not =: b. Page 293, CZM Policy (34): Please note that development in the coastal zone and inland wetlands under CZM Policy 34 may fall under Corps' Section 10 and Section 404 authorities. 4 3 understood whether the State intends to draft new environmental standards - General and criteria under present laws. It is uncertain what environmental criteria will be used to determine what is "clean dredge spoil" (p. 72, 18. With the two notable exceptions discussed earlier in these comments, Vol. 1), "high water turbidity" (p. 96, Vol. II), "contaminated dredge we endorse the basic policies as discussed in Chapters II and III of material" (p. 97, Vol. i), "adverse effects on water quality" (p. 352, Volume I of the Con Report and Chapter 2 of the DEIS. The format used original text, Vol. I) and "adverse effects marine productivity" (p. 352, in Volume IT is generally excellent, although an occasional extra sentence original text, Vol. I). is needed in "GEM cosments" to clarify the rationale. The concept of Special Assistance Development Areas seems particularly worthwhile. 15. If the MA-C7M Program is implemented as described in Part III of Volume I (pp. 344-359, including page revisions), we hope it will 19. We note that implementation of the MA-COM Program would be done eventually strengthen our understanding of environmental issues without legislating new laws. Their intent is apparently to strengthen considered important by the State. Evaluations of coastal issues would existing laws by their enforcement and close management. This will be reviewed during our assessment and impact statement processes. We represent an important first step in streamlining existing State expect that this would lend consistency to our review and evaluation of operating procedures and hopefully create a clearinghouse for resolving State interests. Further explanation, however, should be presented to State and municipal differences. clarify some ambiguities between the Federal criteria and possible future State criteria for evaluating environmental impacts for Corps related activities. Page 344 of Volume I states that the MA-CZM Program fulfills the requirement of the Federal Water Pollution Control Act and .s defined by the "permissible uses" cited in Chapter 1I. Review of (' )ter II identified no reference directly relating "permissible uses" t,.- he FWPCA. Unless these uses are generally contained within "GEM Policies", we could not find any direct reference. Some clarification should be presented because FWPCA is a key consideration in evaluating Corps activities in coastal waters. Areas for Preservation and Restoration 16. We endorse the 10 areas reconmended for preservation and restora- tion (APR's) as contained in Policy (2) and shown by the map on page 11-9 of the DEIS. New Corps navigation work has been authorized or is under study at two of these APR areas. A 6-foot channel and anchorage project was authorized by the 1968 River and Harbor Act for the lower Ipswich River. A preliminary study of the need for entrance channel improvements at Eol Pond has been partially completed by our NED office. In keeping with the spirit of Federal coordination on State CGM Programs, we will defer further action on these and other possible studies in the 10 pro- posed APR areas until they can be discussed with the MA-CZM staff. Ocean Sanctuaries 17. With respect to the implementation of Policy (3) as discussed on page 11-10 of the DEIS, the "Ocean Sanctuaries" discussion contained in the Volume I Addendum prepared by MA-CZM (for insertion on page 95 of Volume I) needs clarification. Unless future State legislation is pro- posed, the wording "any dumping or any waste discharge are prohibited" in lines 5 and 6 of that entry, should read "or the discharge of commercial or industrial waters are prohibited." The language for all five esta- blished sanctuary areas states that the following activities shall be prohibited -- "the discharge of commercial or industrial wastes" -- and frther states that "this section is not intended to prohibit --- channel and shore protection projects" :*' B |UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Rckville. Maryland 10852 2 DATE DEC 1 1971 PROGRAM DOCUMENT TO : Robert W. Knecht A. General Comments Acting Assistant Administrator for Coastal Zone Management The document is long and complex, with many inter-related parts which necessitate the reader's referring back and forth FROM : David H. Wallace among various sections and appendices. Perhaps this is in- Acting Assistant Adminisra or for Fisheries evitable, considering the complexity of the subjects covered, and the institutional problems involved in developing and SUBJECT: NOAA Review of Massachusetts CZM Program and DEIS implementing such a program. We believe, however, that some points need clarification. Our comments on subject documents are as follows: Our major concerns are as follows: DEIS A. The boundary chosen for the northern end of Massachusetts does not go far enough inland. The Merrimack River systems A. Specific Comments: supports anadromous fish populations of alewives, Atlantic herring, American shad, striped bass and in the near future II-3a--To facilitate a better understanding of the Wetlands will support Atlantic salmon. These species now migrate up Restriction Act and the Wetland Protection Act, this section and the Merrimack as far as the first barrier. A fish ladder is similar sections of the program document should perhaps be presently proposed for the hydro-electric facilities at divided between these two categories, as has been done in Lawrence, Massachusetts. Once this fish passage facility Section III of the DEIS. Areas not subject to either of the is constructed, these species will have access up the river two Acts should be stated as such. It should also be clearly to southern New Hampshire. As such, use of these areas outside stated what protection is provided by inclusion of wetlands the designated Massachusetts coastal zone boundary could have in an Area for Preservation or Restroration (APR), and how this a direct and significant impact upon living marine resources compares with, differs from, or supplements protection under within the coastal zone. For these reasons, we suggest that the two wetlands Acts. the coastal zone boundary extend to an area of maximum salinity intrusion at low flow. II-10--Policy(4)--Consideration should be given to encouraging use of Piers on oilings rather than solid fill Piers, to maintain B. The organizational structure that would allow implementation water flow and exchange. of the management program is at least particlly lacking, as are II-ll1--Policy (6)--Draft regulation should be included in the many of the procedures by which the State proposes to enforce FEIS. the policies expressed in the document. The FEIS should state clearly how the Massachusetts Coastal Zone Management II-ll--Policy (7)--The word "commercial" should be deleted Program intends to implement and enforce the policies expressed from this policy statement. in the DEIS and program document. We suggest that enforceable policies be identified and discussed relative to the management III-3--Para.3, 2pd Sentence--Anadromous fish runs in APRs will program. be protected if the areas are designated. However, what pro- tection do anadromous fish runs have in non-Aprs? This should C. Endangered or threatened species and marine masmmals;are only be discussed in the FEIS. briefly mentioned in the DEIS, or in the coastal. zone management document. The Parker River estuary has been statqed to: cpntain In addition to the above comments on the DEIS, we are appending a population of shortnose sturgeon. As this species is on our comments on the Massachusetts Coastal Zone Program docu- the endangered list, the FEIS should provide a discussion for ment itself, since they are relevant to consideration of the DEIS. 3 4 the conservation and preservation of endangered species. The FEIS should also list and present a discussion on marine G. The Program does not specify a method for prioritization mammals. or implementation of the various policies, or the mechanism whereby each agency will be responsible uader the various D. Authority for environmental matters, particularly the applicable state laws. It is important to know what type of issuance of permits, is discussed in a confusing manner. It regulations will be employed to carry out the Program. appears that many agencies have the capacity to issue permits. In the case of permits for activities in wetlands and other H. The Program lacks sufficient attention'to policies that would inshore areas, for example, it seems to us that jurisdiction encourage the wise management and utilization of fisheries is shared among several agencies; both Department of Environ- stocks and associated living marine resources. The Program mental Quality Engineering and Department of Environmental also fails to establish a mechanism for coordination with the Management programs are applicable, and apparently most major New England Regional Fishery Management Council. On pages estuaries would come under the Division of Land and Water Use 161, 163, 172, the Massachusetts Coastal Zone Management Waterways Program. Since the Energy Facilities Siting Council Program does emphasize the importance of commercial fishing may override terms of a Waterways license, it appears that the operations, yet does not go further to establish and promote Council exercises veto power over wetlands protection in a policy to encourage the industry to further this goal. these cases. Other examples of confusing or divided authori- ties appear on pages 94, 121, 149, 176, 177, 216 and 259. In view of our concerns listed above, and of the specific comments that follow, the Office of the Assistant Administrator E. Networking appears to be the coordinating mechanism upon for Fisheries questions the adequacy of the Massachusetts which the state will depend to assure cooperation among agencies Coastal Zone Management Program for Section 306 funding. and adequate consideration of conflicting values and uses. How- The Massachusetts Coastal Zone Management Program exhibits ever, the discussion is vague as to how such networking will problems that should have been worked out with Section 305 be carried out, and which is the lead agency in decision- granting funds. Such concerns as the permitting process, making and issuance of permits. It is our opinion that net- coordination among state agencies, as well as Federal agencies, working, though of great value when information transfer is designation of the boundaries, and establishing local agencies the purpose, is of limited value in decision-making and for implementing and enforcing the proposed Program are not regulatory situations. The public will find it confusing if fully developed. it is not made clear where authority and accountability lie. The general approach presented in the DEIS and the Program F. The proposed management system is difficult to visualize. document to effect responsible, coordinated, state-wide CZM has memoranda of understanding with some agencies, while management within the coastal zone appear to us as the first such arrangements are pending with other agencies, and still step in implementing a viable zoning program. We suggest that others are proposed. It is difficult to discern from the in order to continue the efforts of the Massachusetts Coastal program document the exact aims and purposes of such memoranda, Zone Management Program, that Section 305 funding be extended and just what they are expected to accomplish, especially when for an additional year. However, if approval is imminent, we entered into between subparts of one agency. Guidelines, suggest that the Program be approved for one year, and at the criteria and regulations to carry out program management and end of that year another public and federal review follow. implementation are either lacking, or in various stages of Further, provisions would have to be made to ensure that development. without such specifics, it is difficult to pre- major irreversible decisions are not made during this period. dict what program decisions and priorities might be under the Final approval would then be subject to the same criteria as Massachusetts Coastal Zone Management Program. are not applied. B. Specific Comments Significant Resource Areas I. Introduction Page 28: 1, la, lb - Significant Resource Areas A Management System that is Useful and Used (Ecological, Restricted, and Conditioned) Page 15, 2nd Para. It is not clear what criteria are used to classify an area to be included in the Wetland Restrictions Act or the Wetland We would be interested in a more detailed discussion of plans Protection Act. Further, it is unclear why significant to streamline and unify the permitting process within the resources areas are broken up into the three classifications state. We note on page 351 the promising concept of joint and how these three classifications are protected under the processing among Federal and state agencies which would Acts. For example, the Wetlands Restriction Program certainly help streamline the interagency process. NMFS "restricts' coastal wetland areas from alteration; does already coordinates review of Corps of Engineers and Coast "restricts" mean alteration is prohibited outright, or are' Guard pubick notices with the Massachusetts Division of Marine there gradations of protection involved? Fisheries. Coastal zone streamlining.coordinating and ex- tending such processes to take in other, state agencies would Further, at the top of page 29, it is stated that, "... be most helpful. in the interim, no uses are prohibited per se in these areas," rather they are conditioned to protect certain The tracking system referred to in the same paragraph should be interests...". The document should describe the standards more thoroughly described. A central state system which would to be used in determining what conditions will be imposed follow the status of any permit section on a real time basis on proposals. would be most useful to the public and to all concerned agencies, but it is unclear in the document whether this is Page 35: Table 1 - List of Significant Resource Areas the type of system that is planned. A. A tabulation of endangered species, and of fish species II. Massachusetts Coastal Zone Policies and Summary that spawn in coastal areas should be included in the document, if not in this list then at some appropriate place. Coastal Hazards The Marine Environment Page 22, Policy(8)c Protection of marine resources and associated habitats should Objectives be included in this paragraph. It is important to recognize Page 79 that the.public can be protected against hazards without jeopardizing other important resources. This section should The conservation of fisheries and associated resources for discuss and describe the standards the itate will use in this and future generations and to improve the quality of determining how certain types or degrees of impact will or will not be permitted. The reader will then have a clear fseissol eoeseii betvso h Massachusetts Coastal Zone Management Program. Further, understanding of the types or areas and uses the state will policy and implementation sections should be developed focus on, and how various policies will be balanced. relative to these goals. What is the Coastal Zone Permitted and Prohibited Uses Overview of What Can Occur in the Coastal Zone Page 81, 2nd para. Top of Page 27 It is stated that regulations for the Wetlands Protection Act are being revised and will be promulgated before or shortly Para. C should be clarified, for it appears to state that after Federal approval of the Massachusetts Coastal Zone development will be allowed in all sensitive coastal areas. t4'1 Management Program. Any revision of regulations should be Page 89 presented to NMFS and others for review. Further, the per- mitted and prohibited uses described in this section are The "smaller projects" referred to in this section as being not well defined or specific enough for us to draw con- exempt from MEPA regulations should be defined: What clusions as to their adequacy. They should be more clearly constitutes "smaller"? defined and specific in the FEIS. Coastal Wetlands Restrictions Program Policy 4 Page 84 Implementation The intent and means by which the Wetland Restriction Program Division of Marine Fisheries will be regulated or enforced is confusing; it appears that P a e 95 the Metropolitan District Commission(MDC) and the State Reclamation Board are exempt from provisions of this program. According to this paragraph, Massachusetts Division of Mari e Further, it would be helpful to understand the extent of Fisheries responsibilities are limited to coastal streams ad control the MDC and State Reclamation Board have over wetlands. anadromous fish runs. It is our understanding that their responsibilities go beyond this. In fact, the Department Permits for obstructions or Alterations of Fisheries, Wildlife and Recreational vehicles will be most affected by the Coastal Zone Management Program. This Page 87, first para. section should describe the Department's responsibilities and authorities. Further, because of the expertise in this It is stated that under Corps of Engineers regulations and department for assessing biological impacts of coastal Federal Consistency regulations, the Corps may not issue a activities, we recommend that this department review and permit without a Coastal Zone Management certification of respond to all activities which may significantly impact consistency. While we agree with this, the state should marine resources and habitat. The same problem appears.o also address the converse, for there will be instances when page 337, where Division of Marine Fisheries expertise is the state would permit a project which a Federal agency might cited as applicable to discharge permits; they should also deny. be counted on for expertise on permits for physical changes in habitat. Energy Facilities Siting Council Page 87 Page 7 According to this paragraph, the Council has overriding powers National Marine Fisheries Service over permits issued by the state and local-agencies. If this is the case, then the Council must also be exempt from the Wetlands Restriction and Protection Act. This being the The responsibilities stated under this Section should be case, what checks and balances are available to assure panded upon. protection to living aquatic resources? To deal with environmental problems, NMFS recognizes habitat Policy 2 conservation as an essential part of resource management and utilization. Continuing process toward implementation of th Implementation National Plan for Marine Fisheries is evidence of this. The Massachusetts Environmental Policy Act (MEPA) Secretary of Commerce recognizes conservation of fish habita as an integral part of the goal to restore, maintain, enhanc 9 ~~~~~~~~~~~~~~~~~~~~~~10 and utilize fisheries resources. Further, the Fishery ihre.Fseisvfpoel osre n tlzd Conservation and Management Act, in its definition of fillhbries. bnFitst heristat if peroperliy. conervedforutlied, "fishery resources and conservation and management," recognizes wlern benefit toa the Progate inul peromotu oity. Therefore, that conservation and management must include rebuilding, wefehttenrograge wshol promotemn an poptimum uthliatio wofucon restoring and maintaining fish habitats. Therefore, one of meria ndrcoraeatoa wisherinaemen and sopuld putilzto ofhem our agency's prime obligations is to protect and conserve imporiclandrcreatona fisheries, and should perpetiv thpaedt living marine resources through maintenance of a responsible imortaneoiheriuesiete persetivcompared tonfitn ss environmental ethic amidst continuing and intense pressure ohruepriual ofitn ss to eliminate or unnecessarily degrade remaining marine andItwudbhepltosinvaaigtefnlCatl estuarine habitats. To meet this obligation, we reviewitwudbhepltosinvaaigtefnlCatl permit applications for proposed construction activities Zone Management Program if a discussion of goals to serve in navigable waters, respond to pollutant discharge permit as guideposts to the future of marine fisheries were in- applications, review environmental impact statements, evaluate cluded. For instance, a detailed discussion of the Nation's federal water development project plans, and develop recommenda- goals for marine fisheries is presented in a document tions o ensue tha projets avid, miimize or miigateentitled, A Marine Fisheries Program for the Nation, (U.S. damage to fsrensoures.T thatpoect lvistmniie of eistivacts Dept. of Commerce, Washington, D. C., July 1976, 74 p.). daaertnn to fishdesoralcons.Tthlistencylegiseladdtive actshr Conervtioneand to nafemeral Aconiteny ofas 1976 the 94shery The Honorable Elliot L. Richardson, then Secretary of Commerce, Conservtion an Manaaeent.Actof 1976 (P.L. 4-265)stated in this document, 'Our fisheries are one of the- Coastal Hazards ~~~~~~~~~~~Nation's --indeed the world's-- greatest resources, and will Coastal Hazards ~~~~~~~~~~~become increasingly important as a source of food for man objectives ~~~~~~~~~~~~~~in the decades ahead. Ile cannot permit the depletion of our Objectives ~~~~~~~~~~~~~~fish stocks and the destruction of fish habitats to continue. We must learn to manage this resource so that we may use it CZM Policies and Proqram Recomm e n d a t i o nsto the optimum now and so that future generations may be able Policy 8c, page 119 ~~~~~~~~~to use it and draw even greater yields from it. And we can Policy Oc, page 119 ~~~~~~~~~and must do it in ways which are compatible with the Nation's Protection of fishery resources and associated habitat should need to develop other valuable uses of the ocean.' be included in this section. The four broad goals of the Marine Fisheries Program for Visual Environmenit the Nation are based on the national interest in the con- servation of marine fisheries resources, their use for food Policy 14 ~~~~~~~~~~~~~~and recreation, and their contribution to the Nation's Policy 14 ~~~~~~~~~~~~~~economy. They lead to five principle recommendations con- Massachusetts Environmental Policy Act cerned with (a) managing and conserving marine fisheries; (b) conserving and enhancing fish habitats; (c) strengthening Page 152 ~~~~~~~~~~~~~~~the commercial fishing industry; (d) improving marine recrea- Page 152 ~~~~~~~~~~~~~~~tional fishing opportunities; and (e) meeting projected con- Refer to Policy 2, page 89 comment. sumer demands for fishery products. Ports and Harbors ~~~~~~~~~~The following is a statement concerning the Fishery Conservation Ports and Harbors ~~~~~~~~~~and Management Act of 1976 (P.L. 94-265) and how it may con- The Fishing Industry flict with some Coastal Zone Management actions. We believe that this section, and the Program in general, should This Act creates a 200-mile fishery conservation zone (FCZ) crya greater recognition of the value and importance of of f the coasts of the U. S., and provides for the conserva- carry ~~~~~~~~~~~~~~~~~tion and management of all fishery resources found off the 11 12 coasts of the U. S. The Act establishes a fishery management plans, policies and controls in the coastal zone. Conversely, authority which will have management responsibility over all if proposed actions under various Fishery Management Plans fish (except highly migratory species) within the FCZ, over if proposed ac tions under various Fishery anagement Plans all anadromous species that spawn in U. S. rivers and streams increase domestic catches of certain species, additional demands in coastal areas may be created for fishing vessels, (excepand migrate they are in water Nation's the extent of their range seafood processing plants, labor, housing, harbor facilities, or r(except when they are in another ations territorial sea freshwater supplies and waste treatment facilities. Therefore, or recognized FCZ), and over all living marine resources the coastal zone program should take cognizance of various of the continental shelf beyond the FCZ. Further, it provides the coastal zone program should take cognizance of various for the preparation and implementation of fishery management evelopment s a nd actions that the New England Fishery plans which will achieve and maintain, on a continuing basis, Management Council is undertaking. the optimum yield from each fishery. Further, a basic intent of the Coastal Zone Management Act of 1972 is to encourage coordination of state/federal efforts in With passage of this Act, the U. S. Congress made it clear managing coastal resources. Aquatic life obviously knows no guarth a t the U. S. ut anag source itof fishery products for as this political boundaries; thus, the success of the Massachusetts guarand succeeing generations. The Secretary prof Commerce under Coastal Zone Management Program in protecting, restoring, and succeeding generations. The Secretary of Commerce under or enhancing living coastal resources is dependent not only the authority of the Act has established Regional Councils upon the wise and orderly use of its coastal zone, but also which are charged with the responsibility of developing upon the i and orderly use of its coastal zone , buelieve thatlso management plans to carry out this goal. In order to manage upon the actions of other coastal states. We believe that management plans to carry out this goal. In order to manage the Coastal Zone Mangement Act can be-a extremely valuable the Coastal Zone Management Act can be-an extremely valuable fisheries, the supportive habitat of individual species must tool for stimulating cooperation between states to improve be conserved and managed for the national interest. In this the conservation and alloation of pc ific aquatic connection, the Act (Sec. 304) specifically directs the fishe ries resources. Secretary of Commerce to conduct "... biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish, the impact of wetland and estuarine degradation, and other matters bearing upon the Saltwater Fishing and Shellfishing abundance and availability of fish." The authority of individual states to manage fisheries within Page 198 three miles of shore is preserved in the Act, if their management plans do not conflict with effective management A management scheme for recreational fishing h ave many impli for those resources in the entire 200-mile FCZ. All species cations--eonomi, s oial a nd institutional--which should that primarily inhabit and are harvested in the waters beyond be evaluated and addressed. the three-mile territorial sea will be managed by Regional Fishery Management Councils. The Act, with certain exceptions, Conflicting Uses and Environmental Impacts sets a precedent by claiming exclusive U. S. management rights to all anadromous fish originating in our rivers throughout their migratory range. It also emphasizes (in Section 2) a national program for the development of fisheries which are Conflicts between commercial and recreational fishermen should underutilized or not utilized by United States fishermen. be discussed in this section. Particular problems occur Preliminary Fishery Management Plans have been prepared for among the various fisheries, finfish vs. lobster, full-time Preliminary Fishery Management Plans have been prepared flobstermen vs. part-time, etc. These problems should be several fisheries caught in areas under Federal jurisdiction discussed and solutions suggested. that utilize inshore waters under state jurisdiction for spawning or rearing purposes. Conservation and management of these resources could be affected by land and water use 13 UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration ENVRONMENT AL DATA SERVICE Energy __ Washington. D.C. 20235 We have a specific concern which relates to the Coastal Energy Impact Program (CEIP). We are concerned that because of the nature of the proposed action (i.e., a funding program), the CEIP could lead to stimulation of unnecessary coastal development. We foresee the potential for conflicts between certain elements of this program and our responsibilities z NOV 1977 under the Fish and Wildlife Coordination Act. It would appear that most of the projects supported by the CEIP would, by virtue of their siting, also require a Federal permit or license. Although these projects may be consistent with TO: Joellyn K. Murphy the Massachusetts Coastal Zone Management Program plan, it Director, Federal Programs Office is possible that the NMFS would recommend denial of permits Office of Cas ent and licenses for such projects when located in coastal areas of high fish and wildlife value. Overall, however, serious FROM: Kent H. Hughes conflicts should seldom arise since our mission is closely Special Assista r Mar S aligned to the concerns expressed in the Coastal Zone Manage- ment Act (Section 302 and 305) and those of your state. SUBJECT: Cbaments: DEIS on the Massachussetts Coastal Zone Manageiient Program General Developments and Public Investments CZM. Policies and Program Recommendations ibhe Environmental Data Service has no coEments on subject Policy 34 program. Page 293 Coastal wetlands should be included in this policy. Management This section should present a discussion on how the Commonwealth of Massachusetts will coordinate fishery management programs with adjacent states. An essential element of fishery management is coordination between adjacent states and among concerned agencies (federal and state) working toward similar goals. Management- programs or policies must include the protection of migratory species, because it is here that the effects of pollution and other disturbances can be damaging. Management of such species is somewhat complex because it requires the cooperation and coordination of programs between communities and between states. A species may breed in one bay, feed in - . another and winter in a third, making it difficult for any one; .-' -.f,. >. '.-. ' state to act effectively. In addition, water moves from one locality to another bringing one tox:n'r waste to another's shore. Therefore, it becomes imperative for states to coordinate fishery management programs with adjacent states, and we encourage such thinking. D M. KENNEDY SSACIHUSlIS THFIE COMMONWEALTH OF MASSACHGUSETTS ~n.; i '}-:-~, c 3 OFFICE OF FEDERAL - STATE RELATIONS "cncl:b ,fetdcs -.;Znate Hail of the States. Suite 307 WASHIN.ON. D.C. 205.0 444 North Capitol Street. N.W. Washington, D.C. 20001 (202) 1528-1G05 December 12, 1977 . ichel S. Dukakis Governor Honorable Juanita M. Kreps TIhr.as P. O'Neill. III Secretary Livurellol Governor Department of Commerce Washington, D.C. 20230 Dear Madame Secretary: December 20, 1977 We are writing to urge your favorable consideration of the proposed Coastal Zone Management Plan for Massachusetts which was recently submitted by the Commonwealth's Office of Environmental Affairs. TO: ALL INTERESTED PARTIES We believe that the proposed program is consistent with FRn LIEUTENAIUT GOVERNOR TTIOiIAS P. O'NEILL,III the policies, purposes and goals of the Coastal Zone Manage- ment Act, and we have confidence in the ability of the Office Enclosed for your information is a copy of the letter sent by of Environmental Affairs to implement this program in an-open the M:assachusctts Congressional Delegation to Secretary Kreps and balanced manner. expressing support for our Coastal Zone Management Program. A primary cause of our support for the program has been Thank you for your interest and please do not hesitate to call the willingness of the state office to consult with -- and to Imly office if we can be of alny assistance. heed -- recommendations made by local public officials, and by individual citizens with valid environmental concerns or economic interests in the coastal zone. It is our understand- ing that this consultative process is still continuing, and it is our desire that it remain characteristic of the Massachu- setts program in years to come. We believe that the proposed coastal zone management pro- gram will aid Massachusetts, while also fulfilling the intent of Congress in creating the Coastal Zone Management Act. In Atc122077 particular, the Massachusetts program is designed to: Attachrment -- improve the management of environmental permitting activ- ities in order to streamline processing and minimize delays; -- develop consistent sets of regulations in order to increase predictability, eliminate inconsistencies, and minimize con- fusion in decision-making (this has long been sought by environ- mental and developmental interests alike); Honorable Juanita M. Kreps Honorable Juanita U. Kreps Page 2 Page 3 -- identify those coastal areas which are -- due to their unique value and fragility -- in need of particular attention and protection; -- encourage the balanced overall development and use of resources located in the coastal zone; and eryl <tuds -- put in place a mechanism for delivering planning grants and Gerry o. C studd s oEarly Member of Congress Kefne fCnrs providing technical assistance to communities interested in addressing coastal problems. Thank you for your consideration. Paul E. Tongas Edward J. arkey Paul E. Tsongas 'Edward J. Markey 'm Member of Congress Member of Congress Sincerely, AP V (j ~~~~~Edward M. Kenn~dy Thomas P. O'Neill, Jr. Edward M. Ken ndy apeger'of the T1buge United States Senator (jEdvard P. B l~nd Edward W. B'rooke 'Member of Congq s United States Senator (Jgmes A. Burke "ilvio . Conte )a-mber of Congress Member of Congress Mae U [i. Heckle I Ma alet M. Heckler Michael Harrington Me b/ of Congress {eber of Congress Robert F. Drinan Jo Moakley Member of Congress er of Congress- 5C3 COM4ENTS RECEIVED FROM STATE,REGIONAL AND LOCAL GOVERNMENTS December 8, 1977 Page Two list (409ry9)(kars tV~flnzz'5Th~t? ~ n-own programs for the management of coastal areas. To require continued Federal oversight of individual projects, as the DEIS does in effect for transportation though not for any other area, is directly contrary to this concept of a state Coastal Zone Management Program. ................. SA- J111,~ , ,'-AI~ktt'1.//, 19,,..f SEC.E-ARY We believe that this proposed shift in responsibility December 8, 1977 from the state to the federal level, under the amendment/revision mechanism, will work against full integration of growth policy concerns in the earliest stages of project planning. Federal review of individual projects will necessarily be more difficult Ms. Kathryn Cousins than state CZM review to coordinate with existing planning, to office of Coastal Zone Management ensure that Policy 35 consistency decisions are made at a mean- National Oceanic and Atmospheric Administration ingful point in the development process. That point must be 3300 Whitehaven Street, N.W. sufficiently early to prevent a basically inconsistent project from gathering momentum, but sufficiently late that adequate information is available. Participation by the state's Coastal RE: State of Massachusetts Coastal Management Zone Management Office in the existing preliminary planning Draft Environmental Impact Statement processes for major transportation projects appears to us to be the only way adequately to gauge when the Policy 35 consistency determination should be made. A related concern is that federal Dear Ms. Cousins: review of individual projects, added.to an already attenuated planning process, will unnecessarily delay those projects found I am writing on behalf of the Massachusetts Executive by the state CZM to fully serve the purposes of Policy 35. Office of Transportation md Construction, and its constituent agencies and authorities, regarding the Commonwealth's proposed Nor does it serve the interests of Policy 35 to acceler- Coastal Zone Management Program as evaluated in the above- ate the consistency review process by requiring that major pro- mentioned Draft Environmental Impact Statement. jects be named in the Program. Clearly, the logic of the propose amendment/revision mechanism requires that all known transporta- This Office has reviewed the proposed Program in detail, tion projects which will serve developed arei' consistent with and generally supports the substance of the policies articulated Policy 35, be included in the current management Program. But in the Program. In particular, we fully support the promotion for the state CZM to make these decisions now, in a hasty and of major public infrastructure including transportation projects ad hoc manner, will most certainly defeat the orderly planning primarily to serve already-developed coastal areas, as provided of future growth and development. for in Policy 35. As an alternative to the Program's amendment/revision However, we are very much concerned about the mechanisms mechanism, therefore, we would propose that review of major currently described in the DEIS for review of major transportation transportation projects for consistency with Policy 35 be conduct projects for consistency with Policy 35. The DEIS provides by the state CZM office during the "systems planning" stage of (page 11-31) that major transportation projects, other than project development, during which general alternatives for an four projects noted in the text, will require amendment to or area are considered prior to preliminary engineering and environ- revision of the CZM Program itself in order to be deemed con- mental studies on a particular proposed project. In the case sistent with the Program. This provision seems to us to seriously of most highway projects, systems planning takes place during undermine both existing planning processes and the new coastal the Corridor Planning Study process administered by the Bureau zone management process about to be put in place. Our under- of Transportation Planning and Development. In the case of standing has been that the central purpose of the Coastal Zone other transportation modes, appropriate systems planning stages Management Act is to enable states to develop and implement their will be specifically identified. Our intent is to establish a P j?'' C */r/''. M~~~~~~~~~As. Kathryn Cousiins Nvme ,1 (7,',-,/~?~- ~>',r~ (.v.'/rcvunr'/~/.sjza'rsoffice of Coastal Zone Mlanagem3ent Page 2 1/ mi 6/' - ~~~~~~~~~~~~~In the finial paragraph, tirefigures should bi; changed ID folox-s U/ (ffl/ ~~~~~~~~~~25, 000 to 27, 000; $11, 250, 000 to $15, 000, 000; 155 Lo 165; 414 percent tc 'zr ~t/~A$,~ ~$~r~< M0.~/6~~ r'Z97-2 47 percent. "Brewister" should be added to list of towns, followjing "Marshfield." We realizo that this nrsterial has been slistrpcledl from the Srtole report and, thus, ma)' be~ dated. We have no problem with the clot'- Nlovemnber 8, 1077 'lla, ut ft-lt yurr lni phi like tIII( uppr'rt"!nrivty L'. I- th" Proper rife err.- tion concerning eAlat progr-arils. A~~~rs. Katl~~~~~~~~rynr Corsirra ~~~~~~~~~~Shincerely yours, 0flice of Coastal Zone iAlansgernent 3:300 Wh'itelreven Street, TN. W. a ~ ~ (i Wasiritrrr, ).C. 2,0235 Emerson 11. Charrdler Del.a Ills. Corisirra: Chief lPlarrner We nassirar Brat typographical errors s;uch as the reference to "grave jrjirriri' on page 11-li will be picked up bry your own staff EJTC/hrb review11. We will, therefore, comment onjly upon a few, things wvhich we feel ore ina~ccurately portraye~d. tilr1 page 111-8, piaragraphr 4, we feel thant the reference should3 be to "tikida fs' rl riot ''sImlic-li sh bd'.Shellfish, beds cart lie lo-- esited far hyrrrc tlnt ,point OF prtiv,5t(v twneosnipl - beC-yonrd the treed of restriction. Tire coastal restrict ion programnI as conducted prior- to .ianularv 1,P7. ought to restrict a9;'ltrrrcrsh, harrier beaches, richh ' I'sodsorn' erltrrarrcfrvslrwriet tnarrsr. Ti-e rerstrictio'r ,,' l 19 In (fNta; .Itid dririrn will repret-aen an t'xp;Insion of scop of tir vo I:, ri-vt jet Wio! jitlpien ':ntcitton poe~ r Oil'm-',lI--!,, pa ragrsIrhi 5. then est! of lanid5 a-qridred pimut-neit C~~~,V~Irt a. i'lie Usei r'f such~ land carr. onix- bi-: for l ncva-,r gvein lire'; Hv-' tlipt Sit., 'ehbu)eIIt or the cotof acqot ivi;! .urehn[nl. And 1sZn& wa'l acMaacr3lJ' page two 1w" Ze, Yer m,'or November 1, 1977 Secretary Murphy y js/Zz g9tt7,!4 �j/ yUj/4r7,4y0,fe~zz ,Afic/ ,XJ/on. ,YK~f>Ezfa.:ojc/nsjc/A. eV/' ~are created as well. Any mechanism should involve close coordination with ( /A our office. As the State Historic Preservation Office for Massachusetts, < f~~~oU?/7-J2I>O~� Uwe can provide information on properties identified in our statewide historic inventory -lnd can assist CZM in applying the National Register criteria of eligibility. Since the collection of inventory information November 2, 1977 and the National Register listing process are ongoing programs, it dannot be assumed that the information available at the present time is complete. The Draft EIS also makes no mention of. compliance with Section 106 of the Mr. Sidney R. Caller National Historic Preservation Act, which provides for review of proposed Deputy Assistant Secretary for federal projects by the Advisory Council. on Historic Preservation according Environmental Affairs to the Advisory Council Procedures (36 CFR 800). Insurances should be US Department of Commerce included in the document that will provide for this review whenever federal Washington, D.C. 20230 plans or programs are implemented in the CZM. Re: Massachusetts Coastal Management, Draft Environmental Impact Statement Policy 36 (p. 11-43) stresses revitalizationof existing developed areas as Dear Mr. Galler: a component of the program. lMay we stress the importance of item i), ~~~~~~~~~~~Dear Mr. C a G e ~~ller: ~rehabilitation and adaptive reuse of older structures. Priorities for rehabilitation should be given to properties of historic and architectural The tMassachusetts Historical Commission has reviewed the Draft importance, again slg the git perti of historic and afcllit i Environmental Impact Statement for the above project and has several the National Registe r of Historic Places. concerns regardingp, the program's policies for protection of coltural resources. The CZM plan can act as an important tool i preserving the cul tural resources of the coastal zone. We urge that our recommendations be incor- The section on Visual Policies (p. 11-13) does not adequately cover porated int of the Final EIS so that the plan will have an effective means of all cultural resources; instead it limits importance to properties impleme n ting its policies regarding the cltural environent. which can be recognized by their architectural character. This excludes from prz-cction properties of outstanding historical importance and Sincerely yours, both prehistoric and historic archeological sites which most often are not visible above ground. Since the National Historic Preservation Act/ A' @ ; a Ci requires federal agencies to protect properties of outstanding signifi|d v- cance in American history, architecture, archeology and culture, this ElizLeth Reed Amadon section will need to be revised. Executive Director Massachusetts Historical Commission In addition, the Natioa]l Historic Preservation Act criteria for signi- State lisiloric l'reservation Officer ficance includes all properties listed or eligible for listing in the National Register of Historic Places. Thus the document's reference to protection of properties -listed in the Register or in local historic Evely Mphy disL-ric-ts ('p. 11-63) dcos-not include-all of the resources for which proledficn>)~ msandated-.-- The CZM program should also include protection EI.A/MBW/etd for properties not yet' listed ini the National Register but Which meet the criteria for listing as outlined in 36 CFR 800.10. In the case of archeological properties, Executive Order 11593 romadates federal agencies to identify sites through professional archeological investigations in certain cases. A mechanlism should be d(-lve] oped to colltinule to idetlify prolpertie-s eligible for the National Register and to identify new local historic districts that December 8, 1977 Page Three framework which ensures that all major transportation projects are reviewed for Policy 35 consistency before they proceed ,y . .f ,)- . beyond the systems planning stage. We have suggested to the lirr �'(: J1 U J/rw, State CZM language implementing this commitment to be inserted into the final Coastal Zone Management Program; and this Office ;l is further prepared to enter into a Memorandum of Understanding with the state.CZM detailing exact procedures for carrying out E ferSinJ Policy 35 reviews as well as consistency determinations regarding other policies. (We have also worked with CZM on language December 8, 1977 changes to clarify the definition of "major" transportation projects and to delineate criteria to be used in connection with evaluating transportation as opposed to sewer treatment projects.) Ms. Kathryn Cousins In summary, we would urge OC M to retain in the trans- Office of Coastal Zone Management portation area, as it has in other functional planning areas, National Oceanic and Atmospheric Administration the concept of the Coastal Zone Management Program as a set of 3300 Whitehaven Street, N.W. general policy guidelines which are to be applied to individual Washington, D.C. 20235 projects by state CZM in accordance with procedures set forth in the Program. We believe strongly that such a framework, RE: State of Massachusetts Coastal Management placing Policy 35 consistency review responsibility squarely Draft Environmental Impact Statement with the state authorities most familiar with the unique problems of Massachusetts' coastal areas, will more than adequately foster responsible control of growth in those areas. Dear Ms. Cousins: Sincerely yours, I am writing on behalf of the Massachusetts Executive Office of Transportation md Construction, and its constituent (lI agencies and authorities, regarding the Commonwealth's proposed ]reder/ ck P._+ A Salvucci A ,mentioned Draft Environmental Impact Statement. Frederick P. Salvucci Secretary of Transportation This Office has reviewed the proposed Program in detail, and Construction and generally supports the substance of the policies articulated FPS:mxg in the Program. In particular, we fully support the promotion of major public infrastructure including transportation projects cc: Mr. Eric Van Loon, Director primarily to serve already-developed coastal areas, as provided Massachusetts Coastal Zone for in Policy 35. Management Office However, we are very much concerned about the mechanisms Mr. Norman Van Ness, Division Administrator currently described in the DEIS for review of major transportation Federal Highway Administration projects for consistency with Policy 35. The DEIS provides (page 11-31) that major transportation projects, other than .. four projects noted in the text, will require,amendment -to or revision of the CZM Program itself in order to be deemed con-..i sistent with the Program. This provisiopnseems to us to seriously undermine both existing planning processes and the new coastal zone management process about to be put in place. Our under- standing has been that the central purpose of the Coastal Zone Management Act is to enable states to develop and implement their December 8, 1977 DecDccr 8, 1977 Page Tlree Page To Page Three framework which ensures that all major transportation projects own programs for the management of coastal areas. To require are reviewed for Policy 35 consistency before they proceed continued Federal oversight of individual projects, as the DEIS beyond the systems planning stage. We hve suggested to the state CZM language implementing this commitment to be inserted does in effect for transportation thouh not for any other ara, into the final Coastal Zone Management Program; and this Office is directly contrary to this concept of a state Coastal Zone is further prepared to enter into a Memorandum of Understanding Management Program. with the state CZM detailing exact procedures for carrying out We believe. that this proposed shift in responsibility Policy 35 reviews as well as consistency determinations regarding from the state to the federal level, under the amendment/revision changes to clarify the definitionh CZM "major" transportguage mechanism, winl work against full integration of growth policy projects and to delineate criteria to be used in connection with concerns in the earliest stages of project planning. Federal evaluating transportation as opposed to sewer treatment projects) review of individual projects will necessarily be more difficult than state CZM review to coordinate with existing planning, to Ir summary, we would urge OCZM to retain in the trans- ensure that Policy 35 consistency decisions are made at a mean- portation area, as it has in other functional planning areas, ingful point in the development process. That point must be the concept of the Coastal Zone Management Program as a set of svfficiently early to prevent a basically inconsistent project general policy guidelines which are to be applied to individual from gathering momentum, but sufficiently late that adequate projects by state CZM in accordance with procedures set forth information is available. Participation by the state's Coastal in the Program. We believe strongly that such a framework, Zone Management Office in the existing preliminary planning placing Policy 35 consistency review responsibility squarely processes for major transportation projects appears to us to be with the state authorities most familiar with the unique problems the only way adequately to gauge when the Policy 35 consistency of Massachusetts' coastal areas, will more than adequately determination should be made. A related concern is that federal fester responsible control of growth in those areas. review of individual projects, added to an already attenuated planning process, will unnecessarily delay those projects found Sincerely yours, by the state CZM to fully serve the purposes of Policy 35. Nor does it serve the interests of Policy 35 to acceler- ate the consistency review process by requiring that major pro- k \ d jects be named in the Program. Clearly, the logic of the proposed Frederick P. Salvucci ameadment/revision mechanism requires that all known transporta- Secretary of Transportation tion projects which will serve developed areas consistent with and Construction Policy 35, be included in the current management Program. But FPS:mxg for the state CZM to make these decisions now, in a hasty and ad hoc manner, will most certainly defeat the orderly planning cc: Mr. Eric Van Loon, Director of future grcwth and development. Massachusetts Coastal Zone Management Office As an alternative to the Program's amendment/revision mechanism, therefore, we would propose that review of major Mr. Norman Van Ness, Division Administrator transportation projects for consistency with Policy 35 be conducted Federal Highway Administration by the state CZM office during the "systems planning" stage of project development, during which general alternatives for an area are considered prior to preliminary engineering and environ- mental studies on a particular proposed project. In the case of most highway projects, systems planning takes place during the Corridor Planning Study process administered by the Bureau of Transportation Planning and Development. In the case of other transportation moldes, appropriate systems planning stages will be specifically identified. Our intent is to establish a CUr elmmArlYn� $enntrsbr TA -o -4amonwea/td4 9/d, zfda/wCt v5'1amanfanmolgweald, #d~uamCania STATHIENT OF THE SECIIlETY O A DU KIMORANDUE DIAFT UNVIIRWNTAL IMPACT IEPORT TOt Eric Van Loon, Director The Secretary of Environmental Affaire herein iaeues a state- Cotal Zone aaement ment that the Draft Environental Impact Report submitted on the below Eve. Murphy, n. referenced project doeao adaquately and prope rly comply with e assachu- E tv Off of nScrvitaryon et aetts General Lawv, Chapter 30, Section 62 and the regulations govern- Iecuttwe Office of nv lng the preperation of environmental mpaect reports. However, the co- menta met forth in the attached memorandum, am well as the commente oDsT D cebet 15, l977 received during the review period will need to be responded to ln order to produce a * tiefactory final report. Pat R OS 802796, Draf$ Savironmental Impact Report Proposed Maseachuiette Coastal Zone Management Program eoU File Ho: 02796 It ti my judgement that the draft environmental impact report sub- mitted on the proposed Masaechusetts Coastal Zone Management Programs Submitted ty: Coastal Zone MFnaement does adequately and properly comply with the reaquirements of Hassachu- cetts General Laws, Chapter 30, Section 62, the Massachusette Environ- Date Received$ October 14. 1977 mental Policy Act (HEPA), for the draft report. The review of the draft report engendered substantial public and agency comment during Project Identificationt Proposed HMaseehusette Coastal the review period. Nearly 500 persona attended . the five hearings which were held and close to 100 agencies and persons submitted writter Zone amnaaement Program comments. This level of public participation Is welcome and is one of the ost important aspects of the draft impact report review process. Appropriate responsee should he included in the final.report to all Sermain and timely received comments on the draft report. Y . " g -U - g 7 4 \- In addition, I should advise that a bill currently in the Hessa- DATE D.." -..._ F..\I. HPHt, EREAU chusetts legislature (5-1980) will, if enacted, significantly amend th ECREAassachusett Environmental Policy Act (HEPA), Massachusetts General Laws, Chapter 30, Section 62. Enactment this aession should be anti- cipated and the final environmental report should include at least an aPnl/MIIoa Appendix indicating how the changee in NEPA will relate to the proposae cc: AttorneyGeneral Coastal Zone Management Program. The HEPA staff will be available to adviase CZM on this question. .�~ r~/,UNSllY~Wd&AJfO~4iel -2- j finally, the draft report inaccurately characterises the current utatus of the proposed Route 23 extension around buttermilk Day in PlymouthWareham and Bourne. At page 11-29. it is stated that this project "has advaiiced beyond the environmental studies and design de- '16*"I"'"'AZ1 4 velopaent phases...." This is not the case. .As of this date, no NOV final environmental impact report has been submitted for HXFA review and declared in compliance with the requirements of KEPA. I under- COA31AL 19HE MMI-AkU14,111T stand that WIPA compliance has not yet been finalized either. The November 2, 1977 final report should correct this statement. I look forward to reviewing tho final report when it is submitted. Secretary Evelyn Murphy Executive Office of Environmental Affairs 100 Cambridgea Street KFHWWr~lltarm Boston, Massachiusetts 02202 ect Attorney general Re: Coastal Zone Management Plan Dear Secretary Murphy: Tile Massachusetts Historical Commission has reviewed the Hassacilusctts Coastal none Management Plan and the Federal Draft Environmenta.l Iplaoct Statement for the Coastal Manageiippmlt Plait. Enclosed is a copy of oGllrWM_%pnt3 on tile Draft EIS whichi, also pertain to tile two vollnte 'i7te documcnt'TTt we feel that the CZN p'lan canl provIde an. important menas of protecting and ellnanCing the Ftltet'S cultural~ re'sorces, the plan aa outlined d,,oeq not adequately provide for anly cuotdhin;atioi, with our i "IiiapitAon. B'lie Iand expansion of tile Hatiol-al Register, local historic districts, and our statewide inventory ofI:iAtorle properties. I hoope that the attached romments will be helpful to you in developing this program. Thank you for the opportunity to commsoent. Sincerely yours, Eli Ia ItitI, need Amadon Executive Director ,, � ~naacla Htts IrtfitIcal. Commilsslon State Ilhitoric Prsavrv;t1tIo Offirer EIMIA/II:Ileted (.0 TOWN OF WAREHAM ErVED BOARD OF HEALTH CITY HALL 0 CLOUCESER � "ASSACHUSETTS BOARD - 295-0807 WAREHAM, MASSACHUSETTS Nov. 21. 1977 SEP 27 1977 AGENT - 295-2366 SENT 29236 COASTAL ZONE MANACEIMNf September 23,. U.i,7qf!!r. ,, irlnfnls IlfilIt-! Mr. Mark Kaufman Mass. Coastal Zoning Management Executive Office of Executive Office of Environmental Affairs E00 Cambridge Affair 100 Cambridge St., Boston, Mass. 02202 Boston. MassachuCambridge Street Boston, Massachusetts Dear Sir: Attention: Russell Sylva, Assistant Secretary The Wareham Board of Health, after due deliberation of the proposals contained in Volume II of the CZM Program, which would provide land access to Long Neck Beach and Stoney Point Dike and develop the latter as a public beach, herewith states The Gl that it is unanimously opposed to the entire project, not only The Gloucester City Council at its regular meeting held on September 13, that it is unanimously opposact on the existing environment buo 1977, voted to adopt the following resolution by Couhcillor John p. Bell: also on the wildlife that inhabits these areas. ORDERED, that the City Council adopt the following Rssolution Due to the wetland areas and the high tides which overflow these and forward sameStr e utive Offie of nvirston areas any proper sewage installations would be remote or non- existant. Human wastes can carry typhoid bacteria and the pollution of the waters and nearby shellfish beds from this and Tha t the Gloucester City Council, n conjunction with the Mayor, hepatitis is a matter of concern to us as a Board of Health. thge roerlyties with e jurisdie of ter-s waterfront especially those properties within the jurisdiction of th3 City for development Therefore, we strongly urge you to serinously weigh the possible of commercial facilities for offshore oil drilling. Such development detrimental consequences of this project against any undertaking Gloucestert inner harbor for frendcprivate programs to develop Gloucester's inner harbor for fresh fish docking, processing and vessel support facilities. Further that the Federal and State does We are very much opposed to this proposal as outlined in your not encourage oil developmnt within Gloucester harbor. program for the above reasons stated and hope you will consider This order was adopted with the following amendment: the overall impact this project could have on the Town of Wareham. Refer to following sentence in Coastal Zore Management Document page 14 under Citizens Concerns of Section 21 entitled Gloucester Inner Harbor. Yours very truly, - "Citizens are interested in developing water-depndent activities on the Mn A. _l ;n s waterfront, in improving the condition of the fishing fleet and support JoHn A. Kelenosy, Chro. facilities, and in developing commercial facilities for off-shore drilling." Board of Health Above Council comment is in direct reference to this sentence contained in the document. cc: various boards Yours very truly FJK/h CITY CLERK (1 o TOWN OF IPSWICH civ0 7 IPSWICHt. MASSACHUS.ETTS 0193&$ 9E 14L0]7 OC? fsmE ,~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ofR O sowna, OfBr 394-Ml0 Zorr37. mcmive SECRETARY 3BOARD OF SELECNohIEH l"70 971'Ok South Dennis, Mess. 02660 3!,';I't l ?n . . . November y14J 197So December 12, 1977 T 2F HEAL0 H BOARD OF 1155155 ('4 ~~~~~~~~~~~~~~~~~~~~~~~~~~~3940955 Massachusetts Coastal Zone Management. Mr. Eric Van Loon, Director Coastal Zone Management Program Executive Office of Environmental Affairs, C o e n ment Aa lO0 Cambridge Street, E xcOf ieoEnrnetaAfis 100 Cambridge Street, 100 Cambridge Street Boston, Ma. 02202 oston, Ma. 02202 Re: Policy 13 - Visual Enhancement Dear Mr. Van Loon: Dear Sirs, The Fassachusetts business and legislative communities continue mysteriously loathe to admit that good appearance and prosperity have historically gone hand The Board of Selectmen of the Town of Ipswich wish .in hard. The historically oriented urban renewals in Newburyport and flew Bedford attract both local and visiting money - by appearance. The Chatham Fish Pier to go on record as being in support. in general, of the .does a thriving over-the-counter business - by appearance. Nantucket is perhaps the most affluent tourism enterprise in the Commonwealth - by appearance. New Coastal Zone Management Plan, which will protect and Orleans' #1 economic asset is the port, but its #2 is the Vieux Carr6 - by Coastal Zone Management Plan, which will protect and appearance. The examples are endless, and as local and specific as the banker who chooses his tailor to attract money to his bank or the Representative buying preserve our natural resources along the coast. his 3-piece suit the day after election. I am personally convinced that the long-time (100 year) economic resource of much of the Commonwealth and certainly of its coast is tourism - the continuing Yours very truly, recreational appeal of historic shrines and glorious water within a day's drive of a third of the nation's population. . Cape Ann will not move to the Sunbelt unexpectedly some Tuesday morning, nor will Lexington or Concord or Walden Pond. IAKi~~~Qe 42*8t~~~ ~Accepting tourism as a major and non-eroding income source, the protection and expansion of visual assets along the coast becomes good, hard, tight-fisted ~~Merle R. Pir~entel~ ~Yankee common sense. Merle R.. Pimnentel Chairman I believe it should prove feasible to allay industry's fears that they will be either banished or compelled to put cupolas on 500 ft. smokestacks. As the CZM text clearly states (pp 140-142), industrial installations can have an ambience of their own in the coastal scene. Canal Electric is in no wise integrated with the surrounding Great Marshes of Barnstable, but neither does its presence destroy or even impact very much on those marvelous marshscapes. On urban waterfronts, the whole fascinating complex of water in use can become a maJor visual attraction at very little cost, either public or private. Coming home to Dennis on Cape Cod, much citizen energy was devoted in 1975-76 to inventorying the town's natural resources, under the direction of the U. S. Soil Conservation Service. One of our projects in that program was a Visual Preference Survey of more than 100 random people around town. General concern for natural landscape preservation and for fitting the built environment into its setting was clearly demonstrated in this exercise. As a result, the town's Design Review Panel has been revitalized to influence commercial design, its Historical District Conummissions have been cautioned to continue their rigorous review of the "fit" of E. Van L oon ~~ 2 December 12, l97T Remairks re CZ.M Plan Content M~ary Hood Vagler n visual N~~ovember 17, 1977 strct1~S ntother srrondigsa citizens' committee is at wiork onvsa probemsof he out 28commercial strip, another citizens' conriittee is prbevisinf the sinRoute, and the Planning Board and Conservation conmission I n l my Personal opinion, CZ14 19 going to harm the Cape just about an are actively discouragikig blacktop parking. The departmentsokfradt rciig the CZ14 guidel ine handbook at the earliest Possible moment'101a hNtinlSaordd. To summanrize, I believe I can speak not onyfor myself but unofficielly for Lo ttecnet all the major regulatory agencies of the Town of Dennis in heartily endorsing Policy 13 and the CZ1-1 program's concern for visual enhancement of the coast. To put it In the vernacular, that's where the buc ks are and vill continue to Policies IL ad 82- Poetcaaminimshes thorep terfosodn ~orig be. oiis4ad8-mnzshr rsn Sincerely, ~~~~~~~~Policy 7 -Money for expanding the fishery. Policies 5 and 18 - ?&,ney and more sytesatlot approach for dredging. Mary, Hood Ilagler. PolicIes 28-33 - A varlety of attempts to Protect us from Big Oil and Big Electricity Pbolet4.6 -Money for urban redevelopment In coastal cities, like Hyannis, Aren't theme the very things that our-towni. Invest days and weeks of time end energy in every year, trying to bring about? * Attacks I've board are on Policies 13-16, Visual Environmsent, which are only "encourgaement', anyway. Our Legislature hasn't noticed, apparently, that appearance bee historically equated 'with and contribated specifically to prosperity. And nebulous complaints from the Some Builders Association, In lisle vith their stassce that every regulation will fliEng them Into bankruptcy.. Siasce I don't see any policies which seen to impact our single-femily home kkillderm, I'm forced to 'write it off to reflex. And "Somie Rule,* of course. In my observation, this fine* old phrase has been bolderisod Into admetbing politicians shout-to messesninsctern to special Interests. True home rule Ian basis ever-run by, provt - of population and teoheclogy and big governmsent. w~ome control" to the phrase I prefer, and I 'believe It can be preserved for a good many years, by skilled and reasonable negotiations. Serious 'work 'was done an CZM In Its development stages to assure that its actual processes - the points 'where the program meetis our people and our places - remain In home, control. I believe they do, to the beat of the abilities of responsible citizens and the cooperation of the state and federal (a3 TOWN OF MARSHFIELD -- Pli HVeg COMMONWEALTH OF MASSACHUSETTS02050 t SEP 19 1977 A t � ~i 84 ~Massachusetts Coastal Zone Management - Public Hearing ,~,SALM ZON� A ..~~ e" .0 I/ONEye. Aot ENT Cape Cod Regional Technical High School Afairs el PatOFT ofF ,November 17, 1977 PLANNING BOARD September 12, 1977 The following statement is entered into the record by the Brewster Conservation Commission- Mr. S. Russell Sylva The Brewster Conservation Commission wishes to express ~~~~~~~~~~~~~~Director t: > \" hsupport for the Coastal Zone Management Plan, and to record its Coastal Zone Management opposition to House Bill 6687, recognizing that this bill would 100 Cambridge Street paralyze the etfforts of the Office of Environmental Affairs. Boston, Massachusetts 02202 Subject: Massachusetts Coastal Zone Management Program Dear Russell: Brenda J. Boleyn As a member of the South Shore Citizen Advisory Committee and the Marshfield 4 LV. Planning Board, I should like briefly to commend the CZM Staff on the final associate member Coastal Zone Management Program. In particular, I do want to note the ex- Brewster Conservation Commission cellent work of Margaret Reynolds who worked very well for and with our group -- a group somewhat cynical and suspicious of this State effort. 438 Freeman,'s Way Brewster, Mass. The CZM Staff have managed, via the networking system, the Memoranda of Under- standing, and the using of existing laws and agencies, to produce a compre- hensive plan without creating another layer of bureaucracy. It fits into the State's efforts to streamline the permit process. The Plan recognizes the tradition of strong local government, but has also deftly balanced the local issue with regional and State concerns. It provides the beginnings of a ra- tional approach to issues that cannot be isolated, or are confined, by town boundaries. While I have personally been opposed to any new legislation or an expanded and/or additional layer of government, I do have some reservations about the workability of the MOU's, particularly with the E. F. S.C. It appears that federal consistency is mandated by the Federal CZM1 Act but within state gov- ernment only the unenforceable MOU's provide the means for consistency with the CZM1 Plan. At this time, though, I am willing to support the concept of MOU's, but I would suggest that within two years after implementation begins that an evaluation be done on the actual effectiveness of the MOU method. Very truly yours, Mareito M. aor s Vice-chairman mmm/jp Copy to Margaret Reynolds r. s. Russell Sylva TOWN OF MARSHFIELD r� age 2 COMMONWEALTH OF MASSACHU EVE D eptember 14, 1977 18�rE fi9 1Z SEP l g977 in the lines of communication between agencies san a!.ell ns result in mtich needee i.nl.enentation OFFICE OF THE / ZOe g,. t MANAGgMENT of presently existini lawl and rules aed rcj;t- PLANNING BOARD / \V f"tn6-qrn 4g;tl latioi.". .Jeuteaber 14, '177',7 do, !:o;i.^er, L:cv,; ZO-;' n r;0nltions ;:'icC^ I be!.ieve .:ill i:::'rove 'lan as presently proposed: 1. I feel that the Plan does not tah:e into account mTs ;. e:-ollo S,-an the very renl. potontial of new techknolor- in the i*-eotor field Or wa- '.eu'stCr :iaal;aent. It see:s t;:at Coastal Zcone Manarement many of the judgments about the impacts of sewage treit--ant plants hnve b-en ',:zed on ou-r npst eu:- 'lanton, arssnchusetts 02202 perience with prinary treatie.ent. ;:any of our e:-istin5 treat:uenlt ;lants are upresntl- t ei;!s; fDlr 'r. ;Slva* upgraded to secondary treatment requiroments in the coastal zone . Contrary to popular belief, I ean w.ritinn this letter as the Chairman of the Marshfield Planning secondary treatment, when compared to primnr.- ?,oard and as the liarshfield Board of Selectmen's representative on treatment, does provide for significant reduc- the Co.n.tsl _o-e l:an.a:.;ennnt .outh Shore Citizens Aidvisory Committee. tio:- in nltrie" ts nnl to.:i.c :;stnco3 a we.ll as reducing both biological ox-.gen demand and T r'ould liLe to bein by saying that I believe that the Massachusetts suspended solids. With the addition of multi- ;;Jeoastai on- ;ans;;eenr.t Clban as presentod is basically sound and re- -dia. -itatuio. o effl te r ?r eltion fl.ects-an- overall understanding of the problems and conflicts, but of suspended solids can further contribute to re- more importantly, the enormous value of our coastal area, ductions in baterial and viral levels. There is in fact a debate presently being waged in both .After a three-year effort, I feel the CZr staff has produced a plan the scientific and enmineerin r com!nunities about which is reflective of an honest attempt to be responsive to citizen the necessity for providinu any m ore than prtdary n'i;nt ?Z well as input from a wide ran-e of special interest -ronnups. treat0nsens for ocen outfa!!s w chich nre D loned in i - iep;enr.l;h -ush;ers wi'. adeauate currents for di.p,nrsier ilan. of the concerns which were expressed by me and others during the of the effluent. development of the Plan have been addressed in an acceptable manner in the proposed Plan. Of major importance are the facts that: While not comme nting on the outcome of the debate, I would like to su-.;est that the CZM Plan fails to 1. The CZ1, Plan does not create a new and burdensome recognize the fact that current researe}h indicates layer of bureaucracy with which citizens will have that there is a very real potential to beneficially to deal. 'Instead it uses eh istinC, govornmental impact the productive capacity of wetlands (inland agencies and existin g laws as tools vith which it and coastal) by the application of properly -treated aencies and existing laws as e tith wrh fill !attenpt to accompnlish its mananaement objectives. asizonnr.i- :nifiaesant er whsie t ee s lme ti.eh re- alizir:: si:nif'icant on!er.:? stviJ1.. rnq ;:-l~n s hould P. The Plan is stra3i-ht-forwnrd in its recognition of take into account new technologics and resecarch in the :.o : rule concept, 1nd it !c.ves t-e ol:!,ers of. ot . "' 'o .';.i zoning and other land-use controls to the cities sewa,;e treatment plans in AlI's or elsewhere. TTo- and to onra w aen dealin, witrh issues of local vision should be made for accept.ing future facilities ficance. if research can positively demonstrate that they will have no adverse impacts on the ecosystems into which 3. The Plan also recognizes the value of providian- a they discharge. i']r7C - f -,,-i, . 'o.? o': . D :.:: : : ...: in tfnt; i-; will fund both personnel and projects for these other ag-encies ar they; deal with their 6 own jurisdicti.onal purviews in the coastal zone. "this ac.tivity i. ll cre.ato :s-Linificant :;nprove:!:nts 2. BOARD Or: SELEGTIN~ JCEIVED We also ask you to promote maintenance dredging ~='.-)~:!~;.3 Town Hall in the Essex River to help us achieve these goals. ESSEX. MASSACIIUSETTS 01929 SEP 2.9 1977 Your cooperation in this matter will be greatly CO~A ? appreciated by us and ultimately by the citizens of September 27,Et Z.0N A ;lcGt Essex. Mr. S. Russell Sylva / Assistant Secretary of Environmental Affairs Very truly yours, Acting Director Massachusetts Coastal Zone Management Program 100 Cambridge Street , Boston, lMA. 02202s G. 'eans, J'A~.~R~tus G. Mfeans, r. /.--.-. BOKRD OF SELECTI-EN Dear Mr. Sylva: I enjoyed hearing your presentation last Thurs- A day (Sept. 22, 1977) night at Gloucester City Hall. The meeting was both informative and educational for me. The Coastal Zone Management Program will be of great impact and effect a better relationship between citizen and government. At the Board of Selectmen meeting Monday (Sept. 26, 1977) the Board voted to request that the follow- ing lines be removed from paragraph 17 on page 12 of the Upper North Shore section of "Chapter 5, Mass. Coastal Regions and An Atlas of Resources:" "In terms of recreational boating, citizens feel that the Essex River has reached its saturation point and they do not want to see more marinas or boat ramps built. Some people feel that the river needs dredging but many others feel this would only increase boating traffic and sedimentation." Our reasons are several. First of all, as the Board of Selectmen we have asked the Army Corps of Engineers to investigate and study whether or not the Essex River does need dredging. We are concerned that the Essex River is filling up with sedimentation and run-offs from the surrounding mud flats. The river has reached the stage of impassability at minus low tides - and getting worse. The marinas and dock yards contribute much to the town and their continued existence is of importance to the towmn. Secondly, the Essex River has a great historical background as a shipbuilding and shipyard community and we would hate to see the old shipyards inaccessible. Thirdly, paragraph 17 also makes reference to improving the town ramp and p:rP:ling area. These areas are dry at low tide h'ercese of the river's ill-vp with 4i u.i and sediment. Mr. S. Russell Sylva Pace 3 Septefaber 14, '1977 sr. so Russell Sylva- geptember 14i 197? 2. Tllro plnln convnZ-;o ,in hl"Orr,�t tacit ncc,~Ptnnc-t of off-shore mining of sand and graveX. One of the areas iar.nti-ried by the Rtiheon St-dl' and explored by tile ,jtate lies right off of tecoizinG the reeds and desires of' _'ritircat -=ouns who thE -iol21`,j of Mae. iobrt, a-nd ;outh 3i~eo5. lhejo i fited trr:,:zs1.'e jfl C-OF-- nit in this vital area. I hope my TiV~r BIS~FODOcd fr dC)eiJT~tio as a 1'7~%c;Pti~o~s e Flnn wJ~aI ill be incorporated,~ and I would urgel r_'eru are pro,,.sed for desi.3nntioa as oh A'_- ~,reztions n !U- ~i~f '?or~;: cir~r ic p ure-Se.tl~i tha i~tat;~' ~ U� G� ~~Cr~tar~r o~ Ceirce ,rp- to api.rove the lacr. pilot project under the Snenio 'Rivers Actd I would urge Thes6 rivers have also dust recently been des- V truly yours:1 ignatad as a 7;atjongl !1tural Landm'uark by the U. !,. -Jernrtnent of Interior and will be non- itorved eaege 5-ear to insure that they inintoin the character appropriate for this highly de- 4i113.em C. Finn si~rblc ,t aitci7'i na of nntional snirieance. lhnirman .lr-h~iol' in.d o h,-, extensive experience with Wnr/jr lanna-based sand and gravel nining end the prob- lens associated with it. It is hardly con- ceivable that these operations when trenafered to the marine environment will not have signi- ficant adverse i-1pacts which wcould cause considerable controversy. I would su-ggst that this section of the CZM Il-n be subjoct to a :-ire ri oroou! review end that or"_1 utrin.:ent approval criteria be developed with regard to potential operations. The CZT4 decision to "accommodate" these operations at this point iin time, given existing inadeouate information recgrding potential impacts, should be modified. F~hi&lly,1 T aimould lines to encourl~e the C21* staff to investigate more thoroughly the potential to create wetlands using dredge spoil material. I only found a one sentence reference to this po- tential and in my judient, it deserves far nore consideration as a possible answer to some of our real problems associated with dredge spoil. The lDredGed Material Research Program being con- ducted at the U. S. Army Engineer Waterway Ex- periqent I!tntion i.n Vi.ck1:b'.r-, Virsinsslpi has Thr-s'�ntoid enco'ara, in7 results in this crew atd I feel these should be given more exposure in -! ;.; r-. ~oe;~ cy coa,:-ents in this letter are of a general nature and designed to present ny overall feelings about major areas of consideration. I aloo have no:ne minor points which I will raise at the South shore Citizens Advisory Committee meeting oh September 15, 1977. In closing, I feel the CZUI Plan as developed is responsive to the (o needs of the general public, both inland sind coastal, as well .s TOWN OF MARSHFIELD COMMONWEALTH OD MASSACHUSETTS 02050 SP19 17 "X~~tONE ImNAGa"Pt '?r OFF'ICE OF V14E PLANNING BOARD -epte.ibor 12, 1977 V Er. S. Pussell Sylva R~rnctor , j Constal "Uone IKanace.-aant '100 Cambridge Street .,ozton, !.'r~cnclisett;3 02202 .Zubject, I'assachusetts Coastal Zone lnanagement Iro-ram ~ Dear izussell: Ao a member of the South Shore Citizen Advisorr Corwmittee and the IMarshfield -1 nnn ',oard, I hould 1i' e briefly to com.-a-and tho G- I staff on the final Coarts). Zone 'Ianagernent Prograni. In particular, I do want to note the orx- - cell-:nt work of FKar'aret Reynolds who worked very well for and with our group __ ~ ~ ~ ~ <~ a- g;roup so:~owhat cynical and suspicious of' this State effort. The CZ1N Staff have managed, via the networking systemn, the Memoranda of Under- standIng, and the using of existinG laws and agenciles, to produce a compre- hensive plan without crenting another layer of bureaucracy. It fits into the Statels efforts to streamline the permit process. The Plan recognizes the tr'-ditior of stron,- "ocal -Govern.ent, but '.nz Alto deftl-, bnThncod tbe lo-nl issaue withl re.-ional and itste concerns. It provides thre beginnings of a ra- tionnl approach to issues that cannot be isolated, or are confined, by town hli boundaries. 'Chil e I hnave personally been opposed to any new leg~islation or an expanded arid/or additional layer of government, I do hnave some reservations about the workability of the HOIJ's, particularly with the E. F. S.C. It appears thot federal consistency is mandated by Lhe Federal CZN- Act but within. state gov- '11- ermnent only the unenforceable HIsprovide the means for consisteney with t":! 2J At t~ii %J )1-1 17 oCIPr tke concept of ' ' tha-t an evaluarion be done on the actual effectiveness of the !Cul xzIcubod. Very truly yours, ~<7*;[ Copy to MIargaret Poynolds SOUTHEASTERN REGIONAL PLANNING AND JlUU 13JI- \ ECONOMIC DEVELOPMENT DISTRICT �,j ~ 7 BARNABAS ROA,. MARION, MASSACHUSETTS 02738, Tel. (617) 74R.2100 ,,LCE: ..VL-D November 9, 1977 [;!f 1 I 51077 councils without authority do not provide adequate assurance Director os.A LE g;Nj^ .-,! of such partnership. SRPEDD believes that local officials Office of Coastal Zone . . can be made partners in your "networking" decision-making Management process without creating a new layer of government and that Executive Office of both sides and the program would gain from this. Environmental Affairs 100 Cambridge Street It is recognized that the sharing of power is never easy, but Boston, MA 02202 the importance of protecting and managing our coastal environment warrants major effort to overcome these Gentlemen: difficulties. Your app]ication for S.306 management funding was received at this Sinerely, / office on August 3n, 1977, and reviewed and commented upon by the SRPF:DD Commission under the provisions of OMB Circular A-95 at the Commission meeting on September 28, 1977. It was subsequently learned that your application was approved on Setember 28, 1977, and _Riy .d Fleirent so there was no opportunity for' you and the funding agency to consider Cha rman our comments. SRPEDD In the spirit of close cooperation which has existed between your cc: NOAA OCZM office and this agency, as evidenced by SRPEDD's coordination of the OSP Coastal Zone Advisory Groups effort during the planning phase and by your very thoughtful and well-taken comments and questions about SRP:EDD's draft 208 plan, SRPEDD hereby offers its comments for your consideration, recognizing that they can no longer be submitted as formal A-95 comments due to the disappointingly early action of the AVZ:RF:spg funding agency. It has been and continues to be the concern of SPRPEDD, representing the views of:local elected officials who are Commission and CZAG members, that your management plan does not adequately guarantee a meaningful role for local elected officials in the CZM decision-making process. It is our belief that participation of local, officials in CZN decisionll-laking is essential to the success of the program, since it is the local officials that have major responsibility for local land use and developmnnt controls. State authority extends primarily to coastal waters and certain special or, critical areas or develop- ments, and an effective coastal management program requires a part- nership betwecn the local and the Commonwealth officials. Advisory (q4 W1 eW>1 SOUTHEASTERN REGIONAL PLANNING AND KUUIJ C ! ECONOMIC DEVELOPMENT DISTRICT 7 BARNABAS ROAD. MARION. MASSACHUSETTS 02738, Tel. (617) 74R-2100 November 9, 1977 .10'I 15 I077 COASTAL ZOUE ) councils without authority do not provide adequate assurance Director rats is -:,:., r!r of such partnership. SRPEI)D believes that local officials Office of Coastal Zone can be made partners in your "networking" decision-making Management process without creating a new layer of government and that Executive Office of both sides and the program would gain from this. Environmental Affairs 100 Cambridge Street It is recognized that the sharing of power is never easy, but Boston, MA 02202 the importance of protecting and managing our coastal environment warrants major effort to overcome these Gentlemen: difficulties. Your application for S.306 management funding was received at this Sincerely, office on August 30, 1977, and reviewed and commented upon by the SRPEDD Commission under the provisions of OMB Circular A-95 at the Commission meeting on September 28, 1977. It was subsequently G&- learned that your application was approved on September 28, 1977, and ym"id Fle trent so there was no opportunity for' you and the funding agency to consider Chairman our comments. SRPEDD In the spirit of close cooperation which has existed between your cc: NOAA OCZM office and this agency, as evidenced by SRPEDD's coordination of the OSP Coastal Zone Advisory Groups effort during the planning phase and by your very thoughtful and well-taken comments and questions about SRPIWDD's draft 208 plan, SRPEDD hereby offers its comments for your consideration, recognizing that they can no longer be submitted as formal A-95 comments due to the disappointingly early action of the AVZ:RF:spg funding agency. It has been and continues to be the concern of SPRPEDD, representing the views of:local elected officials who are Commission and CZAG members, that your management plan does not adequately guarantee a meaningful role for local elected officials in the CZM decision-making process. It is our belief that participation of local officials in CZN decirsionll-makirng is essential to the success of the program, since it is the local officials that have major responsibility for local land use and development controls. State authority extends primarily to coastal waters and certain special or, critical areas or develop- ments, and an effective coastal management program requires a part- nership between the local and the Commonwealth officials. Advisory (0q Boston Redevelopment Authority City Hall S-quareC Boston, Massachusetts 02201 Robert F. Walsh / Director Telephone (617) 722-4300 IMs. Cousins Page Two NOV 2 11977 We also feel that a greater area of Boston should be designated as a Special Assistance Development Area. Boston Harbor not only needs to be preserved, but also needs to be restored. The problems are complex since both local and regional uses must be considered, Ms. Kathryn Cousins and they place so much stress on the environment. Therefore, a Regional Manager, North Atlantic Region strong financial commitment to the area is necessary in order to Office of Coastal Zone Management successfully manage the coastal area. National Oceanic and Atmospheric Administration 3300 Whitehaven Street, NW We hope that our concerns for the Boston Harbor region will be Washington, D. C. 20235 taken into consideration under the Plan and are looking forward to participating in formulating more specific goals and plans for RE: Massachusetts Coastal Zone Management Draft this area. Environmental Impact Statement Sincerely, Dear Ms. Cousins: In accordance with the provisions of Section 10Z(Z)(c) of the National Environmental Policy Act of 1969, the Boston Redevelopment Authority herewith submits its comments respecting the Draft Environmental Impact Statement on the proposed Massachusetts Coastal Zone Management Program, rt F. Walsh which has been submitted to us for review. Director In general, we support the Massachusetts Coastal Zone Management Plan and feel that implementation of the Plan should help to protect cc: Office of Coastal Zone Management and preserve our valuable coastal resources. However, there are Commonwealth of Massachusetts sections of the Plan which we feel need to be addressed in the context of their effect on Boston Harbor. Policy #17 as presented in the Plan appears to preclude all other uses except industrial development in port areas. The Port of Boston, although it serves many regional needs of the State, is also a local resource; and development must meet the needs of the City and its residential and commercial communities. In addition, Policy #17 does not appear to meet number (2)(i) of the general requirements for review of the management program which states that the Plan must provide "a clear understanding of the content of the program, especially in identifying who will be affected by the program and how". The Plan does not specify how the residential waterfront communities will be affected by Policy #17. Our second major concern is over the wetlands areas in the Boston Harbor region, in particular, Belle Isle Marsh, Wood Island Bay Marsh, Governor's Island Cove, Pattons Cove, Savin Hill Cove and Neponset River Marsh. The wetlands constitute a delicately balanced ecosystem which can easily be destroyed. We feel that protection of these valuable areas should be emphasized more strongly by including them under the Areas of Preservation and Restoration, )particularly in view of the probable increase in industrial and fuel related activities that will occur in this area. '7' JAEJSTULXeem e/ Omr.4M,9 .t. (79 i;aarb af ~rtImtn TOWN OFFICES 397 MAIN STREET C (617) 775-Hs EL 156.1* HYANNIS. MASS. 02601 MIoSwn Sf JImihgrumtln f~~~~uMW~~~~~~~arr"J e~~~~~~~~~~~~~fi~~~~~~r ?tes;.A/z/sI,>,.~~~~~~~~~~~~~"'L f;,' ?'Fl November 17, 1977 November 8,1977 Mr. Eric Van Loon, Director Massachusetts Coastal Zone Management E.O.E.A. Ms. EveIyn P. Murphy, Secretary 100 Cambridge Street Executive Office of Environmental Affairs Boston, Mass. 02203 100 Cambridge Street Boston, Mass. 02202 Dear Mr. Van Loon; The Barnstable Conservation Commission has reviewed the policies Dearl Madam; proposed in the Massachusetts Coastal Zone Management Plan. The Commission was generally supportive of all the policies. The Board of Selectmen is pleased to inform you that after due considerations and by unanimous vote last night we endorsed your The Marine Environment Section was of special interest to the Coastal Zone Management proposal. Commission. It was felt that policies 1 through 5, and 8 through 12, would encourage consistency among all E.O.E.A. agencies, as well The vote respectfully requested special initiatives on your part as with the existing wetlands regulations issued under G.L. Ch. 131 to secure Federal funds for planning the growth of the commercial sec. 40. This will make the job of Conservation Commissioners easier. fisheries here. Policy number 11, which supports technical assistance in developing non-structural erosion control methods is especially important to A YOU know Provincetown has the longest standing O any ishing areas like Barnstable which has extensive sandy coast lines. Support port in our country. Duringh the lpast several decades our once for these non-structural, non-traditional approaches should save nationally Important fisheries have been dormant, but we have the significant amounts of both public and private investment, while Port in ur county Duringthe pas severaldecades ur oncesignificant amounts of both public and private investment, while rtallent aind a deshare to drmgabout a return r thae good times allowing reasonable use and protection of areas subject to dynamic talent and a de sire to bring about a return of the good times. We alIso have Just about the most magnificent, normaily ice-free forces. harbor on the Western North Atlantic Ocean. *4~~~~~~~~~~~~ ~~~~Policies 7, 17, and 20 are very important to our area. They should help to revitalize the local fishing industry, one of the few industries naturally suited to the Cape. Very trl'ly yours; Very tr~~zly yours; They did feel that policy 21, relative to increasing public access A4~~~1 itf/~~~~~ Xthrough increased public transportation, be implemented by encourage- <gq/7 /J-m~~4S...- TV sment of private enterprise. The taxpayers are already picking up a 7 /too much of the costs for publicly operated ventures which drive George -4. BryantClerk and Member private enterprise out of the market place while operating at a loss. George wD. Bryant'$Clerk and Member P One of our members was concerned that the plan might discourage structural erosion control measures to a point where people would ~~~~~copies to: Edn~. Gaerry Studds ~not be able to protect existing construction. The majority felt it COpteS to: Hdn. Gerry Studds CCPEDC Old Colony PlanniizjC& Barnstable Conservation (Emission Rgoa lnigAec shn a1 oel~aic 232 M,~Sr'l was important to discourage strtctural erosion control except where oC,.~cuI~O4 absolutely necessary, however. I N,~* fJ"**1 Phone 6U' 533 :dJ3 Dissenting opinion was expressed on policy number 3. The opposition Novenber 15, 19T77 centered around the term ~'Clustered'. in Barnstable, as in many coissunities, there has been a long term struggle to increase lot sizes V s. Evelyn F. Murphy in order to provide people with a sense of space and the certainty Secretary that their lot will self-sever and self-water. The attempt to increase Executive Offica of Environmental Affairs lot sizes has also been an attempt to maintain the character Of various 1(11 Caibrid,.c Street communities. Should we then force people to live closer together on Boston. Masc3~et 22G2 smaller lots in conflict to what they really want? Jear Secretary iMurPhy'. The Commission had one last comment an the management plan itself. It is very difficult for lay people to assimilate and properly interpret 1 wout.l like to express the strong s,)~,ort of the Olec Colony Planning Counci documents which utilize technical Jargon so new as not to be found in for the ?jassac;,,SettS Coasta'l Zone Management Program Plan as .)r ospct by the standard dictionaries. 'Infrastructure' is the classic example for Executive Off ica of Environmental Affairs. We feel the cte.t plan approc ..es the C.Z.H. Plan. We would suggest that such verbiage be avoided whenever the problem of how to best manage the use of o, coas-al reno,;.-ces very effacV ~ possible in documents with wide public distribution. ;.nr searioly through policies, act-ions and initiatives sw _h cun be i.nplemnented at ~-ip 'Cocal, regional and state levels. The flarnstable Conservation Commission also discussed the somewhat controversial cape Cod boundary question. The Commission voted, 4 to 3, th(,re arr three! Old Colony Planning Council cona, ; a, are contained to endorse the boundaries as proposed, i.e. that the entire Cape should wtithin the Cv,.,tai &,ne, Kingston. oembroke and Plynieutn. we, iure extru;.,.ly interesta'; be included in the Coastal Zone. Those in favor of the boundaries 1, wo6.'inr, with the Executive Office of Environmental Affairs and these member com- quoted water quality issues and a need for regional planning with a ini~tC illvxliniq with specific problems and oiuportunit-es i~,&-,-fi(!d as SPec4-l consistent set of regulations. Those opposed to the proposed boundaries A;5is-ance Develcomvret Areas in the Plan. The Couocil fec-ls it can ccO much to insure felt that it would unfairly regulate iolne areas away from the coast, t 1 Lkitinunrd VillhIcny of the Coastal resources within. t,_,c 1:.;,ds tqith the coG 'er- itself, and that the program would set up another layer of bureaucracy. arior af loch' officials, the Executive Office of Enviror.;~crtal Affn 's and ocher They suggested that Route GA and Route 28 be used as boundaries. riIe.x;n Sincerely, ,v 1_jk forwara Io working with yctu in the fimplamentati,)r - his ,.rogram. Arlene M. Wilson VeAtuyyun Co-Chairman refusa l ~ . lh.. ltm. Crane - ranricuive Director C:: (IC latI.;. Hill Alternates, froM Kio.gs ton, Pembroke. Pjyemouth cc,- Richard Loring, Rep. Tom Lynch -Sex1. 3ohn Aylmer AtA'/dm 73 Mr. S. Russell Sylvi -2- November a, 1977 Metropolitan Area Planning Council INiap 44 In reviewing the prepared Environmental Assessment Form the Council 44 School Street Boston, Massachusetts 02108 cannot agree with the preparing officer that the CZM proposal requires an environmental impact statement. The CZM proposal, if anything, would serve Carl. .Johb, to protect and wisely utilize the state's coastal resources. CZM is :.e *ri e ori- 11t7 9l23-2454 only proposal available on coastal management: granted it needs ongoing refining - but it would be short-sighted for those of Mass. who rely c- our coast in many ways to opt for no plan at all. We must begin with this and continue to correct and refine it. To require further delay and cost =a prepare an environmental impact statement would be a disservice to the State's residents and coastal environment. November 3, 1977 Comments from MAPC Representatives in coastal communities will be forthcoming. Very truly yours, Mr. S. Russell Sylva Executive Office of Environmental Affairs ( 6 100 Cambridge Street Boston, Massachusetts 02202 Carla B. Johnston Executive Director RE: Review of an Environmental Assessment Form pertaining to the adoption of a coastal zone management program for CBJ/cg Massachusetts. (Project description Mass CZM EOEA # MAFPC EAF-78-5. Received October 18, 1977) cc: Mr. John T. Beagan, MAPC Representative, Ipswich Mr MHichael F. Davis, MAPC Representative, Essex Dear Mr. Syl;va: Mr. Clayton R. Carlisle, MAPC Representative, Gloucester Mr. Nicola A. Barletta, MAPC Representative, Rockport In accordance with Chapter 30, Section 62 of the Massachusetts General Mr. Condon McDonough, MAPC Representative, Manchester Law, Acts of I972, the National Environmental Protection Act, the Metro- Mr. Richard St. Laurent, MAPC Representative, Beverly politan Area Planning Council has reviewed the above referenced environmental Mr. Wayne P. Marquis, MAPC Representatiye, Danvers assessment form. Mr. W. Gregory Senko, MAPC Representative, Salem Mr. Richard Riess, MAPC Representative, Marblehead Two issnes remain to be dealt with on Coastal Zone Management (CZM). Mr. George B. Thomson, MAPC Representative, Swampscott One is that citizen and local official participation and public information Mr. Kevin R. Geaney, IMAPC Representative, Lynn must operate at an escalated level in the months ahead to insure that persons' Mrs. Polly L. Bradley, MAPC Representative, Nahant concerns about their communities are responded to prior to any implementation Mayor William Reinstein, MAPC Representative, Revere of the plan. In some cases this may require modification to the program. Mr. Richard D. Dimes, MAPC Representative, Winthrop Public confusion must be alleviated over the concern for individual case re- Mr. Paul van Hamm Wiers, MAPC Representative, Hull views and balance of economic recreational and environmental needs. People Mr. Lars Rorman Lundin, IAPC Representative, Quincy need to understand how and where their concerns on these items can be part Mr. Nathan W. Bates, MAPC Representative, Cohasset of ongoing assessment on a case-by-case basis. Dr. Carl E. Pipes, M.APC Representative, Scituate Mr. Joseph Beals, MAPC Representative, Marshfield It is the Council's position that the proposed management plan is conr Mr. Edmund A. Dondero, MAPC Representative, Duxbury sistent with the goals and objectives of the region's 208 water quality plan. Mrs. Ann Connor, MAPC Representative, Hinqham Also, the management plan as proposed would assist in the implementation of Mr. Robert S. Lang, MAPC Representative, Weymouth the Council's 208 water quality proposals. Further, the Council in Volume I of'its Regional Open Space Plan has Continue on page three clearly supported all state environmental regulations that the proposed CZM plan inter:- t., utilize as the basis of its management program. e (, z ax h Ps. > lb LA..' D Dimes Robr.,% l. ch,.. HUyA Kt.F.. y l*eVi,. P,.seni Soecrtoey Tt....ue 9y Mr. S. Russell Sylva -3- November 15, J.9'('[ November 3, 1977 cc: Ms. Gail Rot. Pr PC Reresentative, Boton Would like to mention that everyone has worked very hard for several years Mr. Joel Lerner, itPC Relprerenstable, Chelsea in formulating the policies which we thought would be workable for Freetown HHS ~oege B. Bai sey, PC Repeentatve Sharon Seretary Evelyn nervaton Service and the M1ount Hope Bay Area; but before the Town of Freetown can approve the Ms. Mauren Ftuynves Office of Sx~.utate Plne of Environmental Affairs CZM Progam, e would like to hare all the policies translated into the regulations that will have to be enforced by our'Conservation and Planning Boards. It is impossible for our Town to track down and run all over to check on the development of these regulations since we have very few full time employees. As Chairperson of the Mount Hope Bay Coastal Zone Advisory Group, I would like to mention that only 6 - 8 people participated in our area committee and I am not sure that policies are fully supported by the general public. Development of specific regulations would help others to decide whether or not they are in favor of the program in its present form. The Town of Freetown would like to have an impact hearing on the regulations before the C2M Program is given final federal approval. The impact hearing should be widely publicized and open to the public. This would give us a better working knowledge of how our Town will be affected by these regulations. Once the CZM Program is approved there should also be periodic impact hearings to keep everyone abreast of any future new regulations being enforced. Cecile J. Montplasisir Representative for the Selectmen of the Town of Freetown Ce of 4C lr~ of viftld~ TOWN OF WAREHAM PLANNING BOARD Office of Economic Development PANI B c WAREHAM, MASS. 02571 . ,r~ ^WAREHAM. MASSCHUSETTS 02571 M. Teapht (sin 2e9MM Ede"-Nn 25 -I.- atI ott it touch with fr e" our l)o3t -- November 15, 1977 tbvesber 15, 1977 Office of Coastal Zone Management National Oceanic and Atmospheric Adm. Massachusetts Of asta zone Ma nagemnt . Attention: Ms. Kathryn Cousins Executive Office of Envirofmantal Affairs Room 3280 100 Cambridge Street tarRom38 t100 CaMubridge Street 023300 Whitehaven Street, N.W. Boston, Massachusetts 02202 Washington DC 20235 S~~Ql~~? Polx~~~t ~~ Washington, DC 20235 Fe: Stoney Pohnt Dike Gentleman: Dear Ms. Cousins: The Town of Wareham's office of EmxmcY DIvelopment has been actively We are writing in regard to the State of Massachusetts involved in economic planning for two (2) years. During this time, projects Coastal Management Draft Environmental Impact State- and proposals designed to inpact the economic growth of the conmrity ment as presented in Volume II for the Buzzards Bay have, from tie to time, involved ou coastal zone. area. area. This office has recently reviewed the conclusions contained in te The Wareham Planning Board is not in accord with the Coastal Zone Management study. We noted with particular concern your CZM Policy Number 22 and Number 25 for the area in suggestion for development of Stoney Point Dike. The development of Stony the Town of Wareham. The Wareham Planning Board, at Point Dike is not a part of any town plans and should be discouraged. a regular meeting, voted not to endorse or approve the development of the Stoney Point Dike (Item No. 31, Providing land access to Stomey Point Dike by purchase of an ease- page 146) and the development of Long Beach (Item No. ment to the beach would create puoblemo of sewerage disposal and ainter 28, page 146) as major public or State beaches. nance of the beach and related facilities. It u31d cause a financial burden to the rommusnity. We especially feel that the development of the Stoney Point Dike as a major State beach would not be in the, This office would oppose any reouavendations to develop Stoney Point best interests of the Town as a whole. The area con- Dike. tains many acres set aside for wildlife and the dike itself is at the end of almost two miles of narrow dirt ~ery~ truly yours, ~roads through private property; thus construction of \ !r ~r cosiderable public ways would be required through this -Sf( ,. ( -{ a-. area of fragile woodlands. 'J~~~ ~ Stoney Point Dike itself is actually a breakwater composed John F. Healey, of large rocks and dredge sands which is not a particularly good beach nor does it lend itself to being developed into Eomonic Development Director a beach because of its configuration. One side cannot be JRTVayh used since large rocks line it on the Canal side where currents are strong. The dike is used by boaters who go there to swim and picnic. However, Wareham has a total of approximately 56 miles of beach and shorefront so if public beach development is contemplated, much more easily developed land area could probably be found in Wareham. (continued) A BICENTENNIAL COMnUNITY 76 'ARD 7. 4HAP.RRINCO THOMAS P rNHyPA.CKER II THORNP W. CAMP, LL.. JR. page 2. ETH=7, mmi It should be pointed out that the Wareham Master �be.e. and eio ~(- - Plan of 1964, which is still in use, set aside the Stoney Point Dike area plus all the marsh land in town as "Open Space." It in significant that the Stoney Point Dike is the only solid land not marsh in Town that was thought should be in- Novemrber 17, 1977 cluded with the fragile saltmarshes as Open Space. We feel that the development of a major public beach on the Stoney Point Dike would be very poor planning indeed and not in the best interests of the townspeople. At a regular meeting held by the Board of Selectmen on Tuesday, November 15, 1977, the Board of Selectmen of the Town of Chatham voted unanimously to endorse and fully support the concept of the Coastal Zone kanagement Plan. Very truly yours, ~ ~~ep~Jt-f~6~e~,;CLI-b~ The Chatham Selectmen also strongly recomraend that the boundaries Wareham Planning Board '-nDI,,^XT'/ /^ yj -jL Board of Selectmen 7? everywhere in our town. For these reasons, we would like to see all of the town T-O-~-N OF BOL.JR?~of Bourne included in the coastal zone at this point. We make this recommendation TOWNT COFBOURNE% BOARD OF SELECTMEN with two strong caveats: 24 Perry Avenue BARRY H. J.naovi vo.,,,,.,, BUZZARDS DAY,.MASS. 32 I- .That the CZM Advisory Committee to the Cape Cod Planning and IENlKrf H. Ti 0-48 ll NIA" ROBWT w. rORN ~ G,48eo,?M ROBE'rT W. PARADY ~U.. YeR.448R ~Economic Development Commission and the Commission, itself, play November 17, 1977 a strong and recognized role in the implementation of the Coastal Zone Management Program. 2. That a mechansim for reduction of the boundary to that being used The town of Bourne has been actively involved in the CZM planning process in other areas of the state be established in the event that for over two years. Through local and regional CZM meetings, strong representa- communities find the larger boundary unnecessary or inappropriate. tion on the regional CZM Advisory Committee, and direct involvement in the Cape The goals of Coastal Zone Management are important for Massachusetts Cod Planning and Economic Development Commission, we have had an opportunity and Cape Cod. Coordination of our numerous environmental regulatory agencies, to review the plan development and contribute to its final outcome. The open planned use of both natural and developed areas, streamling of the state permitting planning process has enabled the town of Bourne and the Massachusetts CZM Program process, and technical assistance to communities are appropriate and important, to recognize and respond to individual problems and goals. CZM has presented an opportunity to carry out these goals. Through active local In addition to the planning and coordination goals of CZM, the program and regional participation in the program, we on Cape Cod can make CZM a plan has offered valuable technical assistance to the town. This assistance has that will support and encourage much necessary and appropriate activity in our contributed to economic development, in the area of the proposed town marina, towns. and to recreation and conservation planning in downtown Buzzards Bay, as well as Respectfully submitted, to direct assistance to the Conservation Commission. Towns such as Bourne often BOARD OF SELKLM EN need an expert opinion on a particular project. Frequently the advice is '-, . B a rry,~4.K ohm necessary to comply with state guidelines or regulations. Having direct access to a scientist, planner, or engineer helps to insure appropriate action early in the project. As awareness of the need for planned development grows, this technical assistance will become Increasingly important. Much discussion has taken place concerning the CZM boundary on Cape Cod. We agree with the concept that the Cape is essentially a "coastal zone' with strong ties between inland and coastal resources, and between our resources and our economy. Technical assistance and planned resource use is important 178 Board of Selectmen TOWN OF HARWICH Town of Office of Selectmen � Assessors . Board of Health Dear Done B. Griffin Borry A. Hemeon Hoden G. Greenhalgh As I am sure you are aware, the CZi Citizens Advisory Committee is scheduled to reconsider the question of the boundaries of the Coastal Zone at its next meeting on December , 1977. As matters HARWICH. MASSACHUSETTS now stand, the boundary was established by a previous vote of the Citizens Advisory Committee to include all of Barnstable County within November 17, 1977 the Coastal Zone. We cannot twostrongly emphasize the importance of the vote to ds1. Kathryn Cousins reconsider the boundary of the Coastal Zone. Its effect upon the Office of Coastl Zone Managcment future of the Cape is potentially enormous. Arguments have been 'nanflf lT. mrjave Strv. t advanced indicating that the Coastal Zone Program will not adversely N.!'., " l.,hinSton, D.C. 20235 affect local control over the land within the boundary of the Coastal Zone because the Program does not involve any new or amendatory. legislation. Such arguments ignore the fact that the Secretary of Mteasto.. I.. Coustins: .....Environmental Affairs has regulation making powers under the Program. Thw Harwich Board of Selectmen, after consultation with Furthermore, it fails to take into account the fact that through a series of Agreements (called Memoranda of Understanding) the boundaries representatives of our Planning Board, Conservation Commission .formulated in the Coastal Zone Management Program are supposed to be )inding upon all State Regulatory Permit Granting and Funding Agencies. and Coastal zone 1-anaengn~ent Advisory members, is of the opinion As you may know, the Town of Harwich has already had occasion to run afoul of one of these policies which almost cost the Town a Federal that tihe proposed coastal zone for Barnstable County should be Grant. Finally, it should be noted that the brochure for the formal hearings prepared by the Coastal Zone officials explicitly states that nothing in the Program precludes additional legislation in the future if necessary. Our suggestions and reasons for modifications are outlined The Coastal Zone Management Program is very complex and difficult ii, �m. !!ulo:ral letter rwiidhl vill bt sent to the other 14 towns of understanding. We would suggest that few outside of the Program have a solid working knowledge of its intricacies. Therefore, it is difficult, it). F*rritnllPe *unt)y. if not impossible, to predict the precise effects of the Program on the land within its boundary. If the mechanics of the Program should prove to have a detrimental or adverse effect in the future, it will be most �"~'%":v . .e; . difficult to remove any portion of the Cape previously included within -, . -its boundary. Our representative on the Citizens Advisory Committee intends to Sclectptjl of fiarwich propose that a minimum boundary be established to include all land within the One Hundred (100) Year Flood Plain situated coastward of the Coastal Highways (Route 28 and Route 6A). The proposal would further give each nclosure b town the option of including any additional land in that town which the town, itself, wished to include. As a result, while the Coastal Zone T LIE MARTH!A'S V INE YAR D CC)MM! S2 ho 0i - . th~~~~~~~~~IN 1-41 - .. - - th\~~~~~~~OK III till S M.ASSA( TII1IS!I Is Board of Selectmen". .. Town of Pag 2 . .. 7315 DATE., November 17, 1977 boundary for the Town of Jtarwich would include only the aroas within TO: U.S. Department of Commerce, the One Htundred (10(s) -ear Flood Plain situated coastward of the National. Oceanic and Atmostlierie Administration Coastal Roads, the Town of riarristable, for example, would, if it so Office of Coastal Zone. Management desired.. he free to include the entire Town or any portion thereof S B E T TT FpASCIST2 OSTLt.,47,-tE-DZF within the Coastal Zone boundary, provided, only, that the boundary SJC: STTOFASAtE5TPCFTLIIAE)N'IDRF could not extclude the land in the One Hundred (100) Year Flood Plain UNVJIRONMErNTrL IMPACT STATE~tIJ:NTI:* STATr.PtIf7T ElTE;JED situated coasiward of tile Coastal Roads. TOHENVMR171971A14rRCRF We would, Of course, be willing to entertain other proposals.( tovlmsadnu -Ipjentrdoiifts Although vie believe We have considered all Possible. proposals for tie(w oueadnuspleenrydcens boundary of tile Coastal Zone and wle believe that the boundary which adreae esrla(; we have suggested is the most compatible with the iitent of the Coastal Zone Management Programs, as well as the one which is most consistent NOTE: Referenc.e herein to pacpe numb~err is applicable with thle conceQpt of Htome Rule. For these reasons, we would request to Volume I dtedl March 18, J1977 iaol releasecj Yoursilpport throulgh Your representative to the Citizens Advisory July 22, 1977 Commnittee for thle proposal Which our representative intends to submit. Yours truly, S T A T E 19 F N T The Mlart:ha's Vin-'~yarli Commission sunnorts the, polici-, of the Massachusetts Coastal Zone Manageme~nt Program. The Mnrth,07- Vi neyard Comsinsiun as wfell. as the IslandJ's six towns have. dealf. in a concernedl Vinc systeslatiC cWay Wi~th in rI oe II ntin jG st7ate PWC! - lands; laws. and have furlthor formul ated local and regionalI re,111- latiens and policie~s promoti no effective' coastal zone man-19winotil. Since the. fotmat ion of the Martha's Vi neyard Commisasion in D-001n- he~r 1974 the tli-isachus(,tt-s Coastal Zone ttanagemcnrlt r'rouram hasp been suprport ye of our activities to Consolidate a rea;,)nal coasFt al d(i S r i c withI specialI requlIativions. The proqi ,i, hasa alo spol ted ciir e iffesis LO incorno: ate economic conedrnr, wherit'dn our reju l~a iens ail) Iev tw of clove Inlw~'n~I t JfS oa ii nose Fishe, y n~na~mrtproqiamii have also 11011) 'jiIPve] 1 otliti flb e' assist soc- of tit' Of fi,,, of Coastal 7oer llanaqermenf. Si nec Nartia's inoN'ard is anl Island, the fncus enf co o a n- ccrns; Is C'lCp-i al Ily isor fant to us . l~ocalI condi ti I if i ar~ uIsuallI o f aI srociaI na I tite anl theo speci fic a'-f ions to he1, dot, vo~l frot', theC I'eralI pt (- i s shoulIIId, to lie a Cc-. -Ir 'llh') ol IIe ,rffecti ve, 1),- i it ifi -,o s- odirI' na. -. "i I -.IIlJv. l- (,d' p'J I- Cit ,fti , I .r-f ('e", to s -ta e r'':' lonu Id $,Iv (' t he pie to stepC 1 s IIip Pi ' /,ormoscI(-ia II d,loit' 1...'''7 '2 Ior ~jt I II , I st,, shoulId t,,l" II llI or- a a 1Fl. of lII, ) ''' II, I ft)I t 1: 1 the ('un. i1 7.oot', 'ti'oOFI;) OO 1,1 't~,l~u'j ,,':, 1 'ult ro] . Vurliu-t I C'mu,;]i1 2 referencing the Questionnaire, the largest number of respondents TOWN OF TISBURY (45%) "...choose improve water quality in the coastal zone first..."' Also, on page c-8 & c-9 of Volume 1, several agencies expressed concern that "...water quality planning activities had not been PLANNINCG BOARD -sufficiently considered.". Although some additional address has been made we still find water quality considerations incomplete. VINEYARD HAVEN. MASSACHUSETTS The new policy (03) emphasizes the relationship between Coastal Zone Management and the 208 Water Quality Program. While this is important, the policy fails to specifically include other water quality considerations. For example, the south coast of Massachu- - setts including the Cape and Islands are particularly subject to DATE: November 17, 1977 day-to-day pollution from off-shore exploration and production activities. Policy 33, therefore, should be revised or a specific TO: U.S. Department of Commerce policy formulated that addresses this source of pollution and the National Oceanic and Atmospheric Administration interagency coordination required for its solution. On page Office of Coastal Zone Management c-10A of Volume 1, "...concerns were expressed.. .with respect to the concept and viability of 'networking' as a management scheme." SUBJECT: STATE OF MASSACHUSETTS, COASTAL MANAGEMENT DRAFT "...reliance on MOU's..." "...duplication of technical assistance ENVIRONMENTAL IMPACT STATEMENT; STATEMENT ENTERED and activities...". These seem to us to be valid questions and INTO THE NOVEMBER 17, 1977 HEARING RECORD concerns requiring complete analysis. REFERENCE: (a) Massachusetts Coastal Zone Management Program In view of our concern about local control and implementation, (Two volumes, addendum, supplementary documents, the stated funding allocation which designates one-third of the and related news releases) federal funds for the Executive Office of Environmental Affairs needs review. First, if the proposed policies are implemented NOTE: Reference herein to page numbers, is at the local level, as we think they should be, then this is applicable to Volume I dated March 18, where nearly all of the funds should go. Second, the determina- 1977 and released July 22, 1977. tion of needs must be carried out locally to be meaningful. Third, there is no reason why local agencies (e.g. RPA's) can not pro- vide or contract for any needed technical expertise. Unfortun- S T A T E M E N T ately similar programs have seen too much of the federal funding allocation go into state level administration and too little reach the communities. For a program such as Coastal Zone Management, it would seem that the necessary administration and technical The Tisbury Planning Board supports the Coastal Zone Management Program assistance at the state level would be amply supported with a small and the basic aims and objectives set forth by the proposed Massachusetts percentage of the funding. Policies. In summary, the Martha's Vineyard Commission supports the beree Certain areas of the Massachusetts policy expression require further policies of the Coastal Zone Management Program but believes that attention. We agree with the following issues and concerns raised in the the concerns expressed above need to be dealt with and the policies statement from the Martha's Vineyard Commission: modified accordingly. Locally developed and administered, the Coastal Zone Management Program adds importantly to the tools we page b-69 "...(whether)... a state agency should have the can use to protect and preserve our coastal lands and waters. power to stop shipping/cosmercial development..." "72% said the state should not" , /' ' We are a part of that "72%" and feel that the CZM policies should emphasize local control. 11 .. ~'' i George H. Matribese, Chairm an page b-71 The largest number of respondents (45%) "...chose improve water quality in the coastal zone first..." Also, on page c-8 and c-9, several agencies expressed concern that "...water quality planning activities Irk BOARD OF SELECTMEN & ASSESS DRS November 17, 1977 Ilearing Tishury PlanningSS. 0266 Coastal Management Draft -2- Board Statement Environmental Impact Statement had not been sufficiently considered..." Although some additional address has been made, November 17, 1977 we still find water quality considerations incomplete. The new policy (#3) emphasizes the relationship between CZM and the 208 Water Quality Program. While this is important, the policy fails to specifically include other water Eric E. Van Loon, Director quality considerations. For example, since the Coastal Zone Management South coast, the Cape and the Islands are 100 Cambridge Street particularly subject to day to day pollution Boston, Massachusetts from off-shore exploration and production activities, policy 33 should be revised or a Dear Mr. Van Loon: specific policy on meeting this source of pollution together with addressing interagency coordination In my capacity, representing those who share my philosophy, problems is clearly indicated. recognize the importance of our environment. Our history, reflecting our actions in the areas of zoning, conservation The success of the p ogrsm will depend almost entirely on whether or not and planning, must prove to you that our maJoer concern is the i:.t is funded and administered locally. Any new regulations should be protection of our precious national resources, nlot only for ;'eveloped and applied at the local (town) level. State level staffing, ourselves, and our children, but also for all those who follow. ,fFunding and participation should be a bare minimum -- only that necessary :-to effect, when necessary, an interchange of information concerning local The rights of Home Rule, allowing citizens of small uIrea activities. The local level is quite capable of doing its own research, communities the privilege to govern and shape their dostinit.s, planning, regulation development, administration and enforcement. Such are held very dear to us. specialized expertise as may from time to time be required is more efficiently contracted for on a need basis. We have, therefore, looked upon the advenxt of CZM with both hope and fear. Hope, that it will afford the protection from disorderly development. Fear, that one riore segument of For a change, we would like to see nearly all of the Federal funding actually Home Rule will be eroded. reach the towns. We, on the Lower Cape, have been enveloped by the National Seashore Park; not always to our own benefit, but at least to the common food. The most important facet of the National I'ark Service, we believe, was the establishment of the National Parl- Advisory Commission, recognized by the Department of the Intefrior By direction, as havinfg one of the most important functions and recently continued by special legislation. QzN~�c~c~L~a kQs- n >s, ............ cli, . The Advisory Commission is a two-way sounding bo ard; acrept- ing requests by us to the Park and returnlintg o us. their reactions Carol E. L.ashnits and information. They are important, respectuld and they are Clerk of the Board heard. Orl~ana.'Stetemint for CZM Forna _'artnln Novemb'!r 17, 1977 (2.) The Orleans CZM Advisory, Co-raittee is in favor of a coast-il zone onallgoennt plan,. This cocisittee voted to include all of Orleans as a critical area. One third of The inclusion of a strong local advisory board in the t e ttlae nsl ae n h eann w hrsjn raI rtce C7M program would reassure us that our thoughts will bethtolaraisatatrndhertiigtwthr adaraspottd received, reviewed ani accepted or denied on their merits. Needless to say this would be of utmost importance to us. by wetlands restrictions. We recognise that the pr~ogram must be a changing and We agree with the original position of the C-pe Cod Advisory CGote ht l flexible one. Both new problems and new ways of addressing fthCaebinlddothCasal Zn langretAtsnetefaei those problems will occur. Development must take place In o f t e C p bencue teCaslZneMagmtAtsiethCp sa Cape towns, and. the most appropriate form of' that development snl clgclui.Rvr onc h nadwt h e n twudb will require updated response on both local and state levels. si g e e ooiauntRvrscncthenldwthh -aanit10 b Continued regional participation in the Implementation Imepossible to define sections of' the nape which do not affect one another. of the propram ajid In Its future direction must be recognised.Tisonite coiesheadfripovetofestns-tergain. An open exchange between state and local administrators willThscmLt~erreiste- f'foimovntofxitgizt rnlt help to inisure that the program will remain responsive toins local needs and practical in addressing problems. As the To date the staff has assnred us that this is their concern, not to add now re- program begins to functiqfi, changes will be inevitable. The CZ14 Avisor Commttec to the Cape Cod Planning and Economic -ulations. Howeve-r, if' the Coastal Zone Ma~nage' eet Act will, Iii the future, is- Development Com-Ission must be our voice for monitoring of the management phase of OZM. ~pleveant new laws which may further erode coone!ratian I�'twecn state and towns, we In Truro, we recopnise the -interrelatediross of inland ask for oublic participation before any action i.S t.-k-en and coastal resources. Water systems, recreation areas, and economic impacts are tied together in a narrow strip here and We are concerned that sumn of our questions ace stillinot answered. Will CZ14 Protect In other Cape towns. We, therefore, suggest that all of Cape Cod be included in the coastal $one boundary, all or the Cape Mien drilling off the George-, Pank bvgins. Cali we 'be, assured th-It 'hits program gives us an opportunity to work with surround- each team will brow in advance of' any use vhich nay be made to acooaethe oil ing towns and wtth state agencies to develop a coordinated and responsive planning process for our resources. We urge that indu&Stry, so that each town will be? part of the deccision malinc pro-c~rc. There in all touns make use of this opportunity to use the CZM process to its grrate-st advantage on Cap- Cod. a asadmo nevadngbtentober aiity Sitingf CounIl and C7J Very truly yours, !~~~~~~~~~~~~~~~~oth agniswill be r-cWnisibie for aimiroving re-vfacilities. celovk to : to p~rot-ct the envrivircrrnt.. s:c~ito ti' frorts -~'6' isv lOth thU:i' ~ ti'tefa~1roecra tf rcoT. 'vs to Meevt with Its So manY 'atiews, '-e trust they will continue, -~ stIr,ort lcl'oInI restrictions which will prv'servc this valultall part, of the Coast. 'dt~r~ wt',ec~~t'di 11K!b-?T F1. W7lrox WI!1FrT LIR. `1, JRn. / titY' KI3 A'IM 07 SF'Il~yFl, Cyril J. Patrick 216 Bradford St. una~n 'mrenlm e Provincetown, Va.02657 17 November 1977 axecutive Office of Environmental Affairs 100 Cambridge Street Coastal Zone Management Bo!ton, &:-as- Washington, D.C. Dear Sir, The Ghatham Conservation Commission wholeheartedly On November 7, 1977 by unanimous vote of the Provincetown Board of Selectmen, Provincetown voted to support the entire concept of Coastal Manage- ppr the concept and policies of the CZM program as meat. prepared for Cape Cod. We have worked closely with other The Coastal Zone Management advisory committee on December 6, 1977 will members of the Advisory Committee in the best interests of be debating ii' the entire Cape Cod regional should be included in the proposed the Cape as a whole. zone. I personally feel that the original zone should be established intact since primary studies imply that our ground water supplies are all inter-connected This is the first time that coordination of the many throughout Cape Cod. agencies concerned with coastal development and preserva- Further, I generally endorse the policies and aims of the Massachusetts Coastal Zone 4anagement concept with emphasis on the widely held principle of tion will be possible. uound management of the coastal areas home rule. The: Cape and Islandsresidents best understand the resources and may now be provided through improved administration df the potential conflicts in their individual towns but regional problems should be EOEA agencies under existing Massachusetts laws. handled through agreement between communities. In the last two years the Masschusetts Coastal Zone Management assisted Cape Cod towns have had a growing need for technical twelve out of fifteen Cape Cod Communities on local problems with no interference and legal assistance which neither the Commonwealth nor the by the Massachusetts Department of Environmental Affairs. This procedure has been Towns have been able or willing to fulfill. The rapid growth very' effective and will continue when the Coastal Zone Management concept is on the Cape makes it emperative that we have such assistance. promulgated. There are many coastal studiesi such as the dangers at ;incerely yours, Chatham Bar and the impact and control of OCS oil and gas activities, which are needed for the economic well-being :1 F. Patrick of Cape Cod communities. The Cape is a small ecological unit which at last is being ~considereo as a whole. The program must not be cut down nor d4vided in Any way. Ecology knows no town boundaries. We urge approval of the CZI4 program as presented in Vols, I and II.. A/c-c Cv/ Alice C. Hiscock, chairman 2ej v.ol2 ]of STATEMENT FROM TOWN OF MASHPEE BOARD OF SELECTMEN GEORGE^*.RE-W^.. November 16, 1977 SELECTMEN'S OFFICE Page Two MAIN STREET MASHPEE, MA 02649 ~", . .... We ~thank you for affording us the opportunity to speak before 477-0222 this Committee and make known the hopes, as well as the fears, on the local level. November 16, 1977 Respectfully, Kevn'D. O'Connell, Chairman STATEMENT FROM TOWN OF MASHPEE BOARD OF SELECTMEN / To: Federal Sub-Committee on Hearings of The Coastal Zone Management Program George A. Benway, Jr./ GentlIe men, In recent years, the Cape has been on a steadily increasing growth Robert A. Maxim rate. There has not been enough logistical control to provide a barrier BOARD OF SELECTMEN for unwarranted growth. Coastal Zone Management can provide this balance. The Coastal Zone Management Advisory Committee can provide the guide- BOS/mf lines to necessitate this type of control. These people, all of local communities, have put approximately two years into the development leading to acceptance by the Federal Government. It is this feeling that they convey to us that Coastal Zone Management will work. We, as Selectmen of the Town of Mashpee, have a great concern for the maintenance of local control. Although it has been addressed, a reaffirmation of the home rule process should be completed. This control should not be negated in any way in order to provide citizen input. We agree with the boundary lines that have been established for the good of all citizens of Cape Cod. After all, it was the citizens' committee who designated these same boundaries. To have a Coastal Zone Management Program without the fragmentation and inadequacies which now exist in our State policies, an over-all boundary is necessary. The Citizens' Advisory Committee has found that many laws are contradictory from agency to agency relating to conservation, development, wetlands, hazardous materials, etc. Hopefully, Coastal Zone Management will rectify this problem. It is difficult to accept this plan because of its over-ranging complexity, but if the Coastal Zone Management Citizens' Advisory Committee remains in existence to oversee the operation of the Coastal Zone Management Program, the problems of acceptance would be minimized. ALGSARAM SERVICE CENTERtern u | f . tuistern union, . STATEMNT November 17, 1977 20;52T4E3920 11/16/77 ICS IPMMTZZ CSP BSNB 178762403S HGH TDHT EDGARTOWN MA Q6 11i-16 1021A EST My name is Burke Limeburrer and I am submitting this statement on behalf of the Barnstable County Shellfish Advisory Committee. The Committee consist of the MS EVELYN F MURPHY, SECRETARY EXECUTIVE OFICE OF ENVIRONMENTAL AFFAIRS Shellfish Officers from the 15 Towns of Cape Cod. The main objective of this COASTAL ZONE MANAGEMEN PROGRAM CARE CAPE COb REGIONAL TECHNICAL HIGH SCHOOL HARWICH HA 026Q5 Committee is to improve and protect the shellfish resources throughout the County. One of our major concerns is the continuing pollution of our waterways and shellfish resources. It is our view that the CZM Plan of which we have had a voice in, will THIS BOARD WISHES TO GO ON RECORD AS BEING VEHEMENTLY OPPOSED TO TME 87 COASTAL ZONE MANAGEMENT PROGRAH, WE COMPLETELY ENDORSE THE COMMENTS OF THE GREATER BOSTON CHAMBER oF COMMERCE PARTICULARLY WITH ITEM NUMBER 2, be a great asset towards improving the shellfish resources. We therefor wish to go THIS PROGRAM IS ANOTHER MEANS FOR THE STATE TO USURP LOCAL AUTHORITY AND LOCAL CONTROL OF THE DEVELOPHENT OF OUR COASTAL AREAS. WE FEEL THAT THE STATE IS ONCE AGAIN INFRINGING ON OUR RIGHT OF HOME RULE BY on record as being in full support of the CZM Plan. PERMITTING THE SECRETARY OF ENVIRONHENTAL AFFAIRS TO EXERCISE VETO POWER OVER MAJOR DEVELOPMENTS, FEDERAL GRANTS AND PUBLIC SERVICE INVESTMENTS. SINCE YOU HAVE PLACED THE ENTIRE ISLAND WITHIN THE PROGRAMt YOU HAVE GIVEN THE SECRETARY OF ENVIRONMENTAL AFFAIRS THE VETO POWER OVER ANY MAJOR DEVELOPMENT OR PUBLIC SERVICE WHICH MIGHT BE BENEFICIAL TO OUR ECONOMY, BY DOING THIS YOU WILL BE TAKING AWAY THE COMMHUNITYS RIGHT TO DETERMINE THEIR OWN ECONOHIC FUTURE. YOUR VERY Burke R. Limeburner CAREFUL CONSIDERATION OF OUR OBJECTION WILL BE APPRECIATED Barnstable Snellfish Advisory Committee BOARD OF SELECTMEN % . TOWN OF EDGARTOwN FRED B MORGAN JR, CHAIRMAN LAURENCE A MERCIER ROBERT R WALLER 1OIZ0 EST MGMCOMP MGM ,l~r8' /],�~ j ,-- ) ,,/;C ) L. ) Up' Telephone 1 - 617 -636-8922 Westport Board of Selectmen COASTAL ZONE MANAGEMENT November 14, 1977 TOWN OF WESTPORT PAGE 2. MASSACHUSETTS 02790 BOARD OF SELECTMEN Your cooperation in effecting this change in the Massachusetts plan would prove highly beneficial and help to insure success of the program. November 14, 1977 Very truly yours, Mr. Richard O'Connor Office of Coastal Zone Mtament 330 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Mr. O'Connor: This is in reference to the "State of Massachusetts Coastal Management Draft Environmental Impact Statement", and your request for comments thereon. Board of Selectmen We who liVe in seacoast town which is growing much too rapidly BS.hmm are most concerned over possible growth affects of a coastal zone program managed by unfamiliar persons sixty miles away in Boston. Senor M. Doke We are situated exactly between two of the largest cities in Senator E. Br ooke Massachusetts and have watched our beautiful open spaces and farms Sep. E. Kenner become suburbanized and our natural resources rapidly deteriorate Rep. M. ler due to increased usage. Rep. J. Lurphy Evelyn F. Murphy The state has repeatedly admitted, as in the case of fisheries and contamination, that it is incapable of exercising direct control, that necessary control cannot be exercised from Boston, Furthermore, we feel that state officials are not and cannot be as familiar or knowledgeable of our local conditions and problems as community officials. Also, since local officials according to state law, currently exercise control over most of the major aspect of the coastal zone program, such as land use, sanitary conditions, water quality, zoning, flood control, shellfishing, oversee building permits,'and conserv- ation matters, it would appear that implementation of a coastal zone management plan vust include local officials in the management phase, and not just in an advisory capacity as recommended in the draft plan. It is, therefore, STRONGLY urged that this plan only be approved if local (town and city) officials are included in the management plan. Spch participation could be established by the formation of Coastal Zone Management Councils or Districts, in lieu of Advisory Councils, consisting of memebers from several adjacent communities. Such Councils and Districts would approve and implement federal, state and community coastal programs on the local level. TOWN OF WAREHAM CARLETON D. HAMMOND. in. Board of Selectmen Ni,-ATO Cf.'k CLAIRE J. MC WILLIAMS TOWN OF WAREHAM DANIEL P. O'CONNELL, JR. RICHARD W. POST, JR. BOARD OF HEALTF- EDGAR C. GADBOIS W-reham. Man. 02571 Town Administrator, TELEPHONE 295-0800 EXT. 10 & t1 BOARD - 2g9-0807 WAREHAM, MASSACHUSETTS NOV. 21. 1977 AGENT - 295.2366 Mr. Mark Kaufman Mass. Coastal Zoning Management Executive Office of Environmental Affairs 100 Cambridge St., Boston, Mass. 02202 Dear Sir: Tile Commnonwealth of Massachusetts Executive Office of Environmental Affairs The Wareham Board of Health, after due deliberation of the COASTAL Z.ONE MANAG~EMENT 1110 COAmbridgeSTAL ZONEproposals contained in Volume II of the CZM Program, which Cambriton, Stet 02202would provide land access to Long Neck Beach and Stoney Point Dike and develop the latter as a public beach, herewith states Attention: Mr. Mark Kaufman that it is unanimously opposed to the entire project, not only because of the potential impact on the existing environment but Gentlemen: also on the wildlife that inhabits these areas. Thle Board of Selectmen, as well as the Marine Resources Commission, Due to the wetland areas and the high tides which overflow these have voted unanimotly to recommend that a shift in emphasis for areas any proper sewage installations would be remote or non- existant. Human wastes can carry typhoid bacteria and the public access be di-ected away from the relatively inaccessible pollution of the waters and nearby shellfish beds from this and hepatitis is a matter of concern to us as a Board of Health. areas of Stony Point Dike and Long Beach to the public beaches in Therefore, we strongly urge you to seriuusly weigh the possible the Onset area. detrimental consequences of this project against any undertaking to satisfy economic development as such. Thank you for your interest. We are very much opposed to this proposal as outlined in your program for the above reasons stated and hope you will consider the overall impact this project could have on the Town of Wareham. JANE BEATON, Selectman, and Yours very truly, Representative to Marine Resources Commission . . Jojn"A. Kelenosy, Chrm. Board of Health Cc: Charles N. Decas, Representative cc: various boards TOWN OF WAREHAM 'TOWN OF WAREHAM Board of Selectmen PAGE 2 t-u^~ dlCARLETON . HAMMOND, JR. Ch.irmn ]Board of Selectmen ' BEA Ogr ; gst/,iS CLAIRE 1 MC WILLIAMS e - D^ANIEL P. O'CONNELL. JR. RICHARD W. POST, JR. EDGAR c. GADBOIS warsi i, Mm I 2571 MOTION II Town Admirn.to TELEPHONE 296-000 EXT. 10 & t "I move that the Board inform the CZM that in the interest of the Town it would be unwise to consider opening up Stoney Point Dike as a public beach accessible by land. The cost of acquiring land and the building of a road and November 17, 1977 parking places would be prohibitive in this high value real estate area. We have a 90 acre Shellfish Grant beside this land which would be threatened. The land is a breeding ground for sea birds and this situation could not continue if the Dike were opened - further, the Ms. Kathryn Cousins actual beach area of the Dike cannot be more than 25% of the whole, Office of Coastal. Zone Management 3300 Whitehaven Street N. W. which is now enjoyed by the boating public to capacity. There are Washih ton, . C., 20235 no facilities for the drainage of sewerage or other waste." Dear Ms. Cousins: Your attention to these Motions are of the utmost interest to our From the meeting of November 16, 1977 of the Board of Selectmen TAX PAYERS. of the Town of Wareham, Massachusetts, regarding Coastal Zone Management, the following Motions, as presented by Selectman Very truly yours, Jane Beaton were unanimoualy voted. - MOTION I ....... "After much discussion and deliberation it appears that ' The Board of Selectmen are unanimous in accepting my motion that a letter from this Board be directed to The Massachusetts Coastal ., Zone Management, Executive Office of Environmental Affairs, 100 BOARD OF SELECTMEN Cambfidge Street, Boston, MHA., 02201 stating that it is our TOWN OF WAREHAM request that Long Beach be deleted from Chapter 5 Vol. II of 2, MASSACHUSETTS Pg. 146, Item 28." ~~~~~~~~~~~1. ~~~~~~~2. Statement of Clara M. Yeomans, Executive Secretary, Quincy Conservation Commission C. M. Yeomans, Quincy Made at Public Hearing held by Massachusetts Coastal Zone Management on 11/22/77. Re: CZM 11/22/77 The CA program will follow the state's policies to guide acti ities The program we have before us is the result of 3 years of work which on the coast among which: has included coastal municipalities and citizens. In my own city of Quincy Port and harbor development is protected. the planning department was involved in the formulation of the plan and in Urban waterfront development is encouraged - residential, com rcial,industrial. working with CZ! the planning department paid due heed to all the interests Accommodation is made for exploration, development and product ion of of Ouincy most certainly communicating with the Chamber of Commerce among others. off-shore oil. We of the Conservation Commission intend to make sure that we retain our local Decisions now in local hands will remain there; decisions in s ate agency hands will remain there, with the Coastal Zons Program 'or regulatory powers which protect our most valuable natural resource, the salt guidance. marshes, and also help us to control our flooding problems which are considerable The key questions to approval of the Massachusetts CZM plan as stated n the fraft EIS are: in Quincy. Concerning public involvement in the CZM program, we in Quincy would Whether the Massachusetts program is consistent with the objecves opt for a citizen's advisory council separate from Boston. and policies of the national legislation. Page 16 of Volume I of the Massachusetts CZM program states: "Coastal Whether the award of federal funds under Section 306 of the Fe eral Act will help Massachusetts to meet those objectives; Zone Management improvements will require a new era of cooperation and communication - Whether state management authorities are adequate to implement the among local, state and federal government, and the many interests and users of state program, and the Massachusetts Coast." Whether there will be a net environmental gain as a result of he program and implementation. I read in the Draft Environmental Impact Statement that: "Approval I say yes, and concerning the last, "whether there will be a net envir mental would permit implementation grants to be awarded to the state, and require that gain," I would add there will also be an economic gain to development, commerce federal actions be consistent with the program." These are very important gains. and industry. Also, "approval and implemtentation of the program will allow the state I would think that we realize that ell of the restrictions of ur to better coordinate and more effectively implement existing state authorities Massachusetts wetlands regulatory laws and federal flood insurance regulations for management of its coastal cone. The state will condition, restrict, or are economically profitable. What about development that makes a cost y prohibit land and water uses in some parts of the Massachusetts coast while seawall necessary. What about developments in areas prone to flooding encouraeing development in other parts. Each coastal municipality will retain They don't Just cost the developer and the home caner, they cost us al primary responsibility for managing land use along its coast." Some say we have regulations enough. So does CZM, but CZM coo dinates The plan designates Significant Resource Areas (SRA's) both economice regulations these regulations. It is a coordinating program advocating, cooperatioe and and recreational. coordination of all interests in the use- of the coastal-zone. qo 3. ~~~~~~~~C.M.YT~~~~~~eoians, VNEWBURY CONSERVATION COMMISSION CRe.M M 11/22/77 s--a-.1TowN HALL. 25 HIGH ROAD k/ 7 rw y ~~~NEWBURY, MASSACIIUSETTS 01950 We surely agree that cooperation in management is necessary . * d ;. If development goes on indiscriminately, me will continue, all if us, to expend ~'~'~~ ~~~~~~~~~November 28. 1977 billions of dollars in flood control projects, we will lose millions in fisheries, November 28, 197 we will be victims of uncontrolled growth which has made a shambles of a large portion of our coastline in the past. We will all benefit from coordination, t:i : the developer and industrialist included. Massachusetts Coastal Zone Those who believe the CZM program will mean more federal control are Massachusetts Coastal Zone Management misinformed. The federal law states the opposite. It is stated that "Under Executive Office of Environmental Affairs the federal CZM Act of 1972, federal activities must be brought into compliance 100 Cambridge Street Boston, MA 02202 with state and local policies. Re: Massachusetts Coastal Zone One main objection to acceptance of the plan is that one-step permitting Management - Draft Environmental Impact Statement has not been effected. I cannot see how work toward one-step permitting can be Gentlemen: Gentlemen: done until the plan is approved by the federal government. We certainly can The Conservation Commission of the Town of Newbury, Massachusetts The Conservation Cormmission of the Town of Newbury, Massachnsetts agree that no regulations, laws, management programs, or any other activity in desires to be recorded in favor of the draft environmental impact state- ment prepared by Massachusetts Coastal Zone Management Office. a desocracy are inflexible. There will be opportunity for improvement after We have reviewed the Statement and found it to be consistent with adoptinn of the plan. And we most certainly should all agree that there must the environmental and conservation objectives of the Conservation Com- mission. be thoughtful and considered use of the coastal sone for the well-being of Very truly yours, everyone concerned. Many a developer has rued the day he started work on a NEWBURY CONSERVATION COMMISSION major project on a piece of questionable marginal land. Perhaps better knowledge of the condition of that land made possible through use of the By: ..?...! Clerk CPN plan and expertise could have saved him money and stress. cc: Ma. Kathryn Cousins, Office of Coastal Zone Management, 3300 White- The plan is intended to consider and coordinate all uses. haven Street, NW, Washington, D.C. 20235 It is not regulation, it is coordination and cooperation - it will serve us better than confrontation. f~ OF BOSTON CONSERVATION COMMISSION / ROOM 911 / CITY HAUL / OSTO 1, MAuSS iCHUSET[S / 02201 My name is Lorraine Downey and I am the Executive Secretlry to the Boston Conservation Commission and I would like to present the views of the City of Boston in regards to the Castal. Zone Management Plan for Massachusetts as it now stands. The CZM Plan has many worthy goals and provides a uiseful vehicle for dealing with important land and water decisions,, The City supports the goals of the CZM plan and the objectivews antl policies to protect and enhance the coastal resources of the Commncnwealth. The encouragement given in the plan to. the economic development and port and harbor revitalization is greatly needed in the City of Boston. It is essential to have adequate controls and .......... . ...... � ..... � .. safeguards to minimize environmental harm. We are encoumaged """ ' "~~-- . . ...��* -. - ~... by the Statees efforts to evaluate coastal resourcesi and to ......- . .... .. . %.. . .-... improve the States capability to protect those resouices from STATEMENT OF THE CITY OF BOSTON on THE MASSACHUSETTS COASTAL t'uncontrolled private development and from uncoordinate'd ublic ZONE 14ANAGEMENT PLAN . o.. .b ........uses as well. Presented -at -the,, Publlseafing rat -the NewEng and 'quarium-- . . . Tuesday, November 22, 1977. Attached to this -statementE ifs "letter which we re ived from For further information contact Lorraine M. Downey at 725-4416 ic addresses some of te concerns the Director of CZM which addresses some of the concerns we have felt strongly about. We would like to see the rest of i . in Boston Earbor as very beneficial. I would further defend our concerns addressed and we feel confident that they will be this designation by saying some of the 10 APR areas in other parts of because they are in fact very logical as applied to this area. the coast are not pristine. we feel we must protect the We have found the CZZM staff very encouraging and supportive of few areas in Bc ton with strong controls and this designation our concerns at the present time. We admire the logic of putting will help us. together a plan which is based on existing Massachusetts law which has strong controls and safeguards to minimize environmental harm. (3) Approval should be conditional on redrafting the wording The plan calls for using some of the money to upgrade the issuance of Policy #17. The wording as it now stands, coul- be of permits and make the whole process more expeditious and efficient. interpreted as excluding any uses other than industrial in a This will be a benefit to any development in the coastal zone. port designated area. In the City it is recognized that within some of the developed port areas there are neighborhoods with We would request that the Federal Government approve the CZi Plan long histories? recreation and housing for these neighborhoods but with some added conditions as the plan applies to Boston must be encouraged and not excluded subject to the requirements Harbor. of marine related industry and commerce. we would request that (1} Approval should be conditional on a timetable for approval the wording of thi policy be changed to allow for local concerns. and acceptance of the regulations, in accordance with the CZM policies, which have existing legislation backing them. (4) Approval should be conditional on expansion of Special Assistance Development Areas in Boston Harbor. Boston has a complex (2) Approval should be conditional on designating the 6 critical mixture of problems, jurisdictions, regional needs, economic needs, salt marsh areas left in Boston as Areas for Preservation and and local concerns, which all have to be addressed in one small Restoration. These areas are specificallyt area. We need all the help we can get in addressing the concerns (a) Belle Isle Marsh in East Boston (b) Wood Island Bay Marsh in East Boston of all parties involved. we feel that effective ways of approaching (d) Governor's Island Cove in East Boston (d) Patten's Cove in Dorchester and solving these problems,and to ensure local citizen participation, (e) Savin Hill Cove in Dorchester (f) Neponset River Marsh in Dorchester could be accomplished-by expanding-the SADAdesignation in Boston .. In requesting this I have been told that one of the conditions to areas not designated Port or Harbor sections. Speci fically is that they are pristine areas. We admire the attempt to save we would like to see the following SALA reas: (a) the Forth "pristine areas" yet we see the "Restoration' of these six areas End Waterfront area (b) the section of Charlestwn which is not page 4 a port area and (c) the Dorchester waterfront from Columbia (a4 A 9d'6 Point to the Quincy line. tOe0 i. COASTrAL ZONE 0t, gs-4"A6Je Oaeo MANAUEMENT We have one final suggestion on the plan as it now stands. The Novemsber 21, 1977 public does not seem to understand that all the policies set forth in the plan are not enforcable. We feel that the listing of policies in the plan should be changed to designate which Hs. Eugenie Beale, Chairperson Boston Conservation Commission policies have the force of existing laws and those which- are City Hall - Room 959 Boston, Massachusetts 02201 discretionary. Dear Ms. Beale: Thanks very much for meeting with me to share your ideas on how the draft Coastal Zone Management Plan can be improved to better serve the needs of Boston citizens. The issues you raised are important to the entire program as well as Boston Harbor. In response to your concerns, let me outline some of the proposed changes for the final draft of the Coastal Zone Management Plan. First, the Boston Harbor section of Volume II is being rewritten. My staff is now holding public meetings within every coastal neighborhood in the City of Boston and within each Boston Harbor city and town from Revere to Hingham. In Boston, Little City Hall managers and BRA dis- trict planners have been invited and encouraged to participate. From the comments and opinions expressed at these meetings, the Description of the Region, Policy Applications, and Hap Commentary that are presented in Volume II will be revised to better document the specific problems and needs surrounding this region's coastal zone. A second important change that has already been made within Volume II is the addition of a third Special Assistance Development Area (SADA) with- in the City of Boston. The Dorchester waterfront, because of both its recreation and development opportunity, has been designated an SADA. As such, this area will be given prime consideration when disbursing CDm grants as well as related state funding. As I explained during our lunch,- these funds come from federal sources and will be available for distribu- tion once full CZM implementation begins. Third, in order to provide a comprehensive and more easily read des- cription of the Program, Volume II of the Plan is being reorganized and shortened. The rewritten document will incorporate changes and clarifi- cations recommended to us over the last six months of review. One such clarification that will be made is the rewording of Policy #17. Bil us. Eugenie Beale Page 2 November 6,. 1977 .Nader 2}. 197 Fromt The Scituate Board of Selectmen Rea Coastal Zone M.ianagement Plan The goal of Policy 017 is to promote the redevelopment and/or expan- sion of marine related commerce and industry where the existing infra- I have represented the Scituate Board of Selectmen as liason structure will facilitate such development and where the environmental to te local r,,' "e CZI: Commissions for the past two years, impact will be einimized. Specific sites within the Boston Harbor that meet this criteria will be designated "port areas." Within port areas, have tried to attend as many meetings as Fcasible and keep the marine related industry will be given priority when projects involve Roard of Selectmen informed as the ulan' Dprogresr - state permits or funding, or federal funding. Other land uses such as housing and open space can occur on adjacent land parcels and will be At this time the Scituate Board of Selectmen is in agreement permitted directly in port areas when no marine related industry is pro- with the concept of CZMi and finds no probiem with the policies posed for the site. To better reflect these ideas we propose to reword Policy 017 to read: outlined in the plan. Designate parts of urban waterfronts as port areas. Within Cn a more personal note, I have been very impressed with the these port areas, stimulate marine related commerce and enthusiasm and cooperation of -velyn Iurphy's team. I am sure most industry through public investment and encourage such development through the permitting process. Grant permits of us have attended sessions with state and federal agencies where for non-marine dependent projects in port areas where you felt like you were talking to a cement wall. This has not marine related facilities are not being actively sought been the case with the CZL' staff. They really listen to you. Not and where construction of the project will not hinder the existing or proposed port activity. only do they listen, but they try to cooperate. So I am convinced The accompanying explanatory text will indicate that any activity that while this plan may not be perfect, it has been developed at can occur on plots where no Waterways permits are required, and that the grass roots with plenty of local imput. adjacent housing or parkland is appropriate. I have read the material distributed by the Greater Boston I am pleased that these written statements addressing your concerns, Chamber of Commerce and also a letter from Brockton Edison Company combined with my luncheon explanations, will enable you to support the Plan. And I am looking forward to remaining in close contact with you and Lorraine as we continue to work out modifications and wording age of the CZL. program would prevent them from placing utility lines changes for further improvements in the final Plan. Thank you for yourn flood plains. I an really puzzled by that statement. Three help and continuing close cooperation. years ago, while i was chairman of the Scituate Conservation Ccm- mission, Brockton Edison replaced their main power line into Sci- tuate. This inclured removing all of the poles carryinp this line, Er~ic E. Van Loon ~and replacing them with much larger poles. This work had to be Director carried out not only in the to'in's flood plain zone anl areas cov- E:c ere, by the stare ietlands Act, but the lines also went within 57C feet of our two largest and most important wells. I doubt if you could drean. up a more fragile ecosystem to work in. Eespite this the Commission and Brockton Edison worked so well together that we ended up sending each other complimentary letters when the job was finished. 'cw f '1I.- .-.r w.:r> t!,+ well f:.:l . rl.~ , . Jar -.-.'?l ]e;.! , q5*~~~~~~~~~~~~si. s 47eA&Sccr*e CONSERVATION COMMISSION The Greater Boston Chamber of commerce Fact sheet says thatt C I I u A i F J A S S A C H U I S S S czm policies will restrict much of the coast from all but agri- cultural and conservation related issues. Apparently they feel this is bad. In February of 1972 a Northeaster hit the South Shore. za.-c .Von~ LoonT , Director RECEIVED In less than three days Scituate's coastal area suffered over Cvz'.ttol Zia'v li~;11alflt co.,. acn~ncav-tts two (2) million dollars worth of damages. With the help of a lot .. .o:ailt rSlvirolnrntal DEC 9 1977 of federal money, vie repaired the sea walls, houses were rebuilt 100 Cab::iC-ea :Stootc and life went on. We haven't had any devastating storms since ZOO, ::SSochuoettn 02202 COASTAL lOUT ZME iN2WET 1972, but just a. month ago the Board of Selectmen made a tour Ji i Ert. Di w:M. of areas along our coast where sea walls need restoring and ero- sion is occuring. The total cost to complete all these projects Thui Scituato cosisorvation ConisCion -se Jrs the ObieCtixrez of coaotol Z'One Jia~aacierlent and earlorsos- the ovo,.-al1 concur'c of al if we had the money to do it comes to $4,319,000.00. There are nucijirt lVa conservatln a'nd CevnloonSek ofl our cacolreosourcec. two points that can be made from this, Ito e-;laud vour conrcJ.'ntio-,os n;-ogy-v.1f 5, 1. You can fight the ocean but you sure as heck aren't gdng to beat it. cro~acod tucatn~cal.B aztai~jzl noh ncBC nrof.nuionrl aCh-en orlocal 2. If the Greater Boston Chamber is so concerned about re- decision t-inv under feri;tiXnc pr;oirala, such0 an wuirnri oroboctmin. stricting development on the coast, they better go a step farther and tell us where we are going to get the son-nol in wing out a rutu-ll" heneficiel o0re-0ton 0er0t"cc. money to pay the consequences. In summary, I support the coastal zone plan because from an TAowever, we foe n o-,tnoi-ial nrohleand look rc~nrdto a sceauon'- environmental and Cevelopnental perspective we can no longer afford inl'ucTa-I a irna- ue-, rSc-e ill b-' .O.dorit rnrulvn >o:otn the dubious luxury of operating In a vacuum. 1'c. :czoi uCrc:rrn (-1 C L C omns 1 SuCtion 11-14) arC Carl E. ipes-C -ln'-' - tl~ ou9 r' ~n. it of -- 1272, Sc IteatoCeotcxinoc& ~~~~.- - - '~~~~~~~~~~~~~~~~~~~~v o,' T," -I ' o " ~~~~~~,�~~~~~~~~~~~~~. acituate Selectman iT' m-i" -v AL cr n k:-tJ mOV-v mc varntot eov'r;o-1 lrac- !roo od Cob a1. :ouc wn -''Drnn:o ;'o:'� :~�rc-nr:.�:" ii' rmC.- cn1-' :o ntiot -c'S-, r -- to mtmtr t!Jot r I ( 0 ' C" ~~~-a -- C vi; n- nio-) m-1 - . . -- .~ v-' 1'' ----i '~c' istho~hm-lel Cy6( olanicir.urc~nir, ttlo-holdiufj and inanauecjcnot atithority for indiviclntIE2 c-1s but there are iaan- exis5tin.g state and local Town of Wareham alencie lrou:ihcal acqisid funscnbecanle hc Off ice Of the Shellfish Constable Waraham, Massachusetts 02571 ;-edren.al funiding- to sustain local acquisition tlhroucgh such measures is Gzcticrr 1-3,-2 of the Aiatioiial F'lood Insurance Prograia A-ould lhelp to reduce anlnu."l flood 'losses by enbigloco.] acmuisition of critically threaitened coastal propris 8 Decetmber 1977 .le vouald also lihse to see more attention. to federal inter-aeency Office -of Coastal Zone Management coo~:d:.altioi-i Pu FnR~A uponrsorec sm.,er project I-las reacently dec-4igned National Oceania and Atmospheric Administration - to serv~.ce v. coastal high linsard flood zone and barrier beach. The Attention: Me. Kathryft Cousins Vnrohiecm war evcentuall", resolved at the local, 1-vol, but lack Or Room 3280 nel3.y ce~rdi*ntiobetlveai- CZ;1, Y~PA, and 1-111 first precipitated a 3300 Whitehaven St. NW ~ce: .' of locl co, nei~s ad caused a -;ooDr do-al ol a--poi-isive Washington, DO 20235 CimfeO~Zfl~itine ,to ho unnece-uparil1y 'wacted. Dear MS. Cousins, Ile yn,-Dlt sUr;tIcct thle eafolce.,.3snt of tIe. --o-CE-llel taerl of undar- As Shellfish Constable of. the town of Wareham i would andici et~s~e fceza a~~ne~esai-d the inuistance tihat th~ese be like to inform you of my strong opposition to certain ae, C4 to in 1-.:Ict Fiji ~~~~~~~~recommendations made by the Massachusetts Coastal zone 1~~Ic,:r~~d to in the rocj~~~-oi~~:. Management Program. ~Qv~o~; wrere 'EV~n'~ nav puc Se�73~cd.~inc1'.iho cost areI refer speolfIcally to the proposed development of ~.o olsus-li'" nlnd aizi s~red relate this to flood insurance Warethams Stony Point Dike and Long Beach de public beaches 1ocsnai.: o-Li" ith -unlimited road access. !,CscZ,,r ::rc-.7' Wmo each frnt ra likPI-Y to ho sewucrod dv to YOU may not be'awares that ~bcth these areas are vitally vole .oy~t es~oo.Evaluate- the rationi of total -public important to Warehamts half-million dollar annual Shellfish inve~.vof in -7ctn , syorsen~eln, nsurnce sbsides ~iifiharvest. ecouo~dic iri'out o local jobs, OtC'At a time when New. England's shellfish industry is vz ~cnaosacorinjl endangered by overt ishing, destruction of habitat, and Pollution by sewage# chemicals, and oili It Seems to m6 to a e~:~ hoi t-l--7 En-c oe u'oho above sugetini1ay be of aa:ist- be short-sighted environmental management to compromise two -t~~~~~~~~~~~~~~~~~~~o :oj ,ie ccac u U.O.tOnl rtte. f the Most productive and unpolluted natural shellfish 11Q.': 'ton vc~7 on, juul eiterst mour sLIyoruna-2-t ondgrtt arenas In Buzzards Bay. The reason that the Stony Point Dike and Long Beach Var-i trul-, yon,.u, have long been good producers to that both are , for most Purposes, Islands* However, at any local olammer or quahoger will tell you, this does not mean that the beaches are Inaccessible to the public. These two locations are uSually open year-round and an any given day family shellfish l~~hvid A. ~~~ellis, ~permit-holders may be seen harvesting their limit of clams Choirean ~~~~~~~~~and quahogs. A small skiff is aill the transportation Sc~tcute Co sorvaiun Crr~in ~~Orithat to needed. (continued) (2) (3) There is no question that at the present time both Long Beach and the Stony Point Dike provide recreation and In Volume I of the Massachusetts CZM Progran the first shellfish not only for the people of Wareham but for residents stated policy of marine environmental management Ls to: of towns from Boston to New Bedford, and for visitors from all over the state and the country. Conserve ecologically significant resource areas (salt marshes, shellfish But there is a limit. And the unfortunate fact is beds...) for their contributions to that unlimited access to anything as vulnerable as a shellfish bed leads invariably to the destruction of the natural habitats. - page 79 - very resources and qualities that made access desirable in Any development of the Stony Point Dike and Long 3each would the first place. The shellfish population of even the be, in my opinion, entirely inconsistent with tha' policy Stony Point Dike could not possibly survive the impact of and disastrous to Wareham's shellfish program. thousands of carloads of people, many of whom would have little understanding of the fragile ecological balance of Respectfully yours, the inter-tidal zone. My experience as Shellfish Constable for twenty-five f.,'/ years has been that despite the constant vigilance of shellfish officers, highly productive natural shellfish populations cannot be maintained on a heavily used public Edwin W. Stidley beanh. The reasons for this arm: Shellfish C:)nstable 1) The beach between high and low water is continually dug-over by young children with the result that seed clams and quahops Are exposed and then eaten by predators or copies to: washed up on the beach to die. Evelyn Murphy, Secretary 2) Many children and adults will go to almost any Executive Office of Environmental Affairs lengths to take clams home with them as souvenirs. These 100 Cambridge St. clams generally end up in the garbage can. Boston, Massachusetts 02202 3) The town is unable to bear the cost of increased Director Eric Van Loon patrolling by shellfish officers. Massachusetts Coastal Zone Management Program 100 Cambridge St. 4) Inevitably, s~ public use Increases, so does the Boston, Massachusetts 02202 risk of dangerous contamination by human wastes, especially in a fixed, filter-feeding shellfish population. This danger is particularly likely in areas as low-lying as Long Beach and the Stony Point Dike, where adequate and safe sanitary facilities cannot be provided due to tidal and storm flooding. I believe that fragile coastal areas of great importance to a town's shellfish industry should not be considered for unlimited public recreational use. This is especially true in the town of Wareham which has had the foresight to develop four major public beaches which more than meet the needs of the area. (continued) DDC 77-70 Statement for Coastal. Zofe M.anamaeent Fearin.T, November 14, 1977 CITY 11AILL C.LO'CE STE R *M %SSACIIVSETrIS . 4)1 930 14 November 1977 Thannk you for the opportunity to testify concerning the 'asn-clhusc-tls '7oonstnl 7one ~'na.:e-'afnt Fro~rair. The conatal 7one does, need '-otter manprertent, and this spee's to be a t.,e1-lb.-lancedl pro~:rzn- to aecornwlish that. AS the pl.,)n states, Evelyn N-phy the coastal zone should be us-ed primarily for purposes 1-hich Sceayo Environmental Affair s EeuieOfc require a seashore, for shippin-, and commerce, for Ocean- Enirn00a Afairsrdg SxctreOfcet oriented businesses, for fishing, and. boatin-,, for swimminz and Boson CabrdeStrehuett recreation. Fcolor-ically fra-rle areas should be protected, 3s~l ascuet but develonmefts iwhich do not harnx the environment should notDeret y rhy be- bq-tred dovn In red. tape. This plan appears to provide for D a ertr upy qulateer appro-al of environmientally sound projects. The Gloucester Downtown Development Commission supports the Massachusetts i-ahant Is concern-d., however, that our waters were not Coastal. Zone Management Program, and believes that its implementation Included In an ocean sanctuary area, since we would like to will result in beneficial environmental and economic impacts for Glou- have, the Protection that thIs mi,-ht olve us. '-ie are a-ckin~- cester's waterfront and the State as a whole. a,-ain that iUahant, be Included in the South Essex Ocean The, economy of Gloucester is heavily dependent an the local fishing 3Anctuary. industry and the tourist/recreation industry. The CZM program offers rNahant is also deeply concerned about proposals to dred'-e protection to the habitats and biological processes on which our fishing for sand and 'traiel off the shores of Nahant. '-e ir~e that Industry depends. The program also provides for protection to resource this not be done without~ a omrplete Study Of Its effect on areas with recreational appeal and promotes public access to the water- Nahant. It could severely affect our recreational facilities,. fron environment. Includin'- our beaches, Rs well as fishln-, and lobstering near We are impressed with the fact that the CZM program is enforceable through our shores. ~~~~~~~~~~~~~~~~~~~~~existing State laws and regulations, and that local government retains a At 11hant' s 1977 2-:-3n - ~ettn',. we voted to continue our strong enforcement and decision-making role in managing the coasatal zone. Local ~',rowth polley Co.!!-itteeadt xad tt drs We value the professional technical assistance which the program offers ~oc's~.l 'tneare'ent proble"'~s as 1-ell. Teeoe:hant is municipalities, and have already taken advantage of it. We support CZM -ell -orOE'tred to i'pein h oa seto osa oepolicies promoting use of our limited waterfront resource for the fishing, ?~~~~na'-.e'sent, ~~~~~~~~~~~~~~~~recreation, and other water-related industries. Finally, we look forward to local financial assistance for program implementation to benefit and expand. fishing and recreational use of the waterfront. This Commission heartily endorses the Massachusetts Coastal Zone Manage- "'1 ~~~~~~~~~roo't'~~~~~~~~~~~~ ~ment Program as an effective, balanced proposal for protecting our fragile for the marine environment while promoting suitable, sensitive development within "ahant Local "rO','th 'bOoliy/fCoastal 7one Tlana~ement rlos~,rttpe the coastal zone. Sincerely, William P. O'Connor Chairman IIFO'Clsdb Wi;5 of, Vlomeede4 C! TV u% 1. . 4; ILIP I!CF R T EIASS1 WC III'S T TS 0 019311 r, - r ' -i .s T' 'r '.t Saeof Masachusetts Coastal lManaftement Draft Environmental. -)-IPI~ :) 'Y -,,Pr 2't' . '". =apac Sttement- '' P ''- ADDITION: , -i *r' N'a1is page 11-14: "ifistoric: Districts Established by Coastal Communities"; * '- '~"-nt-- ~-,'~- add: "Gloucester, Gloucester Distoric District. 1977". ' :~ ,-~-" -. ~'~r'.) ~' T an jn t.-. o -n,-ks5''5) -~ .vc9~ ~~~t~~~~~db~~~~~~~&1I1 ~i v ~ (fl~~L~~442 ~3~' ~'. '~~1Z~ ~'*" ~ "~ ~'*'~l'' r ~*"*''*< ' ~~~~~~~~~~~?a Z ) a r '"Sal CONSERVATION COMMISSION The Ci MASSACUSETS TOWN OF MANCHESTER ofREVERE, 4'.)-~T e WILLtyofREINSTEIN, M ayor /TOWN HALL, MANCHESTER, MAsS. 01944 o* tfw~ WILUAMG. REJNSTEIN. Mayor o<"'22:-0 '0 -'by' c~'t~ OFFICE OF THE CONSERVATION COMMISSION hi, /R,> < A X/- CITY HALL lovember 27, 1977 21 November 1977 '"*" ,:?~b- Mr. S. Russell Sylva a'-#:~:<;,% u ll va, Director, Coastal Zone Management ;Ir. S. Ruse;ll ASylvfa Executive Office of Environmental Affairs AsFsisitant Sccre-tary of Environmental Affairs 100 Cambridge Street Acting, Directcl, :nass. C. Z. i1. I rogras Boston, Massachusetts 02202 100 Custridge Street r't.li:, .:A 02202 Dear Mr. Sylva: ]lear 'r. Slva': At a joint meeting on 10 November 1977 the Revere Conservation Commission and the Revere Growth Policy Committee arrived at the following 'lTc ,;inciesrter Conoervation Com:nission wishes to be recorded as consensus which is submitted for your consideration. bci" g in favor of the Coastal Zone Mlanagenent Progra:a. 1. That the interests of the residents of Revere would be better served uce Coa:t:wl Zonle is an i;!lportant natural resource. With mount- by including Revere in the Lower North Shore Region rather than in the Boston ing; pire'sures fron the :any ce:ipeting intereste and needs, a Harbor Region. It is felt that the magnitude and complexities of Boston's soind re'-oul'e nnaaenent proeran such as outlined by the Coest- problems are such as to necessitate a large complement in the Regional o ;.,onZ( ;,Iitnac.enolt is neocrssry in planning for the future, with representation, thus dwarfing Revere's representation and those of its problems which cr(cndeurati.on beir.g iv!en tc protecting and preserving our nat- are unrelated to Boston's. In the Lower North Shore Region, Revere would enjoy ur'na envi]rnl ucnt. an equality of representation and mutuality of concerns past, present, and future such as: residential rather than industrialized communities, Saugus Marsh, Thelrefore, plesce accept this letter as our endorse:ent. East-West Connector Road, Blue Line Extension, vehicular transportation routes, Lynn Harbor Dredging Proposal, Marine activity, Delatteo Dump, Resco incinerator, Sincerely recreational beaches, pollution (Lynn Harbor, Pines River), glide path approach to Logan Airport. 2. That the Saugus/Pines River Marsh in Revere and the Belle Isle Marsh John D. Goodall in Revere, be designated as Areas for Preservation and Restoration. That Chaj rnan recommendation be made to the Metropolitan Area Planning Council that it submit for consideration to the MDC the possibility of acquiring these marshes. J d)(: cek 3. That "Public Involvement Citizen's Advisory Councils", page 11-48 of cc: 00al].d of beleeta:en CZM Draft Environmental Impact Statement be established in each Coastal region i eteo ila''rjnitcn to include a minimum of 2 representatives from each community. That these representatives he appointed by a continuing committee in each community, said committee to be appointed by the Mayor or appointing authority, and selected from appropriately oriented civic groups and including municipal representatives such as Planning Department, Conservation Commission, Growth Policy Committee, etc. Salvntor- V. theci, REVERE GROlrFl POTICY COMMITTEE Cl,lnirm;n, Revere Conservation �s- Cr.misaion '. ' / / a ftnifg of hli Bliver, Afibsourfifiq4ust- �, ; rr CEIA. fy >Eric E. Van Loon, Director - ,~., ~[aPti9on f(lmanin.0g.6n ' Coastal Zone Management DEC December 10, 1977 ONE GOVERNMENT CENTER Page 2 . , U rL'CEY COASTA1L ZOIr ........ ;.,;. ia-.!rte tj (... . P llArysa ..,!w A,: t representation of competing interests in the Coastal Z ne lI AGA(.N are important for proper implementation of any program, as A; 'G- December 10, 1977 no matter how well conceived and thought out the progr m is, ,. .., ;..~mr:E implementation will surely uncover problems which the local citizens should directly confront. -:ric E. Van Loon, Director The emphasis on technical assistance is certainly a vc.-tal Zone Mdnagement strength of the program. In our own experience we hayv .~:.c'utive Office of Environmental Affairs found that a local board when faced with limited finan ial l(iol Cambridge Street resources and technical talent is at a decided disadva tage !Vt;oln, Massachusetts 02202 in making decisions regarding complex development prop sals in the Coastal Zone. We would, however, request that technical Dear Mr. Van Loon: assistance be adequately funded and staffed to answer tuestions and review plans for all levels of local permit granti g, such Please be advised that the Fall River Conservation as notice of intent hearings under Chapter 131, Sectio 40. Commission has reviewed the proposals and management pl.ntl, Along with this, regional seminars for members of loca boards as drafted by the Massachusetts CZM office. Recognizinq instructing them in the technical aspects of their dec ision the complexity of the problems the CZM staff faced in making function may also be a valuable supportive acti ity that preparation of this program, this Commission was imprel:sil the technical assistance aspect of the CZM program can render. lby the generally sensible and well balanced plan prcnHa:la.. }landbooks, on areas of concern as mentioned in the pro rams are also an excellent idea, but the CZM staff may find it ieneficial This Commission is in full accord with the Proar% *:!T to coordinate their efforts to the point of contractin( for work recognition of the desired primacy of home rule in r.t.,.r. with other groups traditionally involved with the spec fic areas related to local land use. The program should, and ',. !-!1 of concern, such as the Audubon Society, and the Conse vation it does, recognize, however, that local decisions ar-e .3 Law Foundation. til;: inappropriate or conform to the desires of a n3.-', $lliticol constituency which is able to influence the I-':., In its efforts to streamline the permit process, he , ci::iclns to their advantage. Home rule is imnx,rt.nl. i.;t Commission would also like to see the CZM program move toward so are the safeguards which prevent abuses on the local a one permit or at least one application with joint he rings level. The CZM program as drafted would seem to huttrcl:' procedure. We have seen individuals seeking permissio- for hole rule by providing a more orderly and efficient revi%'m projects having a minimal impact on the area of our co cern process. Local boards and agencies may well he better put to unnecessary hardship and expense because of a d plica- administrators if they are aware that review of their deci- tive and time consuming permit process. As an older Ci ty with sions will be speedily and impartially processed. severe economic problems, we are also concerned with f cilatating the entry of new enterprises by reducing their adminis rative The Cosmmission is also supportive of the programs burden while maintaining appropriate safeguards. continued emphasis on citizen input and participation throuesh the, State and Local Advisery Committees. Continued citizen p1-rticipation and continued efforts to insure cross sortionill Jog. TOWN OF DENNIS Eric E. Van Loon, Director CONSERVATION COMMISS N CONSERVATION COMMISSION,.. Coastal Zone Management December 10, 1977 Page 3 Cc- The program also contains some points of more specific T 0F T'4 Ni'VT interest to the City of Fall River which deserve comment. f__..554e0 Recognizing the importance of visual access to the Coastal South Dennis, Mass. Zone, we of the Conservation Commission feel that the definitive boundary of the coastal Zone as set in Fall River does not December 13, 19T7 fully take into account this aspect of Coastal Zone enjoyment. We fully realize the implicit problems in extending the Coastal Zone any further inland, but would suggest the possibility of designating some adjacent zones of special interest as being at least eligible for planning and technical services. The l. Eric E. Van Loon, Director sharply rising topography of Fall River from the Taunton River- Coastal Zone management Mount Hope Bay presents views of those waters that should be a Exec. Office of Environmental Affairs valuable community asset. An asset that was certainly dis- 100 Cambridge Street regarded in the construction of the so-called Western Expressway Boston, Mass. 02202 extension of Route.79. Assistance from CZM in planning orderly visual development in this area would seem to be in order. Dear Mr. Van Loon: The Commission was also impressed by the idea of integrated We are indebted to a careful citizen reader for calling attention to development of marine terminals with small parks and public the following error in the Draft Environmental Impact Statement. viewing access points. As the most appropriate use of the majority of Fall River's Coastal Zone does appear to be for Page 31-23 - Chapin Memorial Beach is listed as in the Town of marine dependent industry, such a plan would be well suited Yarmouth. Since it is our westerwwst and one of for Fall River. our most attractive beach assets, we'd very much appreciate the Dept. of Conaerce returning it to the Town of Dennis. In summary, the Fall River Conservation Commission goes on record as fully endorsing the CZM program as written and Sincerely, hopes to work closely with the CZM staff on all matters relating to Coastal Zone development and planning in the City of Fall River. Should any further comments or information be requested of this Commission, please advise as it is our M ary Hod Haler feeling that the program is a must for our City and our State. Clerk nshl, Very truly yours, cc: Mr. John E. Fletcher FALL RIVER CONSFRVATION COMMISSION 26 Freydis Drive - RD #1 South Dennis, Ma. 02660 By: _ _ Jon F.. Lucey, jham rm.- _. JFL: jmb DC-L. Van LOon . 2 . December 12, 1977 Co t off i~ut DEC 14 orko77 /.. "so en - vcstructures into their surroundingrs, a et.tzensr cosurttee is at ork on visual Sw-South Denn354i% Ma 6 �, i- gPproblems of the Route 28 commercial strip, another citizens' coliaittee is Xyv J r lb , ;;, ; l-= 150"r A revising the sign codle, and the Plannintg Board nd Conservation Corlasion December 12, '19 3-94om are actively discouraging blacktop parking. The departments look forward to DOAM2D ofr HFAU receiving the CZ14 guideline handbook at the earliest possible moment. 394.0-M To sum:arize, I believe I can speak not only for myself but unofficially for ' :. I-1 sn an Loon, Director all the major regulatory agencies of the Town of lennis in heartily endorsing ...! .nice aof Envronent Affogra irs olcy 13 ani the CZlM Program's concern for visual enliauceent of the coast. r...ice of nvironoental Affairs To put it in the vernacular, that's where the bucks are and will continue to , . 2.k-.4e Street be, !.,,.%,,. 02202be. Re: Policy 13 - Visual Enhanceeni Binerelyt - . Van Loon: - .,..:,setts btsiness and legislative comeunities continue mysteriously ;..::. to adrit tlhat good appearance and prosperity have historically g6ne 1laln Mry lodod 1iagler :; .... T. e historically oriented urban renewals in Newburyport and New Blc.lord .:::'..ct both local and visiting money - by appearance, The Chatham Fish Pier :,c. : tlriving over-tile-counter business . by appearalce, Nantucket is perhlps :.,st affluent touriss enterprise in the Coaslonwealthl - by appearanlce, ew .-:,nu' Jl economic asset is the port, but its #2 is the Vieux Carr6 - by trsnace. The examples are endless, and an local and specific as tbhe unl;c- : ,:i.josea his tailor to attract money to his bank or the Representative buying ,i: 3-piece suit the day after election. I ,. personally convinced that tile long-time (100 year) ecolosic resource of much .� Lthe Co:w2onweelth and certainly of its coast is tourism - the continuing :rccational a.ppeal of historic shrines and glorious water within a day's drive oG' * third of thile nation's population. Cape Ann will not move to the Sunbelt ;1:t'xpecteily some Tuesday morning, nor will lexinGton nr Concord or Walden 1un1i. Accepting t.ollriasl as a major arnd aon-eroding income source, thle protection anl exjansioun of visual assets along the coast becomes good, lard, tight-fisted Yar.sce couion sense. I believe it shluld prove feasible to allay industry's fears that they will be ,ci;Ir Inlaisrhed or compelled to *ut cupolas on 500 ft. smokestacks. As the CZ0M -cat clearly states (pp 140-l42), industrial installations can have an ambielu:e : their own in, tile coastal scene. Canal Electric is in no vise integrated with t:.e surrounding Great 4arshes of Barnstable, but neither does its presence destroy .:r even impact very riach on those marvelous marshsacapes. On urban vaterfronts -:c iid,]e fascinating complex of eater in use can become a major visual attraction *.t very little cost, either public or private. Co:aial: hores to Diennis on cape Cod, much citizen energy was devoted in 1975-6i; to irnveltoryinjg the town's natural resources, under the direction of the U. S. toil Conservation Service. One of our projects in tlht program was a Visual Preference Survey of more thlan 100 random people around town. General concern for ratural landscape preservation and for fitting the built environnent into its settintlk w.s clearly deronsttrated in this exercise. As a result, the town's Desilln lfuview aluelt hws bet-n revitilized to influence cosmAercial design, its Historical Ilistrict Cu1issioino 1ave bc.en cautioned to continue their rigorous review of the "a'iL" of IoN Wown'1 .- "s src!*a30 v turetie into their surroundings, a cpkizenS' cosesittee is at work on visual : GSouth D eonnals M . . . lo s of the Ro ute 28 commerciel strip, another ci tiz ens' com.ittee is ..,!'~ S~~~~~~le~AM'o- revising the sign cole, and the Pl anning Boatrd an Conservation Co issteion December 1 17 are actively discouraging blacktop par ting. The departments look forward to - bo"D of Sn~ts receiving the CZ14 guideline handbook at the earliest possible .o=ment. ai . :r Van Loon, Director To surnarize, I be lle-e I can speak not only for myself but unofficially tor 22 :.. i.1 ZVs Management Program all the major regulatory agencies of the Town of flennie In heartily endorsing .. u Oc ?e of Environmental Affairs Policy 13 and the CZM Program's concern for vi sual nnanceiaent of the coast. - iie o nviroent al Afars o put it in th e veraclar that's where the ba cks are and will continue to �. ... r ~d~c Street be. ... !., :.:. 02202 Re: Policy 13 - Visual Enbanceuent incerely, - :, Van Loon: s - ':. -.-usetts business and legislative coMunities continue mysteriously . ' . '..::.; to adilit that good appearance and prosperity have historically gone lhnr Mdry flood liagler *:; .:. T Le hist oricaly oriented urban renewals in Newburyport and flNew Befhcrd ,.tw:..ct both local and visiting money - by appearance. The Chatham Fish Pier :, tlhriving over-tile-counter business by appearance. Nantucket is perlhps .st alffluent tourits enterprise in the Coaicnjwealth - by appearance. lNew .,-,,nu' Jl economic asset is the port, but its #2 is the Vieux Carre - by r...rzc. The examples are endless, and an local and specific as the banl :;.' i:oses his tailor to attract money to his bank or the Hepresentative bying ,ja 3-piece suit the day after election. I ,. persoually convinced that the long-time (100 year) econamic resource of much . tLhe Co:.aonvealth and certainly of its coast is tourism - the continuing r:-crationl appeal of hista oric shrines and glorious water within a day's drive ' third o te nation's popultion' population. Cape Ann will not move to the Sunbelt ati.xpectcJly some Tuesday morning, nor will Lexilngton nr Concord or Walden lund. A:,cepLing tour risl a a major and rion-eroding, income source, tile protection an exa.nsiun of visunl assets along the coast becomes good, lard, tight-listed Yfar.ee co/nion sense. i blieve it sho uld prove feasible to allay industry's fears that they will be :i;:r Iniished or coalpelled to .aut cupolas on 500 ft. sokestacks. As the CZMi. '-:t clearly states (pp 140-142), industrial installations can have an ambien-ae ~:' thaeir own in thie coastal scene. Canal Electric is in no vise integrated with t:.e sarrounding Great Marshes of Barnstable, but neither does its presence destroy ..r even ilapact very istch on those marvelous marshscapes. On urban waterfronts e ;v:. wiole faseinating cousplex of water in use can become a major visual attraction *.t very little cost, either public or private, Co_:ita, home to Dennis on rape Cod, much citizen energy wvs devoted in 1'975-7 to iraventoryine the town's natural resources, under the direction of the U, S. 'Oil Conservation Service. One of our proJects in that program was a Visual Preterence "urvey of saor, than 100 random people around town. General concern for ratural landscape preservation and fo r fitting the built environment into its settike, V4us clearly deoonstrated in this exercise. As a result. the town's Desianll fietvie Ianlk h:Is beetn revit lized to influence comalercial design, its Historical District Cuolisasionlo ave been cautioned to continue their risorous review of the "f it" of oN TOWN OF ~~~~~REiHI N HA Board of Selectmen -2- December 20th, 17 MASSACHUSETTS- M U. S. A. HNA.MSour questions; however, because of the newness of this program we are 01FICL 01 resolutions ~~~~~~~~~~~~~~~to these problems will become clearer as the program unfo~.de. PLANNING BOARP Very truly yours, December 20th, 1977 Board of Selectmen Cara Town of Hingham Massachusetts MCS/eV Gentlemen: In response to your request that we comment Owa the Coastal Zone Manageaent Program, we support the concept of coordinatetd management of the coastal areas in regard to competing uses, while Insuring protection of environmentally fragile and significant areas. We agree with the thirty-. eight policies outlined in the Program. We understand the Impiamentation of this program working through existing State statutes and agencies, will speed my and gimplify the permit process. We support this. We also understand that If this plan to accepted, the Vederal government will be requited to conform with this Massachusetts Coastal Zoos Program. This program to designed to reinforce local xoning and that any project seeking a State permit could Dot came before an R0L.agency without having first been approved an the local loyal. WC support this concept. We agree that there has not been adequate public participatiom and there in lies our problem. We have reservations and concern. about the make up and procedures of the Citizen Advisory Coimmittee for Boston Harbor of which we are supposed to be a member. Except for tho fact we are inside the mouth of Boston Harbor, we have little or no common concsrns witit respect to the other Boston Harbor comunities, because of the differences of the uses of our waterfront. We do not understand how privrities can be act and conflicts resolved fairly. We don't want to be toot in the shuffle. We do not understand the ful implications of Rtagham's designation as a developed harbor. We hope this conmmunicaeta our support of the maejor concepts of the CZM program, however, there are at-III numerous unanswered questions. No hope that you will make your response An a positive meanner In order to keep the concepts alive and press for satisfactory answers to our concerns. We have had an opportunity to talk with a representative froms CZK. Mr. Mark Kaufman, 'on the I1th hour', and lie has boon ablo to answer some of town of page 2 of 12/12/77 Washington CZM letter citu ate ~~~~~~~~~~~~~3. Purchase of Storm-Destroved Pronertv, the Commission feels, should be I I ~~coastal zone management accomplished only with owe consent, for any other method appears suppressive. commission. 02066 ~~~~~~~The State Office of Coastal Zone Maneagement has, on file, a copy of a letter dated 6-1-77 denoting Scituate' B strong recommendations on the above mentioned concepts. It further clarification of our position is necessary, we would be Richard O'Connor very willing to elaborate on any or all elements of the Plan. Office of coastal Zone Manaesmant 3300 Whitehavean Street, NW.V Washington, D. C. 20235 Sincerely, December 12, 1977 ' Dear Mr. Ol~~~~~~~~~~~~~~~~~~~~onnort ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~Walter J. Liberty, Chairman Tim members of the Commisuior& have spent many monthe a&sieting In the formulation of dud in later reviewing the )*eeachusqttx Oomstal Zone )Nuagemmnt Plea. We are In agreement that Mhssachaunotts does Wooed need thin tool to guid* cometal planning. However, we would point out several changes in the PlAnx concerning our town. 1. Scituats's Coastal Zone Boundary. In W194, the Town hired a consultant whose function it ;as to correlate and catalogue coastal resources fria a planning viewpoint aid ~to then met forth this information in a study jiakaga - Scituate I Coastal Zone Study. The comptal. boundary In Wehistudy is ta follow., from the 3A line An Cohasset following tile WAd WFA-road Bled and then westerly on the Driftway. We tool this atdequately Includes Scituate'sa coastal areas and propose the above an our coastal, boundary In the 0ZK Plan. The State Office of Coastal Zone Wanagement has tentatively agreed to thin boundary change. 2. The Pronosed Areas of Preservation and Restoration Concex~t. we feel, would Impact the Town In a negative fashion, especially In the area of future growth. To categorically prohibit sewage treatment plant. senem not to be in the beat interests of our town, for the section dosignated am an APR Is posoibly the last piece of commercial property an yet undeveloped. 107 December 19, 1977 To: Board of Selectmen From: Ann Connor 'jo the lboard of :elec tlen As the Hingham Representative to the HAPC, I am in receipt of copy of the letter sent to Chairman Bickford by George Bailey, President of 'mh concept of tie C.Z.14. is good. The waterfr int MAPC in which he affirms my original statement that the HAPC has NOT endorsed the CZH program as a regional body bccause of the lack of IL one of our mo.ot valuable assets. It IS also valuable understanding by its coun aity members. I endorse Hr. Bailey's position that a recommendation fox acceptance of CZN is of little value unless to every other town in the state. What happens in one there is full local understanding and continuing cooperation between all levels of government. vwate-rfrornt community affects everyone through p llution, I wish to reiterate my original objections to the CZa which have been altered in no way by comments and recommendations submitted at last week's. meeting. The CZM plan is vague in its terms and greater clarification is useful if it could act as a mediatory and monit ring needed. It is entirely unnecessary if local zoning powers are to remain under local control where they belong. cagency for an overall plan with regional input nd Congressman 6tudds has publicly stated that CZH will result in the specific regional controls. delegation of complete authority for coastal zone control from local governments to the State Governments. If local comalinities lose their self- determination on land uise zoning for coastal areas than all land use zoning will be under state control and local zoning will no longer exist. Iowever, I do not feel that the present plan is Public participation in the CZM plan, a necessary criteria established answer 1 agree with the reservations stated in the by the federal government, has not been realized, and is evidenced by the fact that there exists a complete lack of public understanding of the plan. Selectmin's letter but I would like to leave the way No provision is made in the plan to include regional planning agencies open to some form of regional cooperation. on the statewide advisory board in spite of the fact that they represent local officials in regional planning. At a crucial time when exploration for energy resources off our coast Aline Hoelzel, C -Chairman will require essential land areas for supplementary operation, we are being fare Cove Park C mmittee asked to approve a CZH program which will strip our comaunity of all local land use control. December 20, 1977 LELECTMEN'S OFFICE RECEIVED DEC 19 1977 H M1.1 hM HINGAM, �AASS. Io't TOWN OF HINGHAM EUGENE E. BICr(FORD. CHAIRMe HARBOR DEVELOPMENT COMMITTEE MASSACHUSETTS OSCAR P. BECK JOSEPH P. VALEY. JR. OWFICC OF 69"CTNIM~ December 21, 1977 Dec-atuer 21, 1977 Board of Selectmen 7 East Street Hiinham, Mass. MI. Yl{:thryn Cousilns Office of Coastal Zone Management Centlemen. 3300 Wliltehaven Street, 14W IUaslington, D.C. 20235 The Harbo r D evelopm n t o Dceber 19th, 1977. Conjiderable discussion on the merits of the Massachusatts Coastal Zone .ubu~ect: t'Massachusetts Coastal Zojie anenEement Plan was involved. The major point on both sides was the Management Prog-ram effect On local Option or home rule - As Vigorously defended as denied. Dear 1On. Cousins: The vote on the motion "that the Selectmar support the Massechusetta CM Plan" resulted in a ti., therefore, a recorded 'nay, muse be reported. unclosed please find the opinions of the various town boards and agencies with whom we conferred before Very truly your. forwarding our letter to you on the Massachusetts Coastal Zone Management Program. Ue welcome your study of all of these comments. Q'I'va Very truly yours, Ehdwarnda ~~~~~~~~~~~~~~~~~~~~~~~~~Chairman ( Enc. fall Remarks re CZN nlon Content Ifary Hood Hagler Rovumbo r 1,91 T97THE DUXBURY PJA'JN]1NG BOARD in my personal opinion, CZ14 lo goins to hamt the Cape just about as ONPL1-CSk much as the Fational BSaftbvwe did. E Look at the contento Poloeie, I sand 2 - Protect coastal asroes to keep the food cbain �dQrklaS. Policies and 8 - adsinisei shore erosion QAYrAL pit. : 1cf-it Policy 7 - oney for expanding the fishery. .:; Policies 5 and 18 - Honey mand were 5'ysteisatia approach for drafting. Policies 25-33 - A variety of attemupts to Protect usm from Big 011 and December 2,. 19-77 Big asectyleity pollcy,.36 - Honey for urban redevelopmsent In conste.1 cities, like Hyiannis. Aren't te~e thevery thnge ~ ~ ~ ~ ~ o tue. ric Van Loon, Director CZ14 Are'tthee hever ting tatourtons nvtdays n e e s o tie xecutive'Office of Environmental tf!4irg and enegy in '~7 ye~r, tryig to irin~ ah~~ut? 1.00 Cambridge Street and envxgy In mery year. tring to bring bouoston, Massachusetts 02202 Attacks IXve heard are on Policies 13-16c Visual Eavironwent, waich aer Dear Mr. Van Loon: ony 'ew!aungmenet" anyway. Dar Legislature hasn't noticed, apparently, that The Duxbury Planning Pir believes the CatlZone ,,t. anagement Program will provide the .11te anjosa uiiai- zppcvxrance Sea historically eqwated w.ith end contributed speoifically to prosperi, ties with a unified approach to evaIlsb.tlng and Con1trolling th effects of development in fragile c~.etal areas, and will als And nctsaloua compl~aints from the home Bluildera Association, in l1vo with hepmncpliisietfy those ij,as0 which should bepo cted their Otenosf thst every reglmlatiOu will rling thea into bankruptcy.. Slre from development. don't ee 557polices whih see to isftet or sinla-fsmly hoe haaiderUWe do not share the convorlis1~ voiced at hearings fhat dont sa ny allie vbch ee toImpctourminlefamly ~m buldesthe program will result in another lo/p of huroaiicrary, a-, th I's Poreni to ~rita it off to reflo~. program is designed to operate unidev, tilready existing statute I'm rcreLI to write it off to reflezand agenties. We welcomne the proapiqit of federal funds to a d 4Sunicipalities in planning for, ide.,i I yjj-,_ and managing val.. And 'H~ome Rule,' cof course, In my observaion, this fine old phrase has &ble and irreplaceable Coastal resoiji ,*,g. been bolderizod Into somatbing politicians shout to nstik senenliganis caterin Sifncoj-,ely yours, tc seocial iutereste, True home rule lias been ever-run by qmovtb - or population/ and technology and big government. "lima control' In thu phrase I prefers, and Sara t'_ Wil-ton, Chairman I. believe It can be preasared for a #pood sissy yearn, by 9KIlled end reasonable neg.0tistions. Serious work wa~s drone on CZM In its development rtfnga to FAss-arc the~t Its netual procesoes - the points where the progrran tanets vov' peoaple and SW " Cc: DUxbUrY Clipper our pleos - rer-_in In home control. I balleve they do, to the best of the 1,!,Il abilities of rapnil ctzn nd thue cooparritIon or the eteto en- federal autborit~~~~~cr.h 0 I r p COMMENTS RECEIVED FROM INTERESTED PARTIES r I i r i i I I Massachusetts Petroleum Council Comments on the Massachusetts Coastal Managemenit Program and Draft Environmental Impact Statement I THE PROGRAM HAS NOT BEEN DULY ADOPTED Notwithstanding this unambiguous requirement, both The Coastal Act defines a "management program' as "a the Massachusetts Program and the DEIS make quite clear that comprehensive statement" which has been "adopted by the state the bulk of the management policies which comprise the program . ... "(CZMA S304(11).) Section 306(c}, in turn, requires have neither been duly adopted nor are they enforceable.1/ that, "Prioc to granting approval of a management program sub- Indeed, the very regulations which purport to establish the mitted by a coastal state, the Secretary shall find that: (1) Massachusetts coastal zone management program have yet to be The state has developed and adopted a management program for adopted by the Executive Office of Environmental Affairs, the its coastal zone in accordance with rules and regulations state's 'lead" coastal management agency.2/ Further, since promulgated by the Secretary. . . ." (CZMA t306(c)(l).) those proposed regulations have not yet been subjected to the Existing program approval regulations expressly public review process required by Massachusetts law, it is not require that, in order to be approved, a program must show that at all clear that the provisions of SS306(c)(l) (c)(3) and 311 "[it] has been formally adopted in accordance with state law of the federal Act, and associated regulations, which require or, in its absence, administrative regulations." (15 C.FR. at least two public hearings on management programs "at least S923.31(a)(1).) The comment to that regulation goes on to one of which will be on the total coastal management program provide;. ," have been complied with either. "The management program must demonstrate The Massachusetts program document asserts that the that it represents the official policy and objectives of the State. In general, and objectives of threquir e documtate. In general, Massachusetts Secretary of Environmental Affairs has the power this will require documentation in the management program in accordance with anageent progra in accordance wstablished to adopt regulations to establish the program "as a statement either rules and procedures established by statnute, or in the absence of such of the state environmental policy for the coastal zone.'"/ law, administrative regulations." Aside from the fact that the regulations are merely proposed, 15 C.E.R. S923.31(b)(1). Clearly, narratives outlining desirable, but unadopted, policies are insufficient, as are memoranda of DEIS, p. 11-7. 2/ Massachusetts Program, Volume i, (hereafter "Program") understanding, and similar non-legislative materials. MassachusettsAppendix A, p. a-. Similarly, attempts to fill in the gaps in existing State law Program, p. 317. See generally, discussions commencing at by outlining approaches to coastal zone management which have egal Authorities for the Progra m and in e draft document entitled "Legal Authorities for the Implementation of the Massachusetts no legal force and effect simply do not comply with these Coastal Zone Management Program, December, 1976, p. 49, et seq. requirements. - 2 iI- and have not been adopted, neither the Secretary, nor the ' of government . . . that power to make laws for the general Executive Office of Environmental Affairs which the Secretary welfare is vested in the [legislature]. . . . In Re Opinion heads, is vested with the power to promulgate state policy of the Justices, 286 Mass. 611, 191 N.E. 33, 35 (Sup. Ct. regarding the coastal zone--environmental or otherwise. Yet 1934). That case further held that this power to legislate the adoption of a coastal zone management program, b y . cannot be surrendered or delegated." (Id.) definition, entails the promulgation of state policy. For It is true, as the Legal Authorities Draft asserts, example: The draft document entitled "Legal Authorities for that administrative agencies generally, and the Executive the Implementation of the Massachusetts Coastal Zone Management Office of Environmental Affairs specifically, may adopt those Program" (hereafter "Legal Authorities Draft") quite properly rules and regulations reasonably necessary to discharge their defines such a program as being" . . . by definition, a statutory responsibilities..k/ This, however, entails the statement of policies, objectives and standards."�/ Further, administration of details respecting express grants of power, i: asserts that "Coastal zone management program adoption not the establishment of "policies, objectives and standards" regulations . . . would serve as a means for adoption of a which will significantly impact not only the citizens of program embodying a state program of policies, objectives and Massachusetts itself, but neighboring New England states and standards related to how laws substantially affecting rights the nation as well. and procedures available to the public will be administered in Further, even if the Massachusetts legislature could matters involving coastal lands and waters."'/ vest the power to promulgate a comprehensive coastal zone The adoption of 'policies, objectives and standards" management program in an administrative body, it has not done is an act of legislation, not policy implementation. But the so here. Indeed, there appears to be concern in the law of Massachusetts does not provide for legislation by legislature that the submission by an executive agency of a executive agencies. Indeed, according to a unanimous opinion program which was not adopted by the legislature constitutes an of the Justices of the Supreme Judicial Court of Massachusetts, improper to usurption of legislative powers.!/ it is "[a] fundamental principle of [the Massachusetts] system 6/ Id. pp. 51-52. 4/ Legal Authorities Draft, p. 53. (This is a portion of the 7/ The Massachusetts House, in a formal resolution passed September 26, 1977, urged the federal government to post- definition'set-forth in 5304(11) of the CZMA.) pone consideration of the State Coastal Zone Management 5/ Id., n. 35 Program until approval of the program has been voted by the Massachusett's legislature. -3- Of course, Massachusettshas existing, duly adopted Clearly, the power to analyze and made recommenda- legislation dealing in varying degrees of sufficiency with a tions concerning the development of policies is a far cry from number of the topics among the required constituents of an the power to legislate. approvable program. There are other topics, however, with In short, Massachusetts has no duly adopted manage- mrespect to which there is neither existing legislation ent policies regarding energy. The same is true with respect respect to which there is neither existing legislation to a number of other substantive requirements of the Coastal sufficient to meet the requirements of the federal Act nor to a number of other substantive requirements of the Coastal Act. power in the Secretary or the Executive Office of Environmental Act. Affairs to create enforceable provisions to meet those require- Our point is this: It is the law of Massachusetts, ments. Providing for the nation's energy needs is one such as elsewhere, that administrative bodies such as the Executive Office of Environmental Affairs have only those powers, duties topic. The primary Congressional objective in amending the and obligations expressly conferred upon them by statute and Act in 1976 was to facilitate pursuit of the 'national obiec- those reasonably necessary for their proper functioning. tive of attaining a qreater denp- Vf energy self-sufficiency.' Massachusetts Com'n. etc. v. Liberty Mut. Ins., 356 N.E.2d 236, (CZMA 5302(i).) Yet not one of the energy policies discussed 238 (Mass. Sup. Ct. 1976). Thus, to the extent the Executive in the program relates to national energy needs.8/ Nor is the Office of Environmental Affairs is not expressly vested by the Secretary or the Executive Office of Environmental Affairs Massachusetts legislation with power to deal comprehensively given the authority to promulgate such requirements. Indeed, with topics such as the nation's energy needs, it may not do the Office is empowered only to �. . . analyze and make s0. recommendations, in cooperation with other state and regional II agencies, concerning the development of energy policies and THE BULK OF THE PROGRAM IS UNENFORCEABLE programs in the commonwealth-�9/ Before a program may be approved, the Secretary of Commerce must find, inter alia, that the state has the 8/ Introductory comments in Chapter 2 of the DEIS indicate authority to implement the program, including the power to: that policy 33 is 'enforceable.' (p. 11-7.) However, policy 33 was totally replaced by an October 7, 1977, Addendum to the (a) Administer land and water use regula- Program and the DEIS text relating thereto does not indicate that the new policy 33 is enforceable. tions; 9/ Massachusetts General Laws Annotated, (hereafter MGLA) (b) Ensure compli4nce with the program; Chapter 21A, Section 2 (17). and I) 1 ~3~and "13 (c) Resolve conflicts among competing to the Governor and where the Governor has 0 uses.1� a legal policy making responsibility, an executive order will be an acceptable instrument to assure the coordination of In short, in addition to being duly adopted, a program must be instrument to assure the coordination of networked activities." legally enforceable in order to be approvable. Proposed 5923.42(d)(4), 42 F.R. As previously mentioned, the DEIS itself reveals that 43567-68. possibly fifteen, and more likely only fourteen, of the However, as we have already pointed out, interagency programs 38 polices are "enforceable.-ll/ Nor does the memoranda appear to be "generally unenforceable," as are program's attempt to rely on interagency memoranda suffice. defectively adopted regulations.!4/ Indeed, the program document itself concedes that "interagency Thus, as the program currently stands, critical Memoranda [sic] are thought to be generally unenforceable. .. portions of it simply do not satisfy either the requirement .12/ that programs be "adopted" or the equally important requirement Revised program approval regulations currently being that the state involved have" . . . the authorities necessary promulgatedll3/ address the enforceability of programs such as to implement [its] program." the instant one in the following terms: "Enforceability. Each State agency 14/ See also Article XXX of the Massachusetts Constitution, which exercises statutory authority that is set forth in its entirety below: to be incorporated into the management pro- gram must be legally bound to exercise its "Art. XXX. Separation of Executive, authority in conformance with the State's Judicial, and Legislative Departments. coastal policies. This can be achieved through an executive order or an inter- wealthn the egime thepais common- wealth, the iegilsative department shall agency agreement (including memoranda of never exercise the executive and judicial understanding or agreement) provided that of them: the executive such order or agreement binds the affected sa r epoer parties to conformance with relevant shall never exercise the legislative and management program policies. In States judicial powers, or either of them: the where affected agency heads report directly judicial shall never exercise the legis- lative and executive powers, or either of them: to the end it may be a government of laws and not of men." 10/ S5306(c)(6), 306(d)(1). 11/ As previously mentioned at n. 6, the new policy 33 does not appear to be "enforceable". 12/ Program, p. 319. 13/ Proposed 15 C.F.R. Part 923, 42 F.R. 43552, et seq., August 29, 1977. -7 -8- I1H II1 facilities (S305(b)(8); a guarantee that adequate consideration THE NEED FOR DULY ADOPTED be given the national interest involved in planning for, and AND LEGALLY ENFORCEABLE PROGRAMS We have elaborated on these two deficiencies because siting, facilities {including energy facilities) necessary to meet requirements which are other than local in nature duly adopted and legally enforceable state programs are the meet requirements which are other than local in nature essence of the Coastal Zone Management Act. Simply stated, the (5306(c)(8); and 'a method of assuring that local regulations do not "unreasonably restrict or exclude" land and water uses Coastal Act constitutes a commitment by the federal government do not nreasonably restrict or exclude land and water uses of greater than local benefit. (CIMA S306(e} (2)) to our coastal states that, if a coastal state duly adopts a of greater than local benefit. (CZMA 306e)(2)) Further, these provisions must be enforceable. comprehensive program to wisely manage its coastal resources, Further, these provisions must be enforceable. That Congress considered legally enforceable commit- the federal government will conduct its activities in a manner That Congress considered legally enforceable commit- which is, to the maximum extent possible, consistent with that ments by participating states to honor federal interests the program. (CZAR �307(c)(l).) The Act further provides that any quid pro auo for the federal promise to honor state coastal erson applying or a federal license or permit, or submitting interests is obvious, if only because the requirement appears pr son applying for a federal license or permit, or submitting several places in the Act.15 Why Congress insisted upon due a plan for Outer Continental Shelf exploration or development, several places in the Act./ Wh Congress insisted upon due affecting land or water uses in the coastal zone of such state adoption and enforceability is equally clear: The federal m.ust certify that such activity has been planned, and will be government, with its responsibilities to the nation as a whole, conducted, in a manner consistent with the state's program. sirply could not abdicate its Constitutional function of (CZMA 5307(c)(3)(A) and (B).) Further, the Act provides regulating nationally vital issues on the basis of a simple funding covering the bulk of the costs of developing and hooe that state programs may, but well might not, give administering such programs (CZMA S5305 and 306) and funding to appropriate consideration to national interests. compensate the states for impacts from nationally required Congress clearly recognized this and, hence, forbade the approval of any program which was neither appropriately coastal energy development. (CZMA S308.) In return for the federal government's commitment adopted nor fully enforceable. Hence, the Massachusetts that its activities (to the maximum extent practicable) and the program is not approvable. activities of its licensees and permittees will accommodate 15/ CZMA �5306(c)(7), 306(d) and 306(e)(2). legitimate state interests, the Act expressly requires that 15 CZMA 55306(c)(7), 306(d) and 306(e)(2). state programs provide a planning process for coastal energy - l0 - -9 -0 f5i Or excludelregulations do not unreasonably restri.. or exclude land and water uses of regional benefit.rr Since an express purpose uof the b enat Act is PUrsuit of the 'nation. ective of attaining a greater degree oE energy self-suffic Further, the program9 fais tLo satisfy a number of lencyl (5302()) we believe the Act clearly man the usefu substantive requirements imposed by the Act. We turn now to a consideration of this s i- dae the usefu; consideration f thispecifi c ~national � discussion of four such deficiencies. Programs. nt erest in tate III Notwith s otandingh dictates of the Coastal THE PROGRAM IS SUBSTANTIVELY DEFICIENT Act, the 38 dich purpotedly reelect ha Because the existing legislation which Massachusetts Act, the 38 lici hich Purportedly environmental POlicymake no mention of at seeks to mold into a coastal management program was adopted regional interests make n eeds, le ntion oti without a view toward compliance with the federal legislation, of attaining a greater degree of energy sel-sufficnl c, it is not surprising that it fails, in a number of respects, to Nor, Since the October degree77, Adde ndum to the oel satisfy the substantive requirements established by Congress in the two paragraphs with the e the Coastal Act. interest and uses of egiol benefit- does th 70 Page For example the program fails to satisfy the closely progra of region benefit the 37 0 interrelated requirements of subsections 305(b)(8), dealing address these issues.!-/ with energy facility planning; 306(c)(8), requiring considera- / It hould be noted that th tion of the national interest involved in planning for and whieh the ExnvP 3a7 subsections which c rse adootthe Execotiv Off ice of n of the reg�l..j0? siting facilities (including energy facilities); 306(e)(2) adopt of some u sclosumental A... in t heef and content from the 38 olime in he future differ in number dealing with uses of regional benefit; and the national policy hreu 3 DE (SPeDas. ( M, dPrograi . ned e of the thru 33.) articulated in 5302(i) regarding energy self-sufficiency. Program, p. 345. Addendumi p. 1a- Subsection 306(c)(8) imposes an affirmative, substantive requirement that state management programs provide for "adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities . . .) which are necessary to meet requirements which are other than local in nature." This requirement dovetails with the requirements of subsection 12 3D5(b)(8), which requires energy facility planning, and subsection 306(e)(2), which requires that programs provide - 11 - In an attempt to cure this deficiency the Addendum The memorandum which appears at pages 1 through 10 of purports to incorporate in the state program a thirteen page the Appendix to the DEIS indicates that the Massachusetts discussion of the National Interest from the DEIS authored by bmission is intended to comply with these requirements. the Office of Coastal Zone Management. OCZM, however, has no Hence, this discussion. authority to promulgate policy for Massachusetts, nor so far as while the oEnergy" portion of the Massachusetts we can determine, has Part II, Chapter 6 of the DEIS been programl8/ contains a thoughtfulcomplete, outline of the adopted by the Massachusetts legislature. This attempt to M c ndop rate by threference a na rrat ive althored byh atte to resent energy situation in the state, and proposed policies incorporate by reference a narrative authored by a federal needs of Massachusetts which do much to ensure that the energy needs of Massachusetts agency is, in fact, a legal nullity. are met, there is nothing in the program which requires Even ignoring this problem, however, the consideration of ter than state interests in the state's simply does not satisfy the substantive requirements imposed by facilities planning process. Indeed, while the legislation the Coastal Act regarding these topics, as the following dis- establishing tne nergy Facilities Siting Council would appear cussion illustrates. Ac.sion illustrates, to provide Massachusetts with a duly constituted planning body The Energy Facility planning Process and outlines a process for energy facilities, it also expressly The EnergY Facility Planning Process limits the responsibilities of the Council to ' . . . The 1976 Amendments to the Coastal Act, inter ala limits the responsibilities of the Council toa aThe 176 th mendquments to thame CPastalr Act, ainter la implementing policies contained in [the balance of the legisla- added the requirement that management programs contain: onl to provide a necessary energy supply for the nwealth 'A Plannlintg process for energy faci- tion] to provide a necessary energy supply for the commonwealth ities liegnificantly t fo be located in, or ich ith a minimum impact on the environment at the lowest possible may significantly affect, the coastal rone, including, but not limited to, a process cost.1-9/ No mention is made of accommnodating the regional for anticipating and managing the impacts from such facilities,. energy needs of either the commonwealth's New England (S305sb)(8u.) neighbors, or the nation. These new statutory requirements, in ~turn are The absence of affirmative requiree'nts that the nery needs of the Northeast and the nation he accomsodated in Interpreted in 5923.14 of the program approval regulations energy needs of the Northeast currently being promulgated by NOAA at 42 F.R. 43552, et seq., August 29, 1977. 18/ Program, PP. 227-272. 19/ MGLtA, C. 164, 569H. -13 -14 jrl the energy facilities planning process is flatly contrary to a major purpose of the 1976 Amendments to the Coastal Act and the consideration of the national interest involved in planning for, and express requirements of the proposed regulations, as the interest ing of, facilities finclu- ding energy facilities in, or which following excerpt from the regulations makes clear: i cantly affec t, such state'sor which coastal zone) which are necessary to "Whatever approach is taken, it is critical meeoas requirements which are other than to tie the outcome of the planning process local in nature. In the case of such to what may sometimes be two conflicting energy facilities, the Secretary shall considerations: resource preservation/ find that the state has given such conservation and the need for energy consideration to any applicable inter- production and transportation. The latter state energy plan or program." consideration may involve being responsive to not only the needs o'ener srs (CZMA S306(c)(8) emphasis added.) the coastal zone but also energy needs of the State, regon and the_ _Nation._ As the following passage makes clear, Congress Proposed 5923.14(c) (emphasis added). intended that state programs contain affirmative, enforceable national interest provisions: On the positive side of the ledger, the authors of "As to the national interest requirements the Massachusetts program have demonstrated a good, basic referred to under item 8, your committee understanding of the current energy situation in the state. rwishes to makibil ity fclear lthaopingt the primary responsibility for developmains in the State Further, the policies proposed in the program commendablyins in the Sae. Ndevelped is t be less,if the program as developed is to be approved and thereby enable the State to reflect a recognition that any such planning process must receive funding assistance under this title, the State must take into account and enSre a necessary energy supply with a minimum impact must accomodate its program to the specific on the environment at the lowest possible cost..20/ requirements of various Federal laws which are applicable to its coastal zone. "I. t must also recognize that there is no provision of this title which relin- Consideration of the National quishes any Federal rights in and powers of regulation of Federal lands, or of the Interest in Facility Siting paramount Federal interests in navigable 'Closely rel~at~ed-to the energy facility planningwaters, or of any of the constitutional Closely related to the energy facility planning powers of the Federal Government, including those relating to interstate and foreign process requirements of the Act is the requirement that: commerce, navigation, national defense, and international affairs. To the extent that "Prior to granting approval of a management a State program does not recognize these program submitted by a coastal state, the overall national interests, as well as the Secretary shall find that: specific national interest in the genera- tion and distribution of electric services, or is construed as conflicting. with any applicable statute, the Secretary may not 20/ Program, p. 259, as amended Oct. 7, 1977. approve the State projram until it is - -15 16 - N'~ ' IT . ' amended to recoqnize those Federal rights, powers, and interests.' national interest appears in Part II, Chapter 6 of the DEIS.22/ (Legislative History of the Coastal The Addendum purports to substitute Chapter 6 for the deleted Zone Management Act, December 1976, 23/ pp. 321-22.) discussion.- We have already observed that the narrative The statutory directive of 5306(c)(8) is interpreted prepared by OCZM is not a part of the program. Wholly aside in 5923.52(a) of the newly proposed regulations, which from that deficiency, Chapter 6 is neither an accurate descrip- provides: tion of what is the program nor does it satisfy the require- "Requirement. The requirements of sub- ments of the Coastal Act, or existing or proposed regulations section 306(c)(8) to consider adequately the national interest involved in the relating to consideration of the national interest. planning for and siting of facilities which are necessary to meet other than local That Chapter 6 is not an accurate description of the requirements must be met within the context of balancing a national interest in the Massachusetts program is well illustrated by its assertion planning for and siting of such facilities with othor national interests related to that, coastal resource conservation and protec- tion. This balancing is necessary to meet the national policy objectives of section 303 of the Act. Therefore, in meeting the " . . the Massachusetts program looks to requirements of this section, States must: the following sources for policies and information that must be taken into account (1) Describe national interests considered to adequately consider national interest in during prbgram development and the exercising both its planning and management sources thereof; responsibilities: (2) Indicate how cometin_ national a. Federal laws and regulations, ;iterests have been weighed and how this weighing is reflected in the b. Policy statements for the President of substance of the management program; the United States (e.g., National Energy Plan), (3) Describe a process for continued con- sideration of national interests c. Special reportst studies, and comments miing program implementat--{on." from federal and state agencies, (Emphasis added.) d. Testim6niy received at public hearings and meetings on- the-,Massachiusetts Due to the deletion from the program of the dis- program, cussion entitled "National Interest and uses of Regional e. Certificates, policy statement, and solicited opinions issued on specific Benefit"21/ by the msole discussion of the projects by federal regulatory agencies such as FPC., PRDA, FEA,-et-c.' f. Statements of the national interest 21/ Program, p. 345. ; issued by federal agencies. -17 - 22/ DEIS, pp. 11-53 thru 11-66. 23/ Addendum, p. 10. 1\9~~~~~~~~~~-l -1- "Fotr three of the national interests of salient to Massachusetts - energy pro- duction and' transmission, recreation, and C. fisheries - NOAA has issued specific state- ments of national interest. Assuring That Local Requirements Do "These in addition to the sources Not Unreasonably Restrict or Exclude above, are used for defining national interest in energy, recreation, and Uses of Greater Than Local Benefit fisheries." Recognizing that parochial local interests might well (DEIS, pp. 11-53, 54.) Notwithstanding this assertion, the unfortunate fact result in the unreasonable exclusion from the coastal zone of is that the program imposes no such requirement! Nor, indeed, uses of greater than local benefit, Congress included in the were we able to locate any support for the assertion that "The Act an express requirement that Massachusetts Coastal Zone Management Program has incorporated "Prior to granting approval, the Secretary shall also find that the program the following NOAA statement concerning the national interest provides: in energy." ,* * Chapter 6, at best, represents what the authors of "(2) For a method of assuring that local land and water use regulations within the DEIS would like the Massachusetts program to be, not what the coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit." Even assuming Chapter 6 were accurate, it makes no (CZMA S306(e)(2).) mention of how competing-national interests were weighed and The instant case provides an excellent illustration how the weighing is reflected in the program. Nor does it of why such a guarantee is indispensable. Large portions of describe a process for continued consideration of national New England are dependent upon the ports of Massachusetts for interests in the future. The simple fact is that neither the general interstate and international commerce, as well as for policies outlined in the program nor the standards established the importation of energy resources. Were local regulations to in relevant existing legislation include affirmative require- unreasonably impinge upon these, or other uses of greater than ments that national interests be adequately considered. This local benefit, the welfare of the entire region would be is, in our judgment, a fatal defect. imperilled and a very basic aspect of federalism would be violated. Indeed, the federal government was created for the very purpose of ensuring that the parochial interests of the states do not unreasonably restrict the greater national - 19 - welfare. - 20 - IaLo The Act requires that state programs contain 'The 1972 Act was enacted before the affirmative guarantees against such a result. advent of the current and continuing energy crisis; i.e., before attainment of a Surprisingly, the Massachusetts program makes no pro- greater degree of energy self-sufficiency became a recognized national objective of vision whatever for satisfying this requirement. In fact, the the highest importance and priority. The conference substitute follows both the October 7 Addendum expressly deleted those portions of the Senate bill and the House amendment in amending the 1972 Act to encourage new or ccodram which discussed uses of regional benefit and sought to expanded oil and natural gas production in an orderly manner from the Nation's outer replace them with the DEIS Chapter on the national interest continental Shelf (OCS) by providing for financial assistance to meet state andlocal discussed sunor__a. needs resulting from specified new or expanded energy activity in or affecting Further, that portion of the DEIS identified as the coastal zone." dealing with this tatutory reqireen2 makes no mention Statement of the Committee of Con ~deeling with this statutory requirements"aference, 1976 U.S. Cong. and Admin. whate';r of either the federal requirement or the program's News 1821. The goal of the Congress was plainly stated--"to encourage new attempt to meet it. or expanded oil and natural gas production in an orderly manner from the Nation's outer Continental Shelf." Delay in reaching Serving the National Objective this goal was of foremost concern to the Congress. Of Greater Energy Self-SufficiencThe cnferees believe . that we have discussed in some detail the failure of the there is a real possibielity ofde lay or disruption in Federal plans for needed new Massachusetts program to affirmatively require that the energy and expanded OCS oil and gas production unless coastal states and coastal communi- needs of the balance of the Northeast, and the nation as a ties are assured of the means of coping with and ameliorating the impacts from such whole, be appropriately accommodated in the preparation and activities ..., ioplementation of the program because this failure, if none Ibid. other, precludes approval of the program for the reason that it Accordingly, to enlist the cooperation of the states in expedi- goes Sto the very heart of the federal Act. ting OCS development Congress provided in the 1976 Amendments Congress intended the 1976 Amendments to the CZMA to for an energy "impact" program to compensate coastal states deal with two "national" concerns: The need to develop OCS should offshore development lead to any adverse impact. The resources and state opposition thereto. significance of the impact program and the 1976 Amendments in The Conference Report on the 1976 Amendments general was well summarized by Representative Ruppe in the described their purpose as follows: final House debates: -22 24/ DEIS, pp. 11-50, 53. - 21 - "When Congress passed the original The record is replete with similar quotes noting the act, we had not yet experienced an energy crisis. The 1973 oil embargo forced a urgency of this Nation's energy problems and the Congressional recognition that an alteration in our national energy policy was mandatory. In intent that the CZMA provide a structure to lead to their reso- an effort to implement a more valid energy policy, we could not but realize there lution, particularly with respect to reducing the dependency of should be an increased demand for the oil and gas resources which are available this Nation upon imported oil. beneath our offshore areas. Individual coastal states are ill-equipped to cope Congress was thus clearly concerned with expediting with inherent impacts as we pursue offshore leasing programs, deepwater ports, and energy development, and it did not choose to enact toothless additional energy facilities. We cannot hope to secure a policy of energy self-- legislation which, although giving the States substantial sufficien y, without these offshore de osits, and we surely cannot expect to funds and powers, demanded nothing from them in return. retain them without smooth cooperation between the Federal Government, and State Consequently, as a condition for receipt of Federal funds to and local governments." pay for their management programs, the States are required to Cons. Record, July 30, 1976, at H 7076 (emphasis added). include specific guarantees within those management programs In summary, then, it was the view of Congress that if that these Federal funds would not be used to thwart the financial help was provided coastal states in adjusting to purposes of the Federal law. Hence, the indispensibility of increased development of energy resources, the cooperation of such provisions. these states might be enlisted in meeting the national It is true, of course, that existing legislation objective of increased OCS oil and gas production. provides a planning and permitting process especially for This purpose was echoed by Congressman DuPont, a energy facility siting./ It appears to us, however, that the manager of the amendments in the House, who observed: process, as currently configured, will seriously impede, rather "I believe that this bill represents a very than enhance, the program's ability to serve the national significant, 'important action by this Congress. There has been much rhetoric interest in achieving greater energy self-sufficiency. We say --during this past session concerning the best ways to deal with our nation's ongoing this for the following reasons: energy crisis, but nothing has been done to tackle the problems head-on. With the As the discussion beginning at amended page 259 of passage of this bill, this Conqress will make a maior commitment towards our the program outlines, all activity in the Massachusetts coastal national goal o energy sef-sfficienc ..... '. ....- , I 1. ..... zone is directed by the Executive Office of Environmental Legislative History of the CZMA, supra, at 1097-98 (emphasis added). 25/ MGLA, C. 64, 5�69 G-S. - 23 - -24 - 12.;- Affairs. In the case of energy facilities, that office must nothing, and is probably not enforceable in any event. 28/In obtain approval from the Energy Facilities Siting Council (an short, there is nothing in the Massachusetts Coastal Zone 26 / autonomous agency created by the legislature).-- The Energy Management Plan that will assure or guarantee that new energy Facilities Siting Council is empowered to determine the state's facilities can be established in the coastal zone or that need for and the siting of electric generating, gas, and oil existing facilities can be expanded in connection with OCS facilities. activity or any other activities. As previously observed, in the discharge of its Nor does the process hold much hope for the responsibilities, the Council is bound by statute to insure a expeditious processing of permits for petroleum facilities, as necessary energy supply for Massachusetts with a minimum impact the following discussion of the rather lengthy and complex on the environment at the lowest possible cost. Moreover, the procedure to be followed in obtaining approval for the siting Council, in its review, must determine whether the proposed of oil facilities sakes clear: facilities are consistent with current state health, Not later than one year prior to commencement of environmental protection, and resource use and development construction of an oil facility, or not later than two years policies. The Energy Facilities Siting Council may inquire prior to commencement of construction of a facility for the into the need for the facility, the economics of the facility, refining of oil designed so that more than thirty five per cent and the alternative proposals and sites, but without Council of its output could be gasoline or refined oil products lighter aporoval, other state permitting agencies may not issue permits than gasoline, an oil company must file with the council a that may be required for the construction of an energy notice of intention to construct an oil facility. Such notice facility. must include, in such form and detail as prescribed by the The only connection between the Executive Office of Council, in addition to a detailed description of the proposed Environmental Affairs and the Energy Facilities Siting Council facility and site, the following information for the region with regard to siting of energy facilities, is a two page expected to be served by the oil facility: memorandum of understanding which expressly states that it does not "expand or limit [either agency's] existing statutory powers in any way.'27 The fact is that the memorandum changes See discussion supra, commencing at page 7. 26/ I~d. 27/ Program, Appendix A, p. 19. 26 3- 2 - (I) A description of the applicant's current facility is to be located. The Council is required to take activities involving the transshipment, transportation, action of the notice of intention to construct an oil facility storage, or refining of oil or refined oil products. within twelve months of the filing and twenty-four months from (2) A description of the applicant's qualification the filing in the case of a refinery. and capability in transshipment, transportation, storage, The prime basis for approval of a notice of Intention refining and marketing of oil or refined oil products. to construct an oil facility is that all information regarding (3) An analysis of the proposed facility including sources of supply for such facility and financial information but not limited to a description of alternatives to the planned regarding the applicant and its proposed facility are action, such as other site locations, other oil facilities, and substantially accurate and complete, that the Council is no additional oil facilities; and a description of the satisfied as to the adequacy of the applicant's capital er-.iron!"sntal i-pact of the proposed facility, said description investment plans to complete its facility, the long term to include buffer zones and other measures to minimize damage economic viability of the facility, thA overall financial to the environment, soundness of the applicant, the qualification and capability of (4) A description of the capital investment plan the applicant in the transshipment, transportation, storage, proposed for such facility, and the overall financial soundness refining and marketing of oil or refined oil products, and that of the company and economic viability of the facility, includ- plans including buffer zones or alternatives thereto for the ing insurance coverage during construction and operation. applicant's new facility are consistent with current state Further, no oil company may commence construction of health, environmental protection and resource use and an oil facility-unless a notice of intention to construct such development policies. oil facility filed in accordance with this section, has been The law does provide that oil companies, as well as aporoved by the council. Approval of such notice of intention electric and gas companies, may petition the council for a to construct an oil facility may not be considered approval of certificate of environmental impact and public need with construction permits by state agencies. respect to new facilities which, if issued, would allow After the~not.ice of intention to construct an oil construction notwithstanding state and local permit facility is-filed the council hold a public-adjudicatory requirements but subject to federal air and water standards. Droceeding withis six months of filing. In addition, a public Pursuant to these provisions the Council will consider a hearing must be held in each locality wherein the proposed oil petition for the electric, gas or oil company prevented from - 27 - - 28 - I a'i building a facility because it cannot meet standards imposed by laws (local ordinances and by-laws, Wetlands Protection Act, a state or local agency with commercially available equipment Waterway Program, Ocean Sanctuary Program, Land Conservation or because the processing or granting by a state or local Restoration Program, etc.) that greatly restrict if not totally agency of any approval, consent, permit or certificate has been prohibit the siting of energy facilities, and therefore the unduly delayed for any reason, including the preparation and industry is in effect excluded from the coastal zone. publication of any environmental impact report or if the Hence, the planning process does not appear to afford electric, gas or oil company believes that there are any effective guarantee that regional and national needs for inconsistencies among resource use permits issued by such state petroleum related facilities will not be stymied by local or local agencies. Similarly, the Council will consider peti- regulations. This failure contravenes not only the planning ticns which assert that the electric, gas or oil company process requirements of the Coastal Act, but also the national believes that a nonregulatory issue or condition has been interest in achieving greater energy self-sufficiency and the raised or irposed by such state or local agencies such as but Act's requirement that programs assure uses of greater than not limited to aesthetics and recreation: oY the facility local benefit, both of which are discussed in greater detail cannot be constructed due to any disapprovals, conditions or below. denials by 3 state or local agency or body, except with respect Further, while existing legislation provides that the to any lands or interests therein, excluding public ways, owned council may cooperate with other state agencies and the federal or managed by any state agency or local government. government, but there is no provision that there must be any This procedure, however, is of little practical cooperation in terms of the national interest. utility to oil facilities due to the followinq statutory In summary, although the Massachusetts plan proposes exception: to manage the coastal zone through the Executive Office of "With respect to the sitinq of oil facili- Environmental Affairs, the Snergy Facilities Siting Council is ties. other than oil pipRelines, this section shall not be construedtoove-rriLde the agency that will determine whether any energy facilities those local zoning by-laws in effect on the date when a notice of intention required by are sited or expanded in the coastal zone. It is further clear section sixty-nine I is filed.' that under the existing laws of the Commonwealth of (MGLA, Ch. 164, 5699.) Massachusetts that there is little if any chance that energy Currently most, if not all, of the land in the facilities will be sited or expanded in the coastal zone. coastal zone in Massachusetts is subject to local and State This most serious deficiency must be remedied before -29 - the program may be approved. - 30 - expressly require the preparing agency "to assess the positive IV and negative effects of the proposed action as it affects both THE DEIS FAILS TO MEET NEPA REQUIREMENTS the national and international environment." (40 C.F.R. Federal regulations designate the Environmental Impact Statement as the basic action document for evaluating 5l500.8(a)(3)(i).) The guidelines also direct that coastal zone management programs submitted for 5306 approval, (secondary or indirect, as well as primary or direct, conse- and because action of any program proposal is clearly major quences for the environment should be included . giving as examples of such indirect consequences " . . . associated federal action significantly affecting the quality of the human � i n v e s t m e n ~~~~~~~~~~~~~~~ts and changed patterns of social and economic en-;ironment,-29 it also is necessary to assess the sufficiency investmen activitieS." (Id. at $1500.8(a)(3)(ii).) Impact statements of the DEIS in terms of the requirements of the National ac Environmental Policy Act (hereafter sometimes 'NEPA').30/ should also contain "an indication of what other interests and considerations of federal policy' might offset the proposed The draft statement issued by OCZM has two essential action and alternatives. (Id. at 51500.8(a) (8).) deficiencies. First, it fails to provide a balanced and The required discussion must be thorough and probing. Thorough discussion of both the costs and benefits of the proposed action. Second, the DEIS commits itself to one parti- Yet, the DEIS here represents only a superficial analysis which considers only one viewpoint--the benefits of regulating cular course of action--full approval under 5306 and fails to coastal uses. No serious attention is paid to the costs meaningfully discuss possible alternatives, including continued program development funding under 5305. we will discuss each associated with a proposal such as that put forth by Massachu- of these points in order. setts. It may very well be that if the general objectives of A. the Massachusetts program had legal force and could in fact be Failure To Provide A implemented, that a balancing of costs and benefits might Balanced And Thorouqh Discussion result in an appreciable environmental gain. One cannot make The Council on Environmental Quality's guidelines for this judgment from a review of the DEIS, however, for the the preparation of Impact Statements pursuant to NEPA quite1/ necessary information is absent. Rather the authors of the DEIS, by focusing exclu- sively on benefits, have developed a document which does much 2_99/ 15 C.F.R. 5925. more to promote the approval of the Massachusetts program than 30/ National Environmental Policy Act, 42 U.S.. 4321 et seq. (hereafter "NEPA") . it does to critically appraise that proposal's environmental 31/ 40 C.F.R. Part 1500 (hereafter "EIS guidelines" or 'guide- - 32 - lines"). -31- impact. Yet the latter is the only purpose of an EIS. 'An ES NE reuremen are pefally "NEPA's requirements are specifically may not be used as a promotional document in favor of the designed to counter the inevitable agency bias in favor of a proposal or project that proposal, at the expense of a thorough and rigorous analysis of it has recommended, Environmental Def. Fund v. Corps of Enq., supra, end to effectuate environmental risks." Brooks v. Volpe, 380 F.Supp. 1287 (W.D. substantive changes in the agency decision making process." (Citation omitted.) Wash. 1974). The case law is also quite clear that the McDowell v. Schlesinger, 404 F.Supp. required "thorough and rigorous analysis" is not achieved with 221, 241 (W.D.No. 1975). the approach utilized here by OCZH, of examining only selected An adequate discussion of alternatives is thus regarded by the views on the benefits of the proposal while ignoring negative cases as a prerequisite for an acceptable EIS. Calvert Cliffs evidence. Coord. Com. v. United States A.E. Comm'n, 449 F.2d 1109 (D.C. "(The Court'sl function is to Cir. 1971). The First Circuit has articulated this requirement assure that the statement sets forth the opposing scientific views, and does not as follows: take the arbitrary and impermissible approazh of :o-pletely omitting from the "Finally, and perhaps most substantively, state-ent, . . . any reference whatever to the requirement of a detailed statement the existence of responsible scientific helps insure the integrity of the process oinicns concerning possible adverse of decision by precluding stubborn problems environmental effects." or serious criticism from being swept under the rug. A conclusory statement 'unsup- Committee For Nuclear Responsibility, ported by empirical or experimental data, Inc. v. Seaborg, 463 F.2d 783, 787 scientific authorities, or explanatory (D.C., CiM. 1971 j. information of any kind' not only fails to crystallize issues, but 'affords no basis See also Appalachian Mountain Club v. Brineqar, 394 P.Supp. 105 for a comparison of the problems involved with the proposed project and the diffi- (D.N.H-. 1975); Duck River Preservation Ass'n v. Tennessee Val. culties involved in the alternatives.'" (Citations omitted.) Auth., 410 F.Supp. 758 (D.D.Tenn. 19741). ilva v. Lynn, 482 F.2d 1282, 1285 B. (lst Cir. 1973). Failure To Consider The subject DEIS clearly reveals that OCZM's decision-making Alternatives To The Proposed Action process has not been affected at all by the NEPA requirements, In enacting the National Environmental Policy Act, it for there is no meaningful discussion of any course of action was the objective of Congress to require that agencies con- other than that which the agency clearly seeks to promote--S306 sidering a proposal subject that proposal to a rigorous approval. Yet, there are many other options available to the analysis and, in the process, study and evaluate possible agency which should be just as thoroughly explored. Specifi- alternatives. cally, since the Massachusetts program is so clearly not - 33- - 34 - ia'7 currently approvable, any adequate CIS must examine the alter- C. native of continued program development funding pursuant to Objectivity Is Essential To S305. And OCZM must do much more than simply mention this The S 306 Approval Process. possibility. Further, the advantages and disadvantages of this Wholly aside from the requirements of tNE A, it is alternative vis-a-vis 5306 approval must be discussed. absolutely essential that OCZM retain its objectivty in Particularly, since S306 approval would bring the S307 reviewing programs submitted for S306 approval. Al ong comments 'consistency' provisions into effect, an adequate EIS must submitted to the Office of Coastal Zone Management regarding consider the impacts which may follow from such a decision in proposed coastal zone management program approval egulations view of the present incomplete and indefinite nature of (15 C.F.R. Part 923) were the following paragraphs outlining Massachusetts' proposal. Thus, in discussing alternative the need for OCZM to remain objective throughout t e program choices, the EIS must consider the possibility that S306 evaluation process: approval at this time might delay or disrupt beneficial coastal "0. Program Disapproval Must Remail A Viable Option Throughout ases and weigh this against continuation of S305 funding which The Review Process. would have no such adverse impact. Only through such an "The job of OCZM is not an easy ore. it is first required to work with states in analysis can alternatives be meaningfully assessed. The law is developing management programs and then it must make a fresh review of those progra ms clear that such a comparative analysis is required. Thus, the and objectively determine whether or rot the requirements of the CZMA have been met. court in Iowa Citizens For Bnvironmental Quality, Inc. v. Such objective review is clearly very difficult where the same personnel charsed Volpe, 487 F.2d 849, 852 (8th Cir. 1973), make specific mention with conducting the review and assembling and evaluating the evidence were respen- of " . . . the exhaustive analysis which would be required if sible at a orior stage for encouraging development of that program which they ire significant differences in environmental impact among alterna- now called upon to critique. tives were present." (Emphasis supplied.) See also Minnesota "It would be fairer to both the O ZM staff and the review process for the age rcy Public Research Group v. Butz, 401 F.Supp. 1276 (D.Minn. 1975). to internally separate the development nd review functions. The natural consequence Because OCZM in this case has apparently committed itself to without such an arrangement--even with he very capable staff of OCZM--is that certain 5306 approval, analysis of alternatives is virtually assumptions made at the development st ge are never challenged and that limitaticns non-existent in the DEIS. For this reason it fails to comply which should perhaps not be accepted are. The review process thus becomes more of a with both the letter ard spirit of NEPA. defense and promotion of the program proposed rather than the objective evalua- tion which Congress intended. - 35 - - 36 - Natural Resources Defense Council, Inc. It tEAST 42ND STREET "To avoid this natural mutation of the NEW YOIK, N.Y. 30017 approval process--from a critical function 99 1s7ofi into one of advocacy--we suggest the regu- ro s 949-0049 917 Sa11t ATIEVT., ".m. lations expressly separate the development WIRINcTO", bc. sos and review functions within OCZM." was. to 7$7-o000 Comments of the Petroleum Industry WCae" *AL of 2315, TAL K nBlIrE on Proposed Coastal Zone Management pN. wv.d r*ALO ALTO CALIF. 94306 Program Approval Regulations, L Abb. 435 3a7-logo October 28, 1977, p. 7. _iudd The cause of our concern regarding maintaining the i A. C.Il,. viable option of program disapproval throughout the review wn J.ea1r. process is well illustrated by the failure of the DEIS in the December 15, 1977 instant case to critically analyze the Massachusetts program in I,.7J Robert Knecht *,, h_ Associate Administrator terms of its statutory approvability and by the failure of the dnpd Office of Coastal Zone Management Fibs Page Bldg. 1 state-ent to objectively evaluate the alternatives to A 306 3300 Whitehaven Street, NW Washington, D.C. 20235 a==roval. ' Dear Bob, LA Talyel V A. Ttm Enlosed are NRDC's comments on the Massachusetts Coastal AIlnMMu. Zone Management Program and the State of Massachusetts CONCLUSION . Coastal Management Draft Environmental Imapct Statement. tr~rDkrtX Also enclosed is a copy of NRDC's statement presented at For all the reasons set forth above, it is submitted the November 22 joint federal/state hearing on the Mass- achusetts Program and the DEIS. that the Massachusetts Coastal Zone Management Program falls Because of our concern about this program, we would like short of the requirements for approval and that the DEIS to meet with you to discuss the program and our comments as soon as possible. does not satisfy the requirements of the National Environmental Policy Act. Approval of these documents in their present for, aitcerely Yours, should be denied. Rather, we hope that the foregoing comments \ is and the evaluation of the program in accordance with I 305(d), Sarah Chasis preliminary approval regulations will prove to be of use in Enclosures strengthening the Massachusetts program so as to meet all the objectives of the Coastal Zone Management Act. - 37 - LAWv Orl-long MxRECOU ~~~~~~~~~~~F. baice a M.XSSACHUSE-FfS FETRO(ILLIM COUINCIL c"A 011AI 33 Mr. Vruurtni S~~atilir "'*~~~'**~ ai DEACON STRECT, ROSTON. MASS,...ad T. floc~~~~~~~~~~~~~~~~~~~~~ ~~(617) 227.:1411 December 19, 3.977h# ic~adOcno Office of Coastal Zone Imnagement Eveyn urplylSecretary 3300 4whitellyeii Street, .W.. Executive Office Of Washington, D.C. 20235 10 amrdeSee t 7ta loofars M Comment" an the State at Massachusetts Co tax~ 100 Comb ridge Street -20th Floor *s~~~anagement Program and Draft Evrnet Botn I 02202 Impact Statement 142 Fed. Reg. S5632-Oato ve Il, ISP7~ REI M.assachu~attl Czhi ~rclszrt Dear Mr. O'Connor: As Executive Director of the Mass~achusett ]Petroleum ouncil1, Dear Secretary Hu~~~~~~~r~hY' ~a DIVIGjon of the American Petroleum institute I welcome this Thnnkti~ ~uc':for so actively soliciting comments on the draft "Chapter opportunity to submit, an behalf of ou~r meme copnies, the Thanka ery Muc to th MassacusettsC73-1 Pogramfollowing commeents on the Massachusetts oatlMan"9gemen1 Program 21K'I regulationls found in tile appendix HnaI~~ nitially subpitted for federal approval an Ha ch la, l9, , and volume 1. They are very important to the Pr.ogram. the'Draft Environmental Impact Statement MIS51 prepared by ah We knowthat tese reglationi and a-ccll~ "proces reguattofls whichOffice of coastal gone management proposin ap Coava of t J." and o-caled Procss egultion" Ulich rogam prsuat to5 40 of the coasta zone I~nagement J&t will, e adp ed frLec gny will be the subject of laterpbi er r'rI usatt 0 l11~ p Wing e andoped fhe stae adnn~rntyivp, prceur ct. Robin -Lap,3re and Eric At tile outset, we wish to acknowledge the1 time 'Ind 11 fort vang Lon hv bee ry efetilest towAeveisra 'n urging early sube~ital of fwhich were obviously expended In preparing the Hasaa~rchus ta coaxaeoLoon'v theen Vdraf reffctie owever We watd.to get the enclosed cn-Progrest. In our judgment, the program represeas t thlosig tful aents to you soyou couldOhaveWe resu ts fe t8Crvee~ hna approach to coastal Zone management. X11d84J Some of the olicies tile results Of ~~~~ discussed in the program and the mechanisms propoefr he the sm im o have thle 1HRDO coaseents Ont tile Programi itself and the Ipeetto ft08pl~S 0frtwr lt11tl thef same Wile YOUkfradt discussiflg the N-ROC Positionl, and your procedural and substantive requirements.mo eb h 1.oa Draspft EI, Wat oo fourseigwit am ic ric has scheduled for 11:30 A.Hi. Coastal Act.- e hresponse, at3~ Four imeoetigdt O bync the ' lagil b flying in Decomber 22. Sarah Chaois, NIWC Staff Attor"(yFo the reasons discussed below, however, the tMas'ac setts this Throdmy Dew Yo frtat meeting. Thank you for your co uts in Programs does not yet fully meet the statutory rquirament for to get together.~~~~~~~ 306i approval. oil the other hand, the progrea appears tc warraut arranging tells time togttgte.further developmental. funding pursuant to 1 305 Of SincerelYp Duo to the program's massiveness, we haov not atteepteri to provide an exhaustive catalogue of Its strepgths aod freaknnses. - L I at~her, we have attomptetl only to address the rogram's Cor signi9oficant deficiencies and certain aspects of the progra which Gregor 1. ~~~~~ ~~~~~~~~~we consider desirable. GRlkO/dmr Sincerely, Ccc Wi:lliam I Matuszeski, Director of ?VWa Sta'te Progrossg/Off ice of CZHJ/Wachiflgton JIxqcuti:ve Direcfcor INTRODUCTION This Commentary was prepared as part of the Atlantic Coast Project of the Natural Resources Defense Council, Inc. NRDC is a national organization, with more than 35,000 members, dedicated to the wide use of natural re- sources. Through its Atlantic Coast Project NRDC encourages state govern- ments to use the maximum legal authority available to manage the coastal zone and encourages the federal government to use its maximum authority available under the Coastal Zone Management Act of 1972. These comments are divided into two parts: the first devoted to the pro- posed regulations of the Executive Office of Environmental Affairs to implement the Massachusetts CZH Program, and the second to the so-called "process regulations" to be adopted by each EOEA agency and other agencies to implement certain special procedures under the CZM Program. Some of the more important conclusions are: COHMENHTS OF THEHNATURAL RFSOURCES DEFEHSE COURCIL~ IHC. COENTS F THE NATURAL RESOUES DEnSE COUNCIL, C. 1. The regulations may need reshaping to reflect what an ON THE MASSACHUSETTS DRAFT CZK REGULATIONS Opinion of the Attorney General advises regarding legal authority for the Massachusetts Program; 2. Specific standards are needed for the Secretary to exclude December 19, 1977 any EOEA agency from the program; 3. What constitutes the CZM Plan and the CZH Program needs to be clarified; 4. The sources of environmental policy in Massachusetts should be better specified; 5. Some policies are good but most are too soft and need re- working; 6. To incorporate in these regulations the entire CZM Plan is unwieldy; Gregor I. McGregor, Esq. 7. The weight to be given to the CZM Plan in adjudicatory pro- 33 Mt, Vernon Street ceedings must be identified, and what it means to be "'dis- Boston, MA 02108 positive"; (617) 227-7289 8. The loopholes need to be closed for the Secretary to exempt For NRDC, Inc. agency decisions from the program; 9. Substantive agency regulations, to supplement these procedural regulations, still are needed to make the program workable and to provide the requisite legal authority; 10. Regional and other advisory boards should be given meaningful tasks; 11. The details of Secretary "conflict resolutions" should be added; 13. The standards for the Secretary's override on consistency NRDC COMMENTS ON THE CHAPTER 21A REGULATIONS need to be promulgated so that the process is not politicized; OF THE MASSACHUSETTS CZM PROGRAM 14. Automatic "equivalency" certifications of consistency should be further discouraged; 15. Other program decisions, such as permits and funding decisions, These comments will address the format and purp ps of the propo ed ought to be added to the category of "management program decisions" regulations to be promulgated by the Secretary of Environmental Affairs circulated widely to the public; to implement the Massachusetts CZM Program. We .derstand thes draft regulations will be subject to further public r ew as part of a hearing 16. And the "process regulations" should be revised to prevent over- under the Administrative Procedure Act prior to pomulgation, arId we will reliance on a single person to trigger review of agency decisions make comment at that time on the final form of he regulation for conformity with CZM policies and to isolate CZM coordinators from political and personal pressures, Any agency decision affect- Regulation 1.0 (Authority): This regulation p its up that the Massa- ing the coastal zone ought to be accompanied by an affirmative, chusetts CZM Program is based primarily on reor ization legis ation that written finding of consistency with CZM policies, is coordinative in nature. It is only a small tion of the e abling legislation which authorizes the Secretary to r lve conflicts and administer programs jointly agreed to. The 1 6 legislation Euthorized studies and recommendations with a view to impr vements in orgarization, procedures, practices, economy, efficiency and mproductive wor1 and fund- ing. Added to this was some budgetary and other financial authc rity. The 1973 legislation added essentially budgetary au hority together with some administrative powers regarding creation of posltions and hirint of per- sonnel, and general operating procedures. Othef prts of the 1973 legisla- tion called for recommendations from the Execut vei Office regarding dupli- cate and overlapping functions, administrative Ira:tices and facilities, information systems, coordinated and joint plan g, lines of a uthority and allocation of responsibility, delivery of srv ices, and career oppor- tunities. Finally, the 1974 legislation put into affect ali enCabling statute for the Executive Office. In view of the stress on coo di ation in this legisla- tion and in the earlier legislation, the questicn Ls still open whether Massachusetts can interpret this legislation his toy to support asing the "resolution of conflicts" and the "joint prograni" authority of t e Secretary as a basis for a CZM Program. The 1975 legislatioi essentially reorganized the EOEA agencies and shifted functional responibtlities. An Opinion of the Attorney General is still badly needed. Suh m Opinion mus establish that the Secretary has legal authority to create tLe program as she proposes. The Opinion must also establish that the ptogras/ a created confrrs the authority necessary to "manage" the coastal zone a required by :he Coastal Zone Management Act of 1972. Regulation 2.0 (Purdose): The final text of ths regulation alse will be dependent upon the results of an Opinion of the At :orney General It states the purpose of these regulations as being to imp le ent the CZM P an and this may need reshaping if some other mechanism is necsary. Incidentally, this regulation and Regulation 5.2 overlap somewhal and they might be combined so that all the purposes of thbes regulations ;re found in one place. ii -2- -3- Regulation 3.0 (Definitions): The definition of "appropriate EOEA agency" certain areas to permitted uses (8a); conditioning new development in gives the Secretary the authority to exclude EOEA agencies from coverage contiguous upland areas, especially within APR's, to insure that exist- of these regulations. The regulation purports to list all the agencies ing hazards are not exacerbated and that the proposed uses or activities which will automatically be included but apparently, upon consultation with are appropriate in light of the risk of damage (8b); implementing the Secretary, individual agencies may be exempted. Yet there are no criteria structural solutions to protect property And lives only when there will for this judgment. It is possible there may be partial exemptions. This be widespread public benefits and minimal adverse environmental effects exemption process must be carried out only with good public scrutiny and (12a); approving permits for private flood or erosion control projects with adequate standards. These exemption decisions must be included as only when there will be no adverse effects on adjacent properties or "management program decisions" under Regulation 6.64 because they are downcoast areas (12b). critical to the program. There is no sense promulgating a CZK Program which appears to accomplish much but which in actual implementation is much All policies which are invoked as part of this CZI Program ought to be diluted. No agency on which the CZM Plan relies should be excluded, this precise or more so. Any policies not meeting this standard of specificity ought not to be regarded as policies. They ought to be called As to "areas of critical environmental concern" and "areas for preservation goals or guidelines or recomendations, Also, they ought to be separated or restoration" there ought to be some central location of basic explanations from the enforceable policies in the text of any program documents or to make these ACEC and APR acronyms less confusing. regulations so that the public does not get the erroneous impression that they will have any firm effect as part of the management of the coastal zone. Regarding the "coastal zone" boundary, it is not clear from the definition whether the natural resources inland of the boundary roads, rail lines or It should be observed that policy 8b and 8c adopt language not hoi found rights-of-way have been mapped. If so, the definition should reference the in the agency programs which will be enlisted to accomplish these policies. maps. If not, the definition should reference more detailed descriptions of This again points up the need for amendments to substantive agency regula- these natural resources so that the public may know precisely where the tions before the program can be effective. boundary goes. Regulation 5.A: Thin regulation purports to incorporate "by reference" The definition of "CZM Plan" appears to be dated, referring to a continuing the entire CZM Plan. We understand that this regulation will be changed review of certain officials. Also, the reference to "other material" in because of the size of the CZN Plan and because of the uncertainty of whaL addition to maps, regional chapters, implementation measures, policies, it means in the regulation to incorporate the Plan "in order to clarify, objectives and text is too vague. There ought to be some way the public can support, implement and elaborate upon the policies." ask for a copy of the "CZM Plan" and be given a copy which is a manageable, understandable document with minimal ambiguity and cross-referencing. Rterulation5d: The reference to the evidentiary weight of the CZM Plan should be pulled out of this regulation and treated separately. It is a Regulation 5.1 (State Environmental Policy) The definition of environmental very important concern. It must be specified how in "any adjudicatory policy for Massachusetts includes an amendment to the state Constitution plus hearing" the Plan is to be treated as dispositive (incidentially, this the text of part of the -Massachusetts Environmental Policy Act. The defini- should read "adjudicatory proceeding"). Also it should be specified in tionalso includes certain unspecified Executive Orders "or other statements" what respect the Plan is "dispositive". The language probably ought to yet to be issued by the Governor, plus statements of environmental policy yet say that the elements of the CaM Plan shall govern in the resolution of to be promulgated by the Secretary of Environmental Affairs. And, even more all disputed findings .of fact and questions of law involving coastal matters. vague, statements of policy promulgated by other Secretaries yet to be It is not clear what the regulation means by occasions "when the weight to "adopted" by the EOEA Secretary. Again, the public is entitled to be able to be accorded to the CZM Plan is at issue" and that language should be elimi- ask for copies of state environmental policy and be given discrete documents mated. The point is that the CZM regulations govern agency affairs except which are complete and self-contained. This open ended policy declaration in as provided in Regulation 5,6. Regulation 5,1 really does not contribute much to implementation of a CZH Program. Regulation 5,6: This regulation offers tremendous loopholes, It is an open invitation for agencies to avoid responsibilities under the coastal zone Regulation 5.3: Of these listed environmental policies for the coastal zone, program since it invites agencies to claim that actions required of them under some are good and some are weak. Most are too general to enforce and many are the CZM Program would be "impermissible at law" and to ask the Secretary to plainly unenforceable. Some call merely for "review", "consideration", "en- override the agencies' CZM responsibilities because of "more substantial and couragement" or similar "soft" directives, Examples of good ones include compelling public interests", The regulation provides no standards for making conditioning construction in water and contiguous land areas to minimize these judgments. The regulation allows the agency to make these judgments in interference with water circulation and sediment transport and to preserve the first instance and issue a permit or other decision in conflict with CZM water quality and marine productivity (4); restricting new development in policies, forcing the CZH coordinator or other agency personnel to appeal to I33 the .Secretary. Instead of this, the burden really ought to be on any agency -4- to make written findings as to why any particular action is "impermissible at law" or why the CZM responsibilities ought to be overridden by "more substantial and compelling public interests." Any such permit or other decision based on such reasoning ought to be postponed in its effectiveness until the Secretary affirmatively agrees in writing that these loopholes findings in any event. Regulation 6,28 (d) now would s ake t t Optional may be invoked. As it stands now too many things will Just slide through.* at t he discretion of the Director of CZM, It is seriob s oes for the Secretary to find that an action would be impermissible at 1I or that the Incidentally, this regulation apparently should be redrafted to cover situa- CZM policies should be overridden for more substantial and c -pelling public tions where what the CZM policy requires is impermissible under the agency interests or concerns, This is the ultimate escape frm app ication of the "enabling legislation" not Just "impermissible at law" which would include program and the procedures ought to be appropriately r u mere agency regulations. Once again it is apparent that what is legally permissible u der agency Regulation 5.7: This regulation mandates amendments (and new regulations) enabling acts is still undecided and very much unclear. IWeaed a close where necessary to make the CZM Program work. The Commentary with this examination of the EOEA agency statutes to determine w1at is the ultimate regulation emphasizes that: reach of their authority, To date this has not been dcne, The extent to which the CZM Plan, as a statement of the state The test of whether there are more substantial and coelln public Il- terests unforunately will politicize the CZM process. Th are no environmental policy, operates to affect the decisions of the terets unforunately will politicize the CZM process. There are no guide- EOEA agencies is determined by reference to the scope of authority lines or criteria for this judgment and what these critical erms mean is under each EOEA law. open to the imagination of those seeking to escape the progr mt This again points up the need for substantive agency regulations before pro- As t coordination with MA (see the alternative choices at Regulation 6.28 gram approval plus a legal analysis of the authority conferred statute-by- (c)), the conflict resolution process should be subject to statute to illustrate that authority is there to "manage" the coastal zone the Secretary might resolve a conflict in a way that results in issuance of as required by federal law. a different permit then the agency proposed when the early PA determina- tions were made. Regulation 5.8 and 5.9 (Advisory Councils): These regulations provide the central authority for the Advisory Councils. These boards will be given central authorit"These boards will be given categorical exemption" under MEPA for any project in an arer of critical very limited roles, although this is typical in state CZM programs, Instead categorical exemption" under MEPA for any project in an are of critical they ought to be given substantive program authority to make public partici- environmental concern (see Regulation 650 but projects in such areas ought pation meaningful. Unfortunately, without new legislation the Massachusetts to be subject to "categorical inclusion" automatically trigg ring a require- Program cannot offer such innovative involvement of the public. Instead there n t for an Environmental Impact Report. Amendments to MEPA now pending, is every danger that these Advisory Councils will become "advised councils". and likely to be enacted, will authorze creation of such "c tegorical in- Massachusetts ought to decide what it wants to accomplish with these councils clusions" and it is very logical to use them for work in crical areas, and they ought to be directed (by the word "shall") to do that, Otherwise, the program administrators may be tempted to regard the Councils as mere Also, for areas of critical environmental concern there ugh no auto- baggage. matic finding of federal consistency (based merely upon the asuance of ap- propriate state permits). This so-called "equivalency" appr ach to federal Regulation 6.20 (Resolution of Conflicts): This regulation should flesh out consistency ought not to apply when the work will be in such an area, Instead the details of this conflict resolution procedure. Regulation 6.26 should there ought to be case-by-case judgment by the CZM Offi:e. egulation 6,50 specify that any ten citizens have the right to intervene in the entire promises that the CZM Office will conduct such reviews ad i sue concurrence conflict resolution "proceeding" not just some "hearing" which may or may only when federal projects are consistent with the "purpose f preserving or not be held. This is what the Citizen Right of Intervention provides ings Massachusetts, intervention in an "adjudicatory proceeding". The public ought to be informed of conflicts, not just the persons whose legal rights, duties or privileges may be involved. The Advisory Council for the area There is no reason for Regulation 6,52 to l eave unaffeced bdesignation filed where the project is located ought to be formally involved in the conflictea any project for which an application aleady has been filed resolution procedure, not just a forum for discussion and a central point for with an EOEA agency or for which a notice has been issued tht an Environmental data collection as specified in regulation 5.8 (B). A conflict resolution Assessment Form or EIR need not be prepared, If areas re s critical as to decision (not just a conflict resolution "hearing" as in Relation 626 (d)) warrant case-by-case decisions on the environmental imp t projects, then ought to be a "management program decision". If the Secrete~ry finds con- projects caught in mid-stream ought to be so reviewed, The is no prejudice trary to the CZM Plan and a statement of findings is not prepared because in doing so, No final decision has been made, No been taken in there was no ajudicatory hearing, then the Secretary ought to make written reliance upon a final decision of any agency, The way tion 6,52 is now drafted, it is likely that persons with projects affect ng tical areas which have been nominated will dump applications with EOEA ag nie just to take *"Regulation 6.28(a)(2) and "process regulations" 3.1 and 4.25 seem to indi- advantage of this overly broad grandfather clause. cate the agency can decide to issue or permit under the "impermissible at law" exemption but only the Secretary can invoke the other exemption. However, the g3L MOU's seem to put the burden of invoking the entire "conflict reduction" - ,,,. process on the Secretary. Also, process regulation 5.1 fails to make clear no permit can issue until the conflict is resolved. Regulation 6.60 (Consultation): It is a good idea to publicize "management program decisions". One problem is that this coastal zone information will The proposed Massachusetts consistency regulations are primarily pro- be mixed with other information in the so-called Monitor. It might be better cedural. The greatest failing of the federal regulations, and state to establish a separate section of the Monitor for coastal zone affairs, consistency regulations in almost all CZM states, is the failure to Another problem is that Regulation 6.64 does not include as management program set forth consistency criteria. Consistency is one of the most critical decisions any individual permit or regulatory actions, issuance of grants or judgments to be made under the Coastal Zone Management Act and, even in construction programs. This means Division of Water Pollution Control grants the absence of adequate federal guidance on this subject, Massachusetts for municipal sewers, and even permits under the Wetlands Protection Act for ought to make its best effort to set forth the standards for measuring large projects will not be circulated for consultation, A third problem is federal actions against the state program. Otherwise consistency becomes that an agency may select an alternative to publication in the Monitor for a political process and the environment may suffer. certain management program decisions, If this route is taken, the Monitor ought to publicize that this decision has been made, plus where alternative For instance, in a program utilizing "networking" the state should specify notice may be obtained. what constitutes the CZM Plan with which the federal activities must be consistent; where the plan may be obtained; what weight is to be given to The punishment in Regulation 6.67 for local government action which conflicts Memos of Understanding; what weight is to be given the Regional Chapters; or interferes with a proposed management decision ought to be redrafted. what weight is to be given guidelines as opposed to policies; which policies There is no need for a municipality to forfeit its rights to comment and to are enforceable and which are not, and what that means for consistency pur- request a public hearing (which has no analogue anyway). Instead it might poses; and what weight is to be given to actual practice in state implemen- just be provided that actions of local government conflicting or interfering tation of its program where it differ from the text of the CZM Plan, Must with the proposed management decision shall not be given any weight. In the the policies be read literally, or "as implemented"? alternative, if this provision is designed to prevent municipalities from making decisions on zoning variances which would be inconsistent with Coastal Regulation 7,16 is possibly the most important. Apparently it is the Massa- Wetlands Restriction Orders, or site plan approvals at the local level of chusetts response to an invitation of the federal government to create development within a nominated Area of Critical Environmental Concern, or "equivalency" approaches to consistency. That is, specifying that issuance locating a sewage treatment plant on a designated scenic river and so forth, of certain state permits may substitute for a case-by-case consistency de- then this provision ought to be very much expanded, termination by the CZM Office. It is good that Regulation 7.6 (C) provides that the CZM Office can participate in agency deliberations on a permit, Regulation 7.00 (Federal Consistency): These regulations are critical to although this paragraph needs to be expanded to explain what is the meaning measure federal licenses or permits, financial assistance, Outer Continental of "circumstances which may require greater CZM involvement" and what is the Shelf activities, or activities or projects directly undertaken by the meaning of the CZM Office "appropriately" participating in agency decision federal government, against the Massachusetts CZM Program, making. The language should be revised to make clear that .the CZM Office may, in its discretion, override any explicit or implicit agency determina- Regulation 7.01 adopts the federal consistency regulations by reference, tion of consistency, and may proceed to conduct a case-by-case analysis and. "including future amendments",. Since the Massachusetts consistency regula- issuance of a CZM Office consistency certificate, tions will be widely utilized by persons interested in single permits or funding decisions, a more full description of federal consistency and what In view of the trial-and-error necessary to see how these consistency provisions that means might be included in the text of the regulations, or in commentary, will work, Regulation 7.16 (A) does seem to place too much faith in line agency For instance direct federal activities are subject to the consistency require- implementation of CZM policies,: at least initially, It calls for the CZM Office ments only if t.hep directly affect the coastal zone, but all other federal to concur on the federal consistency certificate as long as a line agency in actions are subject if they merely affect land or water use in the coastal EOEA is processing an application for a. state license or permit, It is unclear zone (funding decisions are covered if they "affect the coastal zone"), Some what is meant by "circumstances requiring CZM coordination, which would trigger text might be included describing that for direct federal activities, the special CZM Office review, Perhaps some suggestions are found in.the Commentary federal agency proposing the action submits the basic consitency notice, to Regulation 7.17, such as actions which have major policy implications, - which For licenses and permits, that is done by the applicant, for OCS activities, are addressed by several possibly contradictory policies qf the CZM -Plan, sor the person submitting the OCS Plan; for funding applications, the A-95 which are of a scale or magnitude that they require a thorough multi-agency Clearinghouse. Direct federal activities must be consistent "to the maximum review. extent practicable" with the state CZM Program. Other federal activities must be'eonsistent", without that qualification, and the federal regulations Regulation 9.3 (Amendments): As drafted, this regulation, read with Regulation indicate this difference is significant, Also, the nature of federal agency 5.4 incorporating the entire CZM Plan by reference into these regulations, could responsibility following a disagreement, and review by the Secretary of the result in implied amendments to these regulations without complying with the Interior might be described in the text of the Massachusetts Consistency Administrative Procedure Act. This is so because "minor amendments" to the Regulations, or in commentary, CZM Plan, including changes in maps, texts or policies, will be adopted auto- matically if not objected to, They would thereupon be legally effective with- Regulation 7,10(b) should add Nuclear Regulatory Commission nuclear plant put going through the regulationamending process until the Secretaftydecided construction, and operating licenses to those federal permits subject to i 35' to amend these regulations under Regulation 9,2 and 9.3 (A), these consistency regulations. -9-RD OETS NRDC COMMENTS ON MASSACHUSETTS CZM "PROCESS REGULATIONS" Hopefully, the Regulation 5.4 incorporation "by reference" will be eliminated, any substantive or procedural element of the CZH Plan which is to become legally effective will be incorporated in regulations, and any changes in regulations will go through the public hearing process of the Administrative These comments address the sample regulations found at: page a-69 of the Procedure Act. Appendix to the Massachusetts CZM Program, Volume 1. The introduction on that page suggests that separate procedural regulatlions like these will be adopted for permit and non-permit functions of DEQE and for simi- lar functions of other agencies involved in the CZM program. This is critical. The proposed regulations cover only permit functions of DEQE. Other functions of DEQE, such as funding of sewer construction, must have specific procedural regulations. The same :Ls true of agencies like the Department of Environmental Management (DEM) which must have new procedural regulations, for instance, to import CZM into the Wetlands Restriction Program. It is especially important to have the Energy Faci- lities Siting Council adopt "process regulations" to ulake CZM a functional part of that agency's business. Beyond that, it should be recognized that these "proci:ss regulations" address only procedures. All the agencies involved in implementing the CZN Program must also amend their substantive regulat:Lons to incorporate the CZM policies and the promises made in the Massachusetts CZM documents. The Massachusetts Plan promises ambitious use of the 1laterways Program, the Wetlands Protection Program, and the Wetlands Resi:riction Program. These promises, in many cases incorporating performani:e standards and specific conditions on coastal activities, must be translated to action by substantive regulations. These "process regulations" are offered in the Massacrhusetts CZM Plan for illustration only. These comments will address the sl:ructure and intent of the regulations, therefore, with the understanding that there will be op- portunity to comment on the fine points of drafting and the specific regu- lations for individual agencies at a later date. At Hiome point all the "process regulations" for DEQE and other agencies musi: be proposed and subject to public hearing under the Administrative Procedure Act. For now, these comments will track these specific paragraphs ii these regulations, preceded by a few general comments. Generally, the idea is a sound one to have special procedural regulations for each agency, which can be become known as the coaeital zone procedures for that agency. This suggests that when the substantive regulations of each agency also are amended, they be amended so as to, add a special section for coastal zone purposes. That way, the public wish:Lng to compile or use the "coastal zone regulations" of any agency may be referred to discrete CZM regulations rather than a much larger body of agency regulations which have CZM-related provisions scattered throughout. '34, -10- Regulation 4.23: It should be specified how the CZM coordinator must _ "communicate" the applicability of CZM policies to other staff persons. A disadvantage of these "process regulations" is the overreliance on a person to trigger CZM review of agency decisions. Presumably the per- Regulations 4.24 and 4.25; As discussed above, no agency decisions should son will be an agency employee assigned to the physical office where the be made without a written consistency finding by the coordinator, and the agency decisions are being made, with all the possibilities of personal Commissioner should be prevented from acting without it. friendships and physical proximity which make objective review difficult. Of course, it is an advantage to have the CZM coordinator physically pres- Regulation 5.1: This requires a person to initiate an appeal to the eant in the same-office where the agency decisions are being made, in order Secretary under the conflict resolution procedures. It should be changed, to seek to personally influence those decisions and the day-to-day deci- reflecting a requirement that there be a written consistency finding, so sion making processes.- It would be preferrable, however, to at least specify that the burden of invoking the conflict resolution procedures is on the that any "draft" or proposed agency decision requires an affirmative, agency staff or the Co-immisioner who feel that a permit or other decision written finding of consistency with the CZM program, issued by the CZM should be issued contrary to CZM policy. If the burden is on the CZM-. coordinator. In addition,' the Commissioner should be precluded from issuing coordinator (or upon other agency staff, or upon a member of the CZM central a permit or appeal decision without such a written consistency finding from staff) the interpersonal pressures or the lack of efficient communication the CZM coordinator. may prevent using the conflict resolution procedures as often as they should be. Regarding the specific paragraphs of the sample regulations we offer the following comments. Regulation 4.0: It is not clear who shall designate Regulation 6.1: This should be revised to indicate the CZM coordinator may the CZM coordinators. The regulation should provide that designation is "initiate or intervene in an adjudicatory proceeding. This will point up that by the Director of- the CZM Program. Designation should not be by the chief it is the entire agency decision making process on a permit which is "adjudi- official of the agency in which the CZM coordinator will be.located. More- catory" and not just the "hearing" which may or may not be a part thereof. over, the CZM coordinator- should not be selected from among employees of the It is a good idea to automatically confer upon the coordinator and the CZM agency already working in the office and should not have his or her salary office standing as parties in any such proceeding,'not just those "in which reviewed by the chief of the agency. The CZM coordinator should be, as much they intervene". as possible, an independent person, subject to the supervision of the CZM office. Regulation 4.22: This calls for the CZM coordinator to make important legal judgments regarding the statutory authority of the agency and technical judg- ments regarding consistency with CZM policies. As to the former, it should be noted that the coordinator will have very little discretion since Regulation 5.0 (B) provides that the coordinator must act in accordance with a prepared Memorandum jointly agreed to by attorneys for CZM and the-agency. As to judgments by the coordinator regarding consistency with CZUI policies, these may be very political in view of the generality of the CZM policies and the very broad override power of the Secretary of Environmental Affairs. The guts of the CZM Program are supposed to be these regulations adopted by the agencies. And yet the important criteria as to judging the statutory authority of each agency, and judging consistency with CZM policies , have yet to be for- mulated. It is very apparent that it is still important to have the statute- by-statute analysis of the scope of agency authority which NRDC recommended many months ago. The Rice Report, -itemizing statutory programs which can be networked, does not suffice. As to the consistency issue, it is apparent that judging the conformity of specific permits and other decisions for CZH policies will be as difficult for the CZM coordinator as it will be for those Judging the consistency of federal permits and projects. Very comprehensive and very specific "consistency" criteria are needed. r31 MASSACHUSETTS FEDERATION OF FLA NNING BOARDS INC. P. O. BOX 264 * BRAINTREE. ASS. 02184 NEW ENGLAND LEGAL FOUNDATION t 4DERhT1H v617) A43-5486 SUITE 1032 I STATLER OFFICE BL'IL1ING PLANNING BOSTON. MASSACHUSETT' 02118 BOARDSC 22 77 16571 542-259eo80ARS/t/t OFFICERS C0OSTitli^t r,$IrlT PHrLsi E, DOWN'.:.' ..... 'MRS. MARCELLA DANIELS December 20, 1977 Box 15. S. Chatham Vice President 'CHARLES E. DOWNE December 15, 1977 950 Watertown Sreetl. Newton Vice President Evelyn F. Murphy, Secret y VPilt RICHARD KESHIAN. ESQ. Executive office of Envir nmental Affairs I1050 Ma.. A-,.. Arlington 100eMats. Ave.. Arlington Leverett Saltonstall Buil ing �CHARLES KUSIK 100 Cambridge Street Kathryn Cousins West Rood. Richmond Boston, Massachusetts 022 2 Office of Coastal Zone Treasurer "JAMES M. HATCH Management 179 Pond St.. Holbrook Dear Secretary Murphy: 330 Whitehaven Street, N.W. $ecretary Erccutiv Director Washington, DC 20023 Legsaep A S hGALDI raES. At a meeting of the Board of Directors of the Massa- 65 Wayne Ave.. So. Brainttee chusetts Federation of P1 ing Boards held Saturday, RE: Proposed Massachusetts Coastal Zone Management LegislativeCo-Chairperson December 10, 1977, it was unanimously voted to sup- ~~~~~~~~~~~~Plan �~~~~'MARGUERITE MORRIS Plan17 Long View Terrace. Marshfild port the Coastal Zone Man gement Program. Directors Dear Ms. Cousins: WILLIAM CHEPULIS, NorthAndover Two of our officers are " ask"'force members and MRS. MADELYN A. McKIEWiminton they reported on what has transpired during the past ADELE MORONY, ESQ., Grafton Please be advised that New England Legal Foundation joins EDWARD A. J. POSKUS. Foxbo three years in the development of the CZM program. in the comments submitted on the draft environmental impact ALLAN PRAUGHT, ESQ.. Dedham 'JOHN J. ROSARIO. Hyannis statement by the Boston Chamber of Commerce, et al. pursuant DistrctSvpesor The Board's understanding is that the C7RM program to the letter dated December 13, 1975 from Robert Ruddock, DistrctNo does not violate "Home Ru e" or supersede "Local Esq. to you. ROBERTB. KIMBALL Zoning"; in fact, it call upon Planning Boards and Richmond Swamp Rd.. P.R. 49. Pilttlield Boards of Appeal to act a responsible local agencies Very truly yours, District No.2 Very truly yours, EDMUND SHEINOST in the management process 18 Alird St.. So. Hadley :t . a._-t g ,g, g District No.3 The program would help cu red tape on permit appli- T DONALDoRISING t. cations as well as provid assistance and funds for Harrison A. FitchreatyEtmLc.Stow irecrHarrDison A. Fitrict No.4 economic planning, conse ation, preservation of Legal Director 'EDWARDA. FLANAGAN historic sites, beaches a d sand dunes. 278 Pine StI. Tewksbury AF/mes CONDDONMcDONOUGH Based on the foregoing, e dorsement of the CZM pro- 80 School St. Manchester gram by the Board of Dire tors was given. District No. 5� JAMES BIRKETT Sincerely, Oxbow Rd.. Lincoln District No. SC "STEWART M. McKAY 16 Weston Ave.. Holbrook iHAOLD A ASHLEY Joseph M. Magaldi HAROLD A. ASHLEY 87 Pleasanl St.. Raynhbm Executive Director District No. 7 MS. M.A. GRAFTON RODGERS 81 BlaIlid Rd., Oerville JMM/mao District No. 8 DONALD T. VISCO 3 Firgro .,ds RdNt..,ket Y WALTERS. S.AliRElqT Fair Street. Nantucket Immediate Pas Prcrsidrnt 'A. DANIEL GILLIS Box 142. Wilmingonl t'ecoulive CoinmiliJe Natural Resources Defense Counci, Inco 122 EAST 421N0 STRET NEW YORK, N.Y. 30017 BOARD O'F TRIJITEK OK $ftpl.- P. DOW-WSIGr" .C. *D7500 Choif see 81-5000 I)~~ COMMENTS Jac~w M.,dsnoU - rb. Ch..s.M. W.Wlm Olo VW. ch.o2 V.Wo.,ALO' ALTO. CALlS. 94306 Do. b.. 9 Ao.o.h 415 X7..iOSO NATURAL RESOURCES DEFENSE COUNCIL ood sool. Aod~hmoor SotbL 31Bak. ATLANTIC COAST PROJECT foodolok A. 0,,.M r. .R). Dlcrrw~'c~"lw", --ODecember 21917 AltI. M.Joaopby.Jo. ON THE Le.&-tw William Matuszexski Kathy Cousins MASSACHUSETTS COASTAL ZONE F..dn0ko1ooko~ John jilhalland ~"E~e=~b, Office of Coastal Zone Mana MANAGEMENT PROGRAM C".d. D. R..Ml Page Bldg. 1 lt~bct Rdi..d 3300 Whitehaven Street, W AND THE x===leoFd Washington D.C. 20235 Jwil-l o- STATE OF MASSACHUSETTS WhltooTNoomhSmoyor.JV. Dear 0111, Kathy and John, "~oU ldSLrr Deao .1ol, Kathy and jh DRAFT ENVIRONMENTAL IMPACT STATEMENT 9- to A.bTt DM- DC~~WOtlo~bbt Enclosed are NRDC's comments on the Massachusetts Coastal Jo...5.d'Uo Zone Management Program and the State of Massachusetts Coastal Management Draft Environmental Impact Statement. Also enclosed is a copy of NRDC's statement presented at the November 22, 1977 joint federal/state hearing on the Massachusetts Program and DEIS. Gregor i. McGregor is sending to your office under separate cover NRDC's comments on the draft Chapter 21A regulations. We would like to meet with you to discuss NRDC68 comments as soon as possible. Prepared by: Sarah Chasis, Staff Attorney Natural Resources Defense Council ousSincerely, 122 East 42nd Street /J~;rd ~ICL11. New York, New York 10017 Gregor I. McGregoi7 Vf Sarah Chasis '~ at..~.g 3~te172Tey 33 Mount Vernon Street EBeacon Hill December 15, 1977 Boston, Massachusetts 02108 .71~~~~~~~~~~~~3 -2- or not the Massachusetts program, as presently constituted, meets the requirements of the CZMA. Because Massachusetts is the Atlantic Coast state closest to approval by the Secretary of Commerce, The Natural Resources Defense Council ("NRDC") is a NRDC considers the Massachusetts program to be of considerable national nonprofit organization, with a membership of over significance. The program and its treatment by the Office of 35,000, dedicated to the wise use of this nation's natural re- Coastal Zone Management will be of great interest to other coastal sources and the protection of the human environment. Because states now in the process of developing their own coastal programs. of the accelerated destruction of the nation's coast by short- sighted development, elimination of wildlife habitat, marine NRDC is in league with the states ii seeking strong and and estuarine pollution, and loss of public access to beaches, effective management programs. NRDC is sympathetic to the time NRDC has developed an Atlantic Coast Project dedicated to the and money invested in the state CZM programs it is critiqaing. protection and wise use of coastal resources. As part of this At the same time, NRDC believes if a state s program does not project, NRDC staff is undertaking a review of the coastal zone assure protection of the natural biologicaL and physical ce- management programs developed by states pursuant to the Federal sources of the coastal zone, if it does not eliminate the threat Coastal Zone Management Act ("CZMA"), the key national legis- of destruction from unwise and unplanned development, thei that lation for protection of coastal areas. Our goal is to assure program may not receive federal approval anrid funding. that these state programs protect the coastal zone in the way NRDC believes that the MassachusettE program as proposed envisioned by Congress. is unacceptable because of its failure to fleet a number o!' sig- NRDC has reviewed the Massachusetts Coastal zone Manage- nificant requirements of the CZMA and because of its consequent ment Program ("CZMP") and presented its views a number of times failure to assure effective coastal resource protection. both in writing and at public meetings. On November 22, 1977 NRDC's representative in Massachusetts, Gregor I. McGregor, made a statement at the joint federal-state hearings which were held on the Massachusetts CZMP and the Draft Environmental Impact Statement ("DEIS") prepared on the program. These comments supple- ment NRDC's written statement submitted at the November 22 hear- ing. In these comments, NRDC addresses the question of whether -3- -4-- I program is that it effects very few changes in existing state SUMMARY OF CONCERNS and local programs. Yet the CZMA specifically found that: In light of competing demands and the urgent need In order to satisfy the requirements of the CZMA, state to protect and to give high priority to natural systems in the coastal zone, present state and lo- programs must first and foremost protect and give high priority cal institutional arrangements for planning and regulating land and water uses in such areas are to natural systems in the coastal zone. To this end, state inadequate. Section 302(g) programs are required to establish comprehensive controls over Despite this fact, the Massachusetts program proposes to rely land and water uses in the coastal zone, and to adopt specific on existing institutions to implement existing state programs and enforceable policies to govern the exercise of these controls. pursuant to policies which for the most part are neither new Measured against these requirements, the Massachusetts nor ambitious. The state even says that there will be no reduc- program is not approvable at this time. Over half of the policies, tion in the rate of development in the coastal zone as a result which constitute the heart of the program, are not enforceable. of program implementation.!/ In view of these facts, the state Uses such as power plants and oil refineries, which will have is under a particularly heavy burden to establish that its pro- major impacts on coastal resources, are not subject to enforce- gram will further the goals of the federal act. able coastal policies. Many of the policies are weak with res- NRDC believes that the following actions must be taken pect to environmental protection and fail to satisfy the basic by Massachusetts before its program may he found to comply with conservation thrust of the CZMA. There is serious question as the CZMA: to the legal basis and enforceability of the Chapter 21A regu- 1. The policies must place greater emphasis on lations and the Memoranda of Understanding--the mechanisms the environmental protection and there must be more program relies on at present to translate the coastal policies policies of an enforceable nature to assure a suffi- into action. Finally, the very guts of the program--the regu- ciently comprehensive program; lations to be adopted by EOEA agencies and the Energy Facility 2. Land and water uses in the coastal zone which Siting Council--have not even been drafted, let alone adopted. are of more than local concern (e.g., power Yet without these regulations, there is no mechanism.in place to assure that the coastal policies will in fact be implemented. V/EOEA Response to the Utility Company/Home Builders/Boston Cham- ber Legal Memorandum Concerning Coastal Zone Management, p. 4 (October 25, 1977). One of the most disturbing facts about the Massachusetts 'a." plants, oil refineries, transportation systems) II must be subject to enforceable coastal policies; GENERAL REQUIREM4ENTS 3. An opinion must be obtained from the Attorney The State of Massachusetts Coastal Management Draft General of the State of Massachusetts upholding Environmental Impact Statement ("DEIS") correctly states that the effectiveness and enforceability of the Chapter the management program must meet the following general require- 21A regulations; ments (in addition to the specific requirements related to individual elements of a state's program): 4. Substantive regulations must be adopted by EOEA (1) That the management program is comprehensive. agencies and other state agencies (e.g., EFSC) It must address and provide for the management of those significant resources, uses and areas for program implementation. that the State has determined, through its development process and in consultation with all relevant interests as required by the Act and these regulations, make its coastal zone a unique, vulnerable and/or valuable area requiring various forms of management; (2) That the policies, standards, objectives and criteria upon which decisions pursuant to the program will be based are articulated clearly and are sufficiently specific to provide (i) a clear understanding of the content of the program, especially in identifying who will be affected by the program and how, and (ii) a clear sense of direction and predictability for decision makers who must take actions pur- suant to or consistent with the management program; and (3) That there are sufficient policies of an enforce- able nature to insure the implementation of and adherence to the management program. DEIS at l-3*/; In addition, the program developed by the state must be adequate to carry out the purposes of the Act, and be consistent with the policy declared in Section 303. Subsection 306(c) (1). !/These general requirements appear in NOAA's Proposed Revised Coastal Zone Management Program Approval Regulation, 42 Fed. Rea. 43552-43583, 4359R (Auquqt 29, 1977). Thege regulat-~ns have not yet been finally adopted. -7- -8- The Massachusetts program fails to meet these general A management program, at a minimum, must be comprehensive requirements; the management program is not sufficiently com- enough to control uses which may have a direct and significant prehensive; there are insufficient policies of an enforceable impact on coastal waters (Section 305(b) (2) and (4)). The Massa- nature; the policies fall short of the purposes and policy of chusetts program's inability to control energy facilities in the the CZMA. coastal zone consistent with coastal policies represents a fatal flaw in the program. A. Comprehensiveness The program is not comprehensive enough for another reason. The program dramatically fails to assure that major de- The state has not delivered a meaningful transportation policy in cisions concerning the siting of energy facilities (such as electric the coastal zone. The addendum to the program (issued at the power plants, oil tank farms, oil refineries and gas plants) in same time as the DEIS) provides that major transportation projects, the coastal zone will be in keeping with the intent of the CZMA not covered by the program, may not proceed without an amendment to preserve natural biological values and control adverse impacts to the program. However, this provision is not contained in an on the coastal zone. enforceable policy. Since it is only policies, not the entire The Energy Facilities Siting Council ("EFSC"), which has program, which are to be incorporated into the Chapter 21A regu- ultimate authority over the siting of energy facilities, is not lations, this provision of the program appears not to be legally legally bound to adhere to any of the policies, including the binding or enforceable. Except for MEPA review and federal con- energy policies, of the coastal program.-/ The Council may sistency review, road construction in the coastal zone seems be- override an EOEA agency's denial of a permit even where issuance yond the purview of the CZM program. of the permit would violate coastal policies. The EFSC may even Other elements of infrastructure are beyond the meaningful go so far as to locate an energy facility in an area designated reach of the program. The Department of Community Affairs is under the coastal program as an Area for Protection and Preser- responsible for housing investments on behalf of the state, and vation ("APR") - indirect housing assistance, and.yet it is apparent that CZM will -/See DEIS at 11-21 et seq. act only as an advocate in such important decisionmaking as **/EOEA Response to the Utility Company/Home Builders/Boston involves housing in the coastal zone. Chamber Legal Memorandum Concerning Coastal gone Management, pp. 2-3 (October 25, 1977). As for sewers, there is controlover sewerage treatment "'43 plant investments by an agency of EOEA, plus federal consistency, zone and acknowledged pressures for many pes of development but controls over strictly local decisions to fund sewer exten- which local government has evidence no trated ability sions or local Board of Health decisions to allow sewer tie-ins, to control, the Massachusetts program mus be more comprehensive which have significant grbwth implications, are minimal. There is great pressure on fragile and nonrenewable re- sources, creating use conflicts that did rot exist in the past. The program also leaves out controls on cumulative impacts of piecemeal permit decisions. With a program relying so heavily Wetlands are pressured by housing, parking lots, and marinas. on coordinating a multitude of permit and license decisions Development of Georges Bank "will pose serious future conflicts" with demands for harbor space, impacts of oil spills, and damage throughout the state, control of cumulative impacts is a necessary to fishing grounds and vessels. Growth has been largely un- component. controlled. Indeed, as the program acknowledges at page 6, All this IS deeply disturbing in view of the fact that lmuch of the growth and development in the Commonwealth since 21% of the coastal tone is developable. The program acknowledges World War 11 has been unplanned and uncoord]inated." that the pattern and rate of development in this area will be To be comprehensive enough for federal approval, the determined largely by local zoning, local open space plans, and Section 208 community response. The CZMP, as proposed, will not Massachusetts CZM program must offer more to control significant direct growth, prohibit development (outside restricted wetlands) uses of the coastal zone, the impacts of which the program itself or resolve conflicts between competing uses. This is true not describes so well. only for developable areas, but the entire coastal zone. (DRIS B. Enforceability of Policies at 11-12). Fundamentally, the state is offering coordinated operation of sanitary regulations, the Wetlands Protection Act, As the DEIS points out ly 17 of the 38 coastal policies are enforceable. Tbis mea!ns that 21 of the the Wetlands Restriction Program, MEPA review of impacts in his- toric sites and critical areas, control of point sources of air coastal policies are advisory only and nee not be followed by and water pollution, and general incentives and disincentives state agencies in reaching decisions affec ing the coastal zone. through public investment to accomplish what those same controls Among the policies which are not enforceab are: have failed to accomplish in the many years they have been in (1) Almost all the policies relatin to recreation, in- place. In the face of heavy density in the Massachusetts coastal eluding those designed to impro public access ~~~~~-Al~~~~~~~~~~~~~~- ~-12- (Policy 21), increase capacity of existing re- f. Accomodation of exploration, development creation areas (Policy 23), and expand existing and production of oil and gas resources while facilities in regions with high need (Policy 25); minimizing impacts on the marine environment and conflicts with other maritime-dependent (2) All the energy policies, including those calling for:t uses. Pg&Duraging maritime-dependent facil- a. Maximization of the use of existing ities to locate in existing developed parts; oil terminals; ensuring that environ- encouraging development of alternative mental impacts and effects on port energy sources; evaluation of indigenous or operations of new terminals are ap- alternative sources of energy and offshore propriately considered (Policy 28); mining to minimize adverse impacts c the marine b. Consideration of the siting of oil tank environment and on recreational values of the farms in areas outside the coastal zone coast. (Policy 29); (3) The transportation policy. c. Weighing of the environmental and safety The fact that there are so many policies which are not impacts of locating proposed coastal gas legally binding and enforceable is devastating to the program. facilities at alternative sites (Policy 30); For example, there is no way to ensure that areas of the coast d. Consideration of alternative sites, including designated as geographic areas of particular concern (e.g., inland location, prior to siting electric wetlands, salt marshes, barrier beaches, dunes, estuaries) or generating facilities in the coastal zone areas designated for protection and restoration will in fact be (Policy 31); adequately protected, as the CZMA requires. Energy development may occur without regard to such designations. e. Consideration of alternative sites, in- cluding inland locations, for refineries. Furthermore, recreational use of the coast, which is under For deepwater ports, consideration of increasing pressure from competing uses, is not adequately pro- alternative coastal sites to assure that tected or promoted under the program. harm to the marine environment is minimized (Policy 32); -13- i -14- -14- Even some of the policies which the DEIS characterizes 4. 'Review" of development proposed near existing as "enforceable" are not hard policies. They merely "encourage" public recreation sites in order to minimize their or "discourage" certain activities, or require "review" or potential adverse impacts. (Policy 27). (Again, "consideration" of certain factors. For example, they call for: authority to act once review is completed is limited.) 1. "Review" of development proposed near designated or registered historic districts or sites to 5. Upgrading public infrastructure in existing de- ensure that federal and state actions and private veloped areas and assigning highest priority to actions requiring a state permit respect their infrastructure which meets the needs of urban and preservation intent and minimize adverse impacts. community development centers. (Policy 35). (Policy 14). (Yet the state has no legal authority, Such policies are inadequate. They leave too much dis retion once having reviewed a development, to ensure that in the hands of the agency enforcing them. They are n t state or private action does respect the preserva- tion intent and minimizes adverse impacts). sufficiently specific nor is the manner of their application tion intent and minimizes adverse impacts). sufficiently predictable. 2. "Support" for designation of scenic rivers in the C. Policy and Purpose of the CZMA coastal zone; "support" for the designation of C. Policy and Purpose of the CZMA Areas for Protection and Restoration as "Sign Free NRDC supports wholeheartedly the marine environment, Areas;" "encouragement" of scenic highways and coastal hazard and visual policies of the program. (We do ad- scenic road designation (Policy 16). (The state vocate a "hardening" of some of these policies, e.g., policy has the authority to designate, not just support 16). However, in other areas, the state, even though it has the designation. This policy should require the thedesiciso This pyhoudreuiretye the authority, refuses to exercise it fully for the exercise of that authority.) enhancement of coastal resource protection. For eample, 3. Promotion of the widest possible public benefit Policy (35) calls for the upgrading of public infrastrcture from port and channel dredging and ensuring such in existing developed areas, assigning highest priority to proposals are consistent with marine environment infrastructure which meets the needs of urban and commnity policies. (Policy 18). development centers. However, there is no policy stating that erosion." �302 (c) and (e). See also S303 (a) and (b). lowest priority will be given to public infrastructure in un- developed areas, or that there will be no new public infra- This basic conservation purpose is further reinforced by structure in areas where development would be inconsistent with the legislative history of the Act. The Senate Report (S. 92- marine environment, coastal hazard or visual policies. The 753) emphasizes that the Act was based on the following findings: state clearly has the authority to make such a commitment, yet that by 1964 one-quarter of the nation's salt marshes had been it has not done sa. destroyed; that the commercial fishery of the United States ~epends on coastal and estuary waters and marshlands as fish Most of the energy. policies, even if they were enforceable, nursery areas and spawning grounds; that increased commercial are extremely weak in terms of furthering environmental protec- and recreational demand in the coastal zone endanger biologic tion. With one exception, all they do is call for a "weighing" organisms; and that the fragmentation of state and local govern- or "consideration" or "encouragement." Even assuming the ment authority in the coastal zone has exacerbated pressure for policies were enforceable, nothing in the policies restricts economic development. (Report, p. 5) in any way the location of energy facilities in geographical areas of particular concern or APRs. The House Report (H.R. 92-1049) notes the "[ljarge -Iha prograi umus` be strengthened in these areas to comply metropolitan areas with their suburban sprawls... [hjeavy develop- ments.. .and massive landfill operations" and concludes that with the policies and purpose of the CZMA. "[ejach of these activities has contributed to the pollution and The Coastal Zone Management Act is not a value-free use attendant deterioration of the coastal waters" (Report, p. 11). allocation or development act, Rather, it emphasizes planning The House Report summarized the legislative need in this and sound decisionmaking as a mechanism to protect the natural biological and physical resources of the coastal zone. The Act manner (p. 10): "The information developed during the course of repeatedly emphasizes the "important ecological, cultural, his- the infonmtis levelon wae remof the hearings on this legislation was remarkably torical and aesthetic values in the coastal zone" (Section 302(e)) consistent with the findings of all the prede- cessor groups that have considered the problem. and that population growth and economic development "have re- Witnesses representing the National.Governors' Conference, the National Legislative Conference, *ulted in the loss of living marine resources, wildlife, the Coastal States' organization, individual state governments, and various conservation and nutrient-rich areas, permanent and adverse changes to ecological public interest groups were uniformly concerned for the deteriorating condition of the coastal systems, decreasing open space for public use, and shoreline zone and were united in their support for early 17 -18- legislative action. Similar support was indi- cated in letters from various states and public The final twist in the management pr grl which threatens organizations which were unable to furnish witnesses during the hearings." attainment of environmental goals is the pr vi ion in the pro- The Congressional debate on the bill (Congressional gram and in the draft _1A regulations which pe its the Secretary The Congressional debate on the bill (Congressional Record--April 25, 1972) is further evidence that environmental of EOEA to disregard coastal policies when uc policies conflict Record--April 25, 1972) is further evidence that environmental with the "compelling public interest." (Pr gr at 88, 318). concern was the bill's keynote. Senator Hollings, a major Nowhere is this "compelling public interest dined. The sponsor of the bill, put it this simply: policies themselves are already too weak in tern s of ensuring "The bill I propose today is aimed at saving the waters of our coasts and the land whose coastal resource protection. This provisio i the program.which use has a direct, significant, and adverse impact upon that water." (S. 6655) permits complete disregard of even these po ici s, at the Sec- retary's discretion, is totally unacceptabe. Throughout the debate, the Senators who spoke expressed their understanding that the purpose of the bill was protection of the coastal environment. "Mr. Spong: IT]he objective of the proposed National Coastal Zone Management Act is to achieve a partnership between man and nature in which man's varied needs are in harmony with nature's processes, and resources...its enact- ment would serve to protect the vast resources of the coastal zone, an objective that is deserving of the highest national priority. (S 6657) Mr. Tunney: This bill is an attempt by the Government to assist the States in correcting pollution and planning for the best use of limited land and water resources. (S 6672) Mr. Boggs: As stated in S. 3507 the purpose of the coastal zone management plan is primarily to regulate land and water uses in the interests of environmental quality." (S 6667) In short, there was clear legislative intent that the CZMA was to be first and foremost a conservation act. 'LI 8 -19- -20- III General Laws Chapter 21A. The program is built upon the authority SPECIFIC REQUIREMENTS of the Secretary to coordinate and evaluate programs of her agencies, resolve administrative and jurisdictional conflicts We turn now to a discussion of the specific elements which between them, and implement programs jointly agreed to with them. the program must contain to satisfy the CZMA. Because NRDC's greatest concerns in this regard relate to the inadequacies of There must be an adequate demonstration that this basis is the authorities the Commonwealth presently proposes relying on, legally adequate. The Rice Report (Appendix E of the program), the comments address this requirement first. while containing details on specific statutes relied upon for supplying authority, is not a definitive demonstration that the A. Authorities authority is there. What is needed is a statute-by-statute Subsections 305(b)(4) and 306(c)(7) of the CZMA require analysis of the ultimate reach of agency authority under existing that the program identify means of control over permissible land programs. Massachusetts offers policies which it guarantees will and water uses in the coastal zone and that the state have author- be implemented up to but not beyond the existing scope of author- ity to implement the program. CZMA 5306(d)(1) requires that the ity conferred on EOEA constituent agencies. Listing these state have the power "to administer land and water use regulations, separate programs, or even describing them in general terms in control development in order to ensure compliance with the the program and the Draft EIS is not the same as identifying management program and to resolve conflicts along competing uses." the ultimate reach of program authority. NOAA Reg. 923.21 requires that the means for control must The same could be accomplished by promulgation of the be "established and in place.." The means must be capable of agency regulations, and amendments to existing regulations, which actually implementing program objectives, policies and individual are necessary to put the management program in plate. The components. adoption process, including circulation of drafts, reactions from networked agencies, and comments at public hearings would do much 1. Authority of EOEA Agencies and the EFSC to Administer Land and Water Use Regulations and Control Development to demonstrate that the legal authority is there. - to Ensure Compliance with the Program The state must secure the formal Opinion of the Attorney a. Chapter 21A General recommended earlier by NRDC. Essentially, the question The Massachusetts CZM program makes a strained, but is whether Chapter 21A supports the program as proposed. In .perhaps correct, interpretation of the EOEA enabling statute, Jill -21- -22- addition, the Attorney General should be asked to conduct the Even if they were enforceable, these 4OU's (Appendix A statute-by-statute analysis that will disclose just how much the of the plan) are inadequate. By their language they support the CZM policies will be implemented through networked programs. CZM program only inasmuch as "coordination" ith other EOEA agencies and the Office of the Secretary is equired. This con- Besides this statutory analysis, the question for the stitutes only a limited acquiescenceto the ZM program. The Attorney General regarding Chapter 21A is whether a kind of MOU's promise the adoption and incorporation of regulations of continuing request for joint implementation, adoption of state the Secretary "to the extent permissible by law." This does environmental policy and request for conflict resolution not represent a judgment that the legal authp)rity of any par- can serve as the basis for the CZM program. Massachusetts needs ticular agency is now adequate to implement he CZM program. an unqualified Opinion of the Attorney General in this regard. This promise is also neither legally binding nor enforceable. We understand that an Attorney General's Opinion has been The MOU's also state that each commissioner will adopt "within requested on a number of these points (See attached letter). my agencies" certain regulations. It is not stated how some Until these questions are answered favorably, the present en- commissioners, such as the Commissioner of tie Department of forceability of the program remains in serious question and the Environmental Quality Engineering (DEQE) leg lly can bind in- program may not be approved. dependent agencies within his department, su h as the Division of Water Pollution Control (DWPC) upon which the water pollution b. Memoranda of Understanding ~~~~b. Memoranda of Under~standing atute confers independent authority. The Massachusetts CZM plan now acknowledges that the C. Need for Adoption of Substantive Regulations Memoranda of Understanding (MOU) are unenforceable, that they by EOEA Agencies and the EFSC embody just the "spirit of cooperation" (Program, page 319). NOAA Reg. 921.21(b) requires that the means for controlling They serve principally as requests to jointly implement the land and water uses must be "established and in place." In coastal program and requests to the Secretary that she invoke several places the Massachusetts plan acknowledges that regulatio the conflictresolution process where conflicts arise between the changes will be made to accomplish the policies of the program, EOEA agencies as to the consistency of agency action with the but they will not be adopted prior to federaL program approval. coastal zone management plan. Until they are adopted, however, CZMA 5305(b (4), S306(c)(7) and 5306(d)(1) cannot be met. -23- -24- For most of the key regulations the Draft EIS acknowledges "[Tjhe program shall principally be relied upon to condition con- struction on waterbodies so as to minimize interference with water that only a four-month wait would be involved, because regulations circulation and sedinent transport and to preserve water quality anid marine productivity (Policy 4); to minimize significant adverse for the Wetlands Protection Act will be amended by then, and for effects from public and private flood or erosion control projects on adjaceut properti.es or downecoa;t arens (Policy 12); ensure that the Waterways Program (Draft EIS, pages 11-36 et seq.), and dredging and disposal. of dredged material minimizes adverse effects - on marine productivity (Policy 5); to protect salt marshes, dunes, Ocean Sanctuaries legislation will be acted upon (page 11-39). shellfish flats, anadromous fish runs, sandy beaches, salt ponds, barrier beaches, and Areas for Preservation or Restoration (Policies I and 2); to ensure offshore sand and gravel mining does not adversely A look at what the program promises will illustrate the affect marine resources and navigation (Policy 6); and to minimize ad- verse effects of offshore energy exploitation on fisheries, water extensive amendment necessary to key program regulations, or quality, wildlife, and recreational values (Policy 33)." creation of new regulations where there are none now. If 'the Massachusetts policies set forth what is necessary to accomplish Especially for t~he Waterways Program, this is el::ljitious in view of in the coastal zone for an approvable program, then the operative e lack of reglatios. Te progra es linse for work in tide- the lack of regulatious. Tile program issues licenses for work in tide- regulations to carry out those policies are necessary if the state - .. lands, harbors, and certain rivers below the high water mark, The agency is to certify to the federal government, before approval, that it is concerned, as described on page 85 of the Plan, mainly with physical has the legal authority in place to manage the coastal zone. alteration and obstructions to navigation. Regulations will be necessary 'The guts of the ClZM Program will be supplied by the Wetlands Protection to impose the detailed dredring limits such as no dredging between April are Act and the Waterways Program under Chapter 91. Ulse of these programs is very 15 and June 1 where there /herring runs if it would cause high turbidity, extensive. It is worthwhile quoting the Plan, page 332: Regulations must embody the preference for hydraulic dredging; required "In conjunction witll, the Waterways Program (see below), through sediment analyses; the preference for onland disposal; mandated use of revised rules and regulations, the Wetlands Program shall be relied Upon to condirtion construction on waterbodies so as to clean dredged material for beach nourishmnent; the favoring of in-harbor minimize interference with water circulation and sediment trans- port and to preserve water quality and maintain productivity dredging sites; the restrictions on the type of transport vessels .r barges; (Policy 4); minimize significant adverse effects from public or private flood or erosion control projects on adjacent properties operational limitations such as requirements that the barges be dead in the in downcoast areas (Policy 12); ensure that dredging and dumping I, , of dredged material minimize adverse effects on marine productivity water when discharging; requisite notices to fisherman; and the limits.gr (Policy 5); and to encourage maritime dependent iednnustrial develop- ment in port areas (Policy 17); for works, projects, or activities the turbidity of the plume, all articulated on page 96.of the Plan,, Tibe-- other than those affected by Policies 4, 5, 12 or 17, or which occur a within tile 100 year flood plain but outside of the areas identified need for Chapter 91 regulations is acknowledged at page 98. Through this in Policies I and 2, conservat ion noprnissions and the Con-i.ssioner _ - of DEQE shall continue to protect, as before, tihe interests of the program sone of the only "hard" controls available in the CZM Progr;m will Wetlnnds Protection Act." be implemented. Tihat doubles the importance of having the regulations. Use of the Wlaterways Program is equally ambitions; IGY The program at page 95 acknwledges, likewise, that regulations axe Other substantive regulations are needed to accomplish program p licies. being developed 'so that Chapter 91 may set detailed requirements for the design Title 5 regulating septic systems will need a new section for critica areas and construction of solid fill piers, bulkheads or other permanent struc to incorporate research end standards as necessary for more sense areas, tures, case-by-case, These will. implement Policy 4, just as the detailed pinpointed at pages 92 and 93 of the Plan. dredging limitations discussed above will implement Policy 5, Regulations Policy 6 will require regulations for sand and gravel mining, re are acknowledged at page 27 of the Plan as necessary to implement Policy 12 there are no regulations now, in order to institute the guidelines u lined by requiring detailed demonstrations by applicants who propose privateno mining above the 80 foot contour nne at page 99 re arding location (no mining above ihe 80 foot contour, flood or erosion control projects, discussed at page 126, Under Policy 17 where there is contaminated material, none within certain distances r the Waterways Program permit or license authority for bulkheads, filling, cables and pipelines, and none in productive sport or commercial fis ies), dredging, bridges or piers in port areas will be esed to prohibit preemption The same is true of the detailed operational guidelines. The discus i n at of maritime dependent uses, and to permit non-maritime uses which are not page 100 makes clear that only the Division of Marine Resources offel the irreversible commitments of sites, discussed at page 176. Evidentially hard regulatory program needed to achieve these results, Yet that D v sion these requirements are not found in existing program regulations. has no regulations at present, Counterpart regulations will be necessary under the Wetlands Protection Policy 9 will see detailed limits on sewer funding within the 1 0 year Act program. They will be necessary to treat salt marshes, shellfish beds, coastal flood plain, as for instance permitting structural solutions i dunes, beaches, barrier beaches, and salt ponds as the most critical wetland high risk hazardous areas only if warranted by severe water pollutio types "meriting the highest degree of protection: (Plan, page 81), Regula- problems and if a non-structural solution is ineffective or cost proi itive, tions will be necessary if local conservation commissions are to impose special The Division of Water Pollution Control Funding regulations will need mend- conditions where landowners desire to establish common docking space, ment. Review processes and coordination with agencies, offered at pag 123 especially if (as described at page 85 of the Plan) these conditions will of the Plan, will not be enough to accomplish such a guaranteed result relate to the volume of dredging, to access, and to no additional construc- Management of Significant Resource Areas cannot be assured witho new tion in the future. Erosion control under Policy 12b will need both wet- regulations. Page ii of the Regional Chapter admits that not all SRA' are lands regulations and Chapter 91 regulations to make legally binding, as covered by present laws and programs, Others "will be managed" when enic offered at page 166, that CZM will permit structural solutions for erosion Rivers or Wetland Restriction Program elements are implemented, The ter control only where there will be no damage to adjacent property. New wet- pollution control funding regulations will need amendment if, as outled land regulations will be needed to prohibit the construction of solid fill at page 86, the Division of Water Pollution Control is not to issue p lits structures In any salt marsh, shellfish flat, barrier beach or- dune area, or certificates for activities prohibited in SRA's, -27- -28- Desired protections will not be afforded Areas for Preservation or to the Utility Company et al. Legal Memorandum (October Restoration without new regulations, The Secretary's regulations under 25, 1977). The Council is the sole mechanism for implementing Chapter 21A will be necessary to adopt the standards whereby APR's will be Policies 29-33. Under Policy 29, EFSC is to consider alter- selected, because they include several significant natural resources and natives for oil tank farms outside the coastal zone (page 261). must meet standards of public health, quality, productivity, uniqueness, Under Policy 30 it is to weigh the impacts of gas facilities at irreversibility of impact, threat and economic factors, Likewise, regula- alternative sites (page 262) and under Policy 31 it will consider tions will be needed to specify how agencies will conduct activities in alternative sites, including inland locations, prior to siting APR's (page 319). According to page 88, upland areas contiguous to APR's power plants in the coastal zone (page 263). Under Policy 32 will be protected, with the need to demonstrate that activities thereon (page 264) evaluation of all sites for refineries and deepwater will have no adverse effect upon APR characteristics. Categorical exemp- ports will involve a detailed assessment of need, costs, harbor tions will be removed from MEPA regulations for work in APR's. as suggested congestion, infrastructure, impact on port operations, and other at page 88. There will be certain categorical prohibitions of activities social, economic and environmental impacts. Regulations are within APR's, such as energy facilities, new industrial discharges (includ- acknowledged as needed for all these (page 340) and the Memorandum ing thermal) and discharges of hazardous substances, most new dredging, of Understanding with the Siting Council calls for them (page most spoil disposal and new sewage treatment facilities (page 88). Sign a-19 of Appendix A). Additional guidelines are called for in free districts will be designated for APR's (page 33). Sewering an APR the MOU (page a-20) to ensure that applicants supply information will be discouraged except where it can be demonstrated that "no'previously on two alternative sites, one inland. undevelopable land will be made developable" (page 34), All these things Also on the subject of energy, Policy 33 will affect off- will require amendment to Outdoor Advertising Board Regulations, Division shore energy development. The Division of Marine Resources will of Water Pollut4ng Control Regulations and regulations of the Energy be relied upon for lease controls in mineral resource extraction. Facilities Siting Council. It is acknowledged on page 268 of the plan that there will be Amendment of the Energy Facility Siting Council regulations new regulations. is critical. Until such regulations implementing the coastal It is absolutely essential that these regulations be adopted program are aldopted, the EFSC is not legally bound to control prior to federal program approval. Otherwise, there is absolutely energy development consistent with the coastal zone management no assurance that development will be controlled so as to conform program. The DEIS makes this very clear, as does the EOEA response to the CZMP. The regulations are the action-forcing part of the to the CZMP. The regulations are the action-forcing part of the -29- -30- Massachusetts effort. Without them there is no assurance of flood elevation or 100 feet beyond the protectablEl resource it- program implementation. self, whichever is greater. Essentially, the ComnliEsioner takes the position that the construction activity must cccur within d. Extent of Authorities of Constitutent EOEA Agencies this border to be regulatable. A more aggressive interpretation of the statute and regulations would be activities cutside that Because the Massachusetts program rests upon the exist- area are regulatable if they cause alteration of resources within ing regulatory programs administered by EOEA agencies, the scope tbe area. Thus, upland shopping centers causing changes in sur- of legal authority of these programs must be closely analyzed face water flowage into wetlands, or construction projects result- and assessed. ing in siltation, would not escape operation of the program as (1) Wetlands Protection Act they do now. -The review authority of DEQE under the Wetlands Protection The Commissioner and his staff in the Division of Land and Act will be an important vehicle for imparting CZM policies to land use decision malking. Unfortunately, the Conmmissioner of Water Use do an admirable job with the resources they have. Never- DEQE, and the Rice Report at pages 159 and 162, take a narrow theless, they do come under challenge from some Conse:rvation Com- interpretation of a critical word in the statute. The applicable missions for not being aggressive enough. In partiacu.Lar, the per- interpretation of a critical word in the statute. The applicable agency regulations, originally promulgated by the Department of ception of some Commissions is that the DQE basicaL is unuilling to prohibit activity or, more important at times, t.k~ a strong Natural- Resources, give the'statute a broad scope by defining a stand in reviewing work already done in violation of he statute. large class of protectable resources and a large set of activities regulatable with respect to these resources. Essentially lands -,The DEQE is in a difficult position, having to admiri ter this con- subject to flooding, lands under water and certain listed resources troversial program of authorization for work affectinwetlands, ..... '~.....'' ; ......-'" �ii,, and it might be advisable to take a good, hard.alook at the realities (banks, beaches, dunes, flats, marshes, meadows, swamps, fresh water of what can be accomplished with the program over thelong range. wetlands and coastal wetlands) bordering bodies of water are protected. Dredging, filling, removing and altering are regulatable. The Commissioner interprets Since an important trigger for CZi policies wi be DEQE "alter" to re4uire that the activity resulting in the alteration be within routine review of local Conservation Coisision rdr another routine review of local Conservation Commisislon order, another the bordering area. The key term "bordering" is defined in the element of tile program deserving scrutiny is how r feet beyond it ill regulations as reaching out as far as 100 feet beyond the 100 year -31- -32- be to expect qualified staff to actually review all Commission accomplish over the near future. Orders which are issued, as opposed to simply responding to appeals to such Orders that are lodged with DEQE. Left out of earlier coastal restrictions were dunes and barrier beaches. These will be added to restrictions issued here- T he CZM program acknowledges that there are "categorical after but, as to restrictions already recorded, dunes and barrier exemptions" from environmental review processes under the Massa- beaches will be added only when the Inland Wetlands Restriction chusetts Environmental Policy Act. Matters under the Wetlands Act is implemented with respect to coastal communities. That may Protection Act are exempt for wetlands less than one acre in size. be years away. Since the CZM program proposes to establish an override of this (3) Subsurface Sewage Disposal exemption when CZM matters are involved, it will be doubly impor- tant to ascertain that routine DEQE review of Conservation Commission A comprehensive review of Title 5 of the Environmental Code, Orders is actually carried out. regulating disposal of sewage in unsewered areas, recently has been completed. The DEQE has proposed amendments to the applicable (2) Wetlands Restriction Act regulations. They would set important distances for disposal areas An important component of the CZM program will be the power from wetlands, refine controls in the hands of local Boards of of the state to restrict, by orders recorded in the registries of Health, and incorporate modern engineering standards. According Deeds, the use of coastal wetlands. Massachusetts has an Inland to the Commissioner of DEQE, however, these amendments will not be Wetlands Restriction Act and a Coastal Wetlands Restriction Act. made final in view of their political vulnerabilityto challenge It is widely reported under the latter that a very high percentage from homebuilder and other construction interests. of coastal wetlands have been restricted.. As of January 1, 1977, These amendments are excellent in most respects and it will the figure is given as 32,000 acres. That figure may be inflated be important to ascertain how soon they can be implementod. In by including large areas of tidal flats. A more accurate figure one respect, though, they are disturbing; Rather than state review might be 25,000 acres of critical wetlands restricted. According of septic systems commencing at 2,00 gallons per day of discharge, to the DEQE staff responsible for the program, that would be approx- the amendments would limit state jurisdiction to systems larger imately 50% of the total critical wetlands which must be rsstricted. than 15,000 gallons per day. That runs counter to the assumptions In view of the length of time necessary to achieve even this level, stated in the Preview as to the extent of the DEQE Review of disposal it is important to' scrutinize realistically what the program can -33- .34- systems so important to residential and commercial development. is a definitional problem (Rice Report, footnote 270} but that The controls on the disposal of septage (the contents of problem should be surmountable. It should be possible to use-the pumped septic tanks), discussed in the Rice Report at page 177, definition of "bank" from the Wetlands Protection Act regulations, in fact are only guidelines and do not carry regulatory impact. and to issue regulationsif necessary, to implement the Scenic and Recreational Rivers program. (4) Ocean Sanctuaries (7) Scanic Roads "Care and control" of ocean sanctuaries by the Department of Environmental Management, identified in the Rice Report, page At some time in the past the option of municipalities to designate as 'scenic' certain of their roads was frustrated by policy 128, is as yet unimplemented by any regulations setting up any of the state Department of Public Works against funding some or all license or permit system. As the Rice Report acknowledges, at- ding some or all of construction and maintenance. That oppositionby the DPW to pages 129, 130, there is a question as to whether where is any authority for regulations, even those that exist. local designation of Scenic Roads may have been only rumor, and may have been cured, but that should be determined before the CZot (5) Billboards (5) Billboards program places reliance upon these protective measures. The Outdoor Advertising Board (now the Outdoor Advertising (8) Water Pollution Control Division) of DrQE, does a good job at regulating billboards, especially those that are contrary to local bylaws, but it may not To date there has been no practical resolution of overlapping be the broadbased management program necessary to restore cultural authority of the Division of Water Pollution Control and the DEQE and aesthetic values, and economic values, as discussed in the Rice Division of Land and Water Use regarding regulation of subsurface Report atpage 168. Nor is the "aesthetic zoning" authority, es- sewage discharges. Apparently permits are necessary under both the sanitary regulations and the water pollution control statute. tablished by the case of Outdoor Advertising Board v. Donnelly, the sanitary regulations and the utin control statute. The relationship between the agencies should be clarified and a regarded as a broad new power reaching beyond billboard cases. method of dealing with the overlap developed. (6) Scenic and Recreationai Rivers The important program discussed in the Rice Report, page 200, The water pollution control program is weak on protecting has never been implemented. There are no scenic or recreational gtoundruaters, although such authority explicitly exists in the rivers identified and restricted in Massachusetts.. Apparently there -36- Unfortunately, the Division of Mineral Resources, which statute. In view of the importance of groundwsater on Cape Cod andately, the Diision of , in other areas of the coastal zone, this should be clarified, formerly was in the Department of Natural Resources, has been dis- in other areas of the coastal zone, this should be clarified. mantled with the reorganization of that agency. It should be The authority of the Division of Water Pollution Control determined whether regulatory authority still exists and, if sb, to review and approve tie-ins to municipal sewerage systems appar- by whom it can be exercised. ently conflicts directly with the statutory right of a landowner (10) Chapter 91 Program to tie-in upon tendering the appropriate fee, a principle long established in municipal law. Work in navigable water is the subject of a regulatory program administered by DEQE. Basically the program is limited to In view of the jurisdiction of the Division to regulate the impacts of land development, rather than control the patrtens of licensing work in the management of public resources rather than Impacts of land development, rather than control the patterns of regulating private land use through permit conditions for development,, observations in the Rice Report at page 178 are over- purposes of protecting the public health, safety or welfare. Rice stated. The water pollution control program certainly does affact 'Report, page 76. Other authority is exercised over alteration of patterns of development; but does not control them. Division any beach, shore, bluff, headland, island or bar areas bordering representatives have stated that controlof growth is to be on tidewaters, limited to removal of natural materials or vegeta- accomplished through zoning, not through decision making with regard tion likely to be injurious to a harbor or to navigation. to sewers. (9) Division of Mineral Resources In view of the primarily navigational character of the pro- gram, the full authority of DEQE to set conditions on work should Heavy reliance in the CZM program is placed upon regulationn work be explored. The CZM program, in addition, proposes to exert of offshore resource extraction. Rice Report, page 61. A key control over such projects, when CZM policies are not adhered to, policy is control of dredging and disposal to minimize the effects by withholding support for legislation to make the licenses irre- on marine productivity and to accommodate offshore'sand and gravele irre ovcable. It is doubtful that this will work in practice. mining in ways not impairing marine resources or navigation. The Rice Report calls upon the Division of mineral Resources to assure Another point is that the staff of the DEQE Division of Land orderly extraction and exploration as part of a resource manage- and Water Use is, in part, derived from the DP;W former Division of ment policy. Rice Report, page 90. Waterways, which administered the Chapter 91 program. -The DEQE, /57 -37- -33- therefore, is called upon to perform construction programs regarding by a large number of persons. It is reported that they are inter- piers, waterfront, terminal facilities, "improvement" of tidal and preted to protect only water supplies designated and operated by nontidal rivers and streams, great ponds, harbors, tidewaters and public govenmental agencies. The Commonwealth acks a program foreshores as well as shores along public beaches. Rice Report, targeting protection of aquifers and other re:ources important page 81 The conflicting interests in both licensing and sponsoring to quantity and quality of subsurface drunking weter supplies, tide water projects is apparent. although potential drinking water supplies can bE protected under the Wetlands Protection Act. On a related point, it is not clear how this program spon- sorship role will be able to force local rezoning in conformity (12) Special Funds with CZM policies, objectives and guidelines, to encourage other According to the Rice Report, page o10, in portant use will compatible projects as pointed out in the Rice Report, page 83. be made of funds from license and permit fees which can be restricted With respect to licensing tidewater projects in the metro- to such things as developing, maintaining, managing, operating and politan Boston area, it should be observed that the Chapter 91 administering CZM-related programs, as fot instan e those adminis- authority ordinarily administered by DEQE is in a sense split off tered by the Division of Fish and Wildlife. Another example is to the Department of the Metropolitan District Commission. The the fund used for public recreation water access and trail facilities. MDC in reality is much more an independent body than a department Rice Report, page 113 (and other funds cited at page 116). within DEQE by virtue of reorganization. Actually, the MDC does In fact only the Inland Fisheries and 11ild ife Fund exists not exercise Chapter 91 authority, but rather its own authority now. Through the efforts of the Governor and his Secretary of under MDC statutes. Administration and Finance, "dedicated funds" as they are known have (11) Division of Water Supply almost all been eliminated. The fund just identi ied will be elimi- nated by the Legislature's Ways and Means Committ e when the budget The drinking water quality regulations of Massachusetts date is reported to the floor this year, although fish and game interests from earlier decades. While they are fairly effective, they do are resolutely trying to restore it and the other funds that were not reflect the sophisticated approaches of air pollution and water eliminated last year. The prognosis is not good -or dedicated funds. pollution programs that are more recent. The regulations are not entirely clear on to what extent they protect private supplies used -4-. e. MEPA v. Massachusetts Port Authority and 'Executive Office of Environ- The program and the Rice Report, page 268, identify mental Affairs v. Massachusetts Port Authority. legal authority other than the EOEA enabling statute and the Section 26 requires the Secretaries of the Executive Offices, constituent EOEA authorizing statutes as providing a basis for 'which constitute the cabinet of the Governor, each to promulgate the CZM program. A few observations are in order. rules and regulations to implement Section 62 environmental impact The most important such authority is that found in the report requirements. MEPA regulations of EOEA in this respect Massachusetts Environmental Policy Act (MEPA). That statute man- govern only EOEA agencies. As to non-EOEa agencies they are dates an environmental impact report for any state work, project guidelines only. Non-EOEA regulations are submitted to EOEA for or activity which may cause significant damage to the environment. approval by the Secretary. Of course the EOeA guidelines are Section 61 of the statute contains important mandates, among them given great evidentiary weight, EOEA v. Massachusetts Port Auth- that: ority, and EOEA interpretations of its own and other agency MEPA "All agencies, departments boards, commissions and regulations may be regarded as authoritative by the courts. Once authorities of the Commonwealth shall review, evaluate, and determine the impact on the natural non-EOEA regulations are approved, however, their implementation environment of all works, projects or activities conducted by them and shall use all practicable is beyond the control of EOEA. For example, the regulations of means and measures to minimize damage to the environment...Any determination made by an agency the ExecutiVe Office of Transportation and Construction (EOTC} give of the Commonwealth shall include a finding des- T cribing the environmental impact, if any, of the agencies such as the DPW broad discretion in deciding whether to project and a finding that all feasible measures have been taken to avoid or inrimizs said impact." issue an environmental impact report. EOEA is left to correspond- These obligations look impressive and they look quite distinct from ing with the agency in question and pursuing the matter in court, the Section 62 obligations for agencies to publish environmental as was the situation with bassport. impact reports for specific projects. However, it is far from clear A further limitation on MEPA authority is that, by virtue that MEPA is an enabling act containing substantive obligations of a 1974 amendment, an environmental impact report for an agency and responsibilities. In this connection it is important to note permit, order or other action with respect to private development "shall be limited in scope to the subject matter jurisdiction" of apparently regarded Section 61 as implemented primarily through the agency by which the report is prepared. This apparently the environmental impact reports under Section 62. City of Boston means that, regardless of the broadly stated obligations in Section 61, regardless of the many aspects of a project which may cause in a "Negative Assessment" why one will not be preparer. Rdminis- environmental impact, and regardless of the CZM concerns raised tration of MEPA is characterized by a large number of rrojects exempt by a project, the environmental impact report nevertheless will by either method, despite the low threshhoid of what damage to the address only those impacts raised by the portion of the project environment is 'significant" enunciated by the Supreme Court in narrowly within the authority of the agency to approve or EOEA v. Massachusetts Port Authority. disapprove. Categorical Exemptions are widely invok;ed under MEP~, and When envirommental impact reports are prepared, the role of Categorical Exemptions are widely invoed under E the Secretary of EEA is limited to issuing Negative Assessments comprise the bulk of the paperwork generated the Secretary of EOEA is limited to issuing under the statute. Even though Categorical Exemptions are bypassed .a written statement indicating whether or not in his judgment said reports adequately and properly according to MEPA regulations if a project or activity is to comply with the provisions of this section." be conducted in an environmentally sensitive area, it is hard to see Such is the scope of review and the nature of the decision when a how agencies sponsoring projects, or preparing to permit a:: license how agencies sponsoring projects, or preparing to permit o:.t license state project is involved. By virtue of a 1974 amendment to MEPA, them, will know about the environmental sensitivity of the arel if howevert, environmental impact reports for state review of private they do not carry out an environmental analysis in the Eir:;t place. work, projects or activities are submitted to the Secretary only CZI maps disclosing critical areas may assist in this rnga'd. Row- "for comment." Section 62 now expressly provides that "the approval ever, placement of a project in such an area means only that the or disapproval of said Secretary of any such report shall not be Categorical Exemption will not apply. It will still be oper. to the required." Therefore, it is not accurate to characterize the role agency to file a Negative Assessment seeking to do away wfiith an of this Secretary as determining the "necessity" of an environmental environmental impact report. Again, EOBA will be left only with impact report in all respects satisfactory to the Secretary, as the authority to issue a decision as to the adequacy of the! Negative suggested at page 272 of the Rice Report. Assessment or, as to private projects under state permit or orders a "comment." Since EOEA authority does not include vetces over As a matter of practice under MEPA, "Categorical Exemptions" projects, the remedy is in court. and "Negative Assessments" are very important. MEPA regulations of all agencies create categories of projects which do not require On this subject of exemptions from MEPA, it shculd be noted full environmental reports. In addition, it is open to any agency that a wholesale exemption from MEPA is found in the Clean laters considering a project which could require such a report to explain Act, the basic water pollution control statute for Massachusetts IGe administered by the Division of Water Pollution Control. resolution is thus between agencies only, and there is no mech- 2. Authority Over Non-EOEA Agencies anism for resolving conflicts between competing uses for specific land and water areas. The program and DEIS f.reely permit thi:e. The authority possessed by non-EOEA agencies is basically (Program at 27, DEIS at 11-2). unaffected by the coastal zone management program. As the EOEA response of October 25, 1977 to the Utility Company/Home Builders/ The need for specific mechanisms is well demonstrated Boston Chamber Legal Memorandum Concerning Coastal Zone Manage- For example, in the field of recreation, the plan acknowledges ment makes clear, the Energy Facility Siting Council retains its (at page 201) that resolution of recreational conflicts is "oftern full authority to determine the location of future energy facili- possible only through prohibition of one or asore activities." ties, even if it means siting such facilities in areas of parti- The need to prohibit or condition recroationald uses will be 'more cular concern in the coastal zone. With respect to other state prevalent, the program observes, ..nd yet the ability to do j.st: agencies, the program relies on "[mjaintenance of working-level that does not exist in the Massachulsetts program. relationships, early consultation, membership on interagency Another example is found in Policy 27. Where private committees and program-specific agreements," mostly through MEPA devClopmcnt proposed no. r-near mn.i. ami.ng p.hldbic .'enati5zamh eib-. responsibilities. (p. 341). This is simply not enough. The will increase traffic congestion ,n access reatds, obstrui-t r- Executive Office of Transportation and Construction, the Executive limit public access, pollute t:ho :.atcr, chanoj, the site clhaiJt:er, Office of Communities and Development, and the Office of State cause air pollution, or cause nos'e, the CZM4 role is one to Planning are just too powerful and too greatly influence uses of "review" and "encourage" developel:rant to minjriize its impact, and the coastal zone. "consider" the purchase of easements, developmi:ent rights and 3. Authority to Resolve Conflicts Among Competing Uses land swaps. In the face of such demonstrable conflicts, the Massachusetts CZM program must ofLer more to be approved. The CZMA requires that the state possess the authority to resolve conflicts among competing uses. Section 306(d)(1). In contrast, the Massachusetts program offers only the program document itself as resolving conflicts between uses, adding a mechanism for resolution of conflicts between officials within the Executive Office of Environmental Affairs. Conflict Ut,, B. Coastal Boundaries (p. 26). It should be made clear that thisbou dary enco- passes all areas which lie inland 100' aro th 100-year The first requirement, under Section 305(b) (1) of flood plain or the landward edge of wet an ( s defined the CZMA, is that the program establish snecific boundaries under the Wetlands Protection Act). (S erog am at 81) for the coastal zone. The CZMA defines the coastal zone as "the coastal waters (including the land therein and An issue of concern is the state en th t anadromus thereunder) and the adjacent shorelands (including the waters fish runs (to the freshwater breeding a ea) wi1 he in- therein and thereunder), strongly influenced by each other eluded in the coastal zone, if such are is wi hin a and in proximity to the shorelines of the several coastal coastal town. (Program at 26). Anadrom us isf runs to states, and [it) includes islands, transitional and inter- the fresh water breeding area should be in ludd whereve tidal areas, salt marshes, wetlands, and beaches." Section they may occur and the limitation to coast l t wns should 304(a). On the seaward side the boundary is fixed at the be deleted. outer limit of the United States territorial sea. On the We also question the justificatiln mor xcluding inland side, the boundary extends "to the extent necessary coastal most of the inland portions of Cape Ann fr the coastal to control shorelands, the uses of which have a direct and zone. Adequate reasoning for this action us be providd. significant impact on coastal waters." C. Areas of Particular Concern; Areas for Pre ervation The Massachusetts program defines the state's coastal and Restoration; Priority of Uses zone to include lands and waters within the area defined by: instructe to Under Section 305(b)(3), the staes are instruct to The seaward limit of the state's territorial include "an inventory and designation or a eas of narticl lar sea (i.e., 3 miles), extending from the Massachusetts-New Hampshire border south concern within the coastal zone" in their ana ement pro to the Massachusetts-Rhode Island border, and landward to 100 feet inland of a major gram. A related provision, Section 306 c) 9) requires hat road, rail, or other visible riaht-of way. - the management program include a mechan sm for setting a ide The boundary also includes all islands in state juris- In specific areas for preservation or rest ra ion In orde2 diction (DEIS at 11-1). The Procram states that the road to fulfill the purposes of the Act, the st te ?ust not boundary chosen approximates the inland edge of valuable only designate apc's and apr's, but it us al o demonstrate natural coastal systems and includes land on which major that it possesses enforceable policies nautlorities wlich activities could potentially impact coastal resources. address the concerns and protect the reource alues whi h we e I 4iI the reasons for designation of such areas in the first place. The EOEA itself has stated: Under Massachusetts law (Chapter 164, Massachusetts has designated gapc's to include barrier Section 69), the rFSC is empowered to give initial approval for the location beach systems, dunes, beaches, salt marshes, shellfish beds, of a proposed energy facility based on the need for energy, the environmental salt ponds estuaries, coastal embayments , and anadromous fish impact of the facility, and the provision of energy at the lowest reasonable cost runs, erosion areas, flood plains, plus land 100 feet inland . . . If an agency lincluding an EOEA agency] denies or conditions a permit, of the 100 year floodplain which is subject to or serves to the EFSC, on appeal, is empowered to override the denial if it finds the buffer and dissipate the forces of flooding and/or erosion, and denial unreasonable. finally, port areas. (Program, 27-30; 35-37). The state has Although the CZM plan includes policy statements relating to energy facility also established a procedure for designation of apr's.(Program, siting, it cannot of course contradict present statutory provisions. The Plan 32-34). What is has not done is establish enforceable policies does, however, effect this process in four respects. and authorities to ensure that these designations will be mean- ingfully implemented. This is a major failure of the program 4) The EFSC agrees in its MOU to give which must be corrected. "prime consideration" to CZM policies when it weighs environmental impact against energy needs and cost considerations for facilities There are three basic problems with respect to gapc's and proposed to be located in an APR (a f ragile environmental area designated for specialI apr's: developments such as energy facilities may be sited in treatment after a lengthy formal hearinn . . . Once again, however, the EFSC retains final such areas in disregard of the designation; the Secretary retains authority to determine siting decisions. (emphasis supplied). the power to disregard the policies with respect to such areas EOEA Response to the where a conflict arises with "compelling public interest"; no Utility Compan y et al. Memorandum, pDp. 2-3. enforceable guidelines on priority of uses have been established with respect to gapc's and apr's (except for those areas already Thus, with respect to gapc's and even apr's, there is no restricted under the Wetlands Restriction Program). As we have assurance that the policies designed to assure protection already pointed out a number of times in these comments, under and preservation of these valuable ecological areas will the program as proposed, the EFSC retains the authority to site be implemented. energy facilities anywhere, including gapc's and apr's. The danger is further evidenced by the fact that [s]tate agencies outside of EORA will be unaffected by the the particular area where it is proposed to be located. For NOAA Reg. 923.15 mandates that national concerns be example, if a project proposed for a significant resource area "expressed and dealt with" in the development and implementation (ecological) not yet restricted under the Wetlands Restriction of the CZM Program. There must be assurance that there will be Act, will not adversely affect the following interests--protection no arbitrary exclusion or unreasonable restriction. On this of shellfish or fisheries, prevention of pollution, storm damage score the regulation requires no separate evidence beyond that prevention, flood control, groundwater supply and water supply-- national interest facilities have been considered "in a manner and whatever other standards are applicable, it may proceed.-/ similar to all other uses." Such a procedure is acceptable so long as the state is .The Massachusetts CZM Program goes too far in accommodating able to regulate all uses which may have a direct and significant energy facilities in the coastal zone. (See DEIS at 11-55). As impact on coastal waters. The problem with the. Massachusetts a result, the national interest in the protection and maintenance program is that it does not, as presently constituted, contain of fishing, recreational and ecologically valuable resources-(e.g., the means to regulate all such uses under the program. The barrier islands, wetlands, floodplains) is given inadequate reasons for this are the same as those referred to earlier in consideration in the face of energy facilities.-/ In discussing the discussion of the lack of comprehensiveness and enforceability the national interest in energy facilities siting, the program of the program. Rather than repeat the same points again, NRDC should clearly state that accommodation of such facilities is refers back to that discussion (under General Requirements). contingent on their consistency, at a minimum, with the marine environmental and coastal hazard policies of the program. E. Consideration of the National Interest NRDC recommends that Massachusetts' consideration of the CZMA �306(c)(8) requires "adequate consideration of the national interest be reevaluated in light of the requirements-in national interest involved in planning the proposed revised 306 regulations. These more fully -reflect for, and in the siting of, facilities (including energy facili- the broad range of national interests to be considered. ties in, or which significantly affect such state's coastal zone) which are necessary to meet requirements which are other than local in nature." -/This national interest is spelled out clearly in NOAA's Pro- posed Revised Coastal Zone Management Program Approval Regulations, 42 Fed. Reg. at 43571-3 (August 29, 1977). -/See e.g., Program at 80-1. F. Federal Consistency Procedures There is another disturbing factor concerning Massachu- setts' federal consistency procedures. Massachusetts appears The procedures established for determinations respecting to have exempted licenses or permits issued by the United States the consistency of federal activities, including development Nuclear Regulatory Commission from the consistency requirements. projects, and federal licenses or permits, with the coastal pro- (See a-54)(Procedures for Activities Requiring a Federal License gram are unclear. The program provides that CZM will undertake or Permit). Licenses and permits issued by the Federal Highway a review of consistency and if CZM objects to the certification Administration are not included either. It is critical that both statement of an applicant for a federal license or permit or these agencies be included under the consistency procedures. to a federal agency's consistency determination, then the license or permit may not be issued or mediation procedures may be G. Public Hearings initiated. (Program at 357). The same procedure applies with */ NRDC objects to the procedures followed by Massachusetts respect to federal assistance programs. (Program at 358).- with respect to the public hearings on the program. The Massa- This description appears to conflict with the description chusetts CZMP was formally submitted for federal approval before contained in the EOEA Response to the Utility Company et al. any public hearings were held in the state on the program being Legal Memorandum Concerning Coastal Zone Management (p. 3). submitted. In fact, a public hearing on the entire program was What is described there is an equivalency test: if the state not held until late November, 1977, when a series of joint issues all its licenses or permits, then CZM cannot determine federal-state hearings were held throughout the coastal zone.- that the federal license or permit is inconsistent with the What is disturbing about this procedure is that it deprived state's program. To the extent this description of federal con- members of the public of full opportunity for participation in sistency procedures conflicts with the procedure described in program development. The procedures followed also specifically the program, the procedure described in the program must prevail. This point should be clarified by the state. -/The DEIS states erroneously that a public hearing was held on the entire revised program in August prior to formal submittal. (p. 11-68). The August event was a public meeting, not a public hearing, and the state at the time made a big point of that. NRDC had specifically requested that a public hearing be held prior to program submission, but the state refused to hold !/It should be stated that such assistance must be consistent one until November, well after program submission. with the program, not merely coastal policies. (See Program at 358). violate the requirements of the CZMA, which were designed to the purpose of public participation in the development of the ensure public participation. program is to reflect public needs and aspirations in the use decisions for the coastal zone and to generate public support. Section 305(c) (3) of the Act specifically requires that Obviously, neither reflection of public need nor public support public hearings be held in the development of the State's manage- for the program is enhanced by submission of the program prior ment program. Since the management program is to be submitted for to full opportunity for public participation. for Section 306 approval after completion of program development, (Section 305(h) says that the program:is to be submitted "upon NRDC also objects to the procedures followed by the completion of the development of the state's management program...") Office of Coastal Zone Management. OCZM's determination of and since public hearings are required prior to completion of whether a program meets the CZMA requirements and regulations program development, the management program cannot be complete should be based on as final a state program as possible, i.e., for submission until these hearings are held. a fully developed program on which there has been full opportunity for public participation and public hearings. OCZM must assure The purpose for this requirement relates to the purposes that the program they are reviewing has already received maxi- and policy of the Act. Under Section 302(h) of the Coastal Zone mum input from the public and that the development process has Management Act of 1972, Congress found that: been complete. OCZM did not do that with respect to/Massachu- [T]he key to more effective protection...of the coastal zone is to encourage states to exercise setts' program. their full authority...in cooperation with federal and local governments and other vitally effected interests..." Section 303(d) declares that the policy of the Act is "to en- courage the participation of the public...in the development of coastal znhe management programs." The federal regulations under the CZMA also require com- pletion of public hearings prior to formal submission of the management program (16 C.F.R. 5S920.30 and 920.31 Coastal Zone Management Program Development Grants, Fed. Reg., Vol. 42, No. 83, Friday, April 29, 1977). According to these regulations, "67 COMMENTS OF NRDC AT THE JOINT FEDERAL-STATE HEARING ON TE iMASSACHUSETTS CZM PROGRAM AND THE DRAFT FEDERAL ENVIRONMENTAL IMPACT STATEMENT CONCLUSION NOVEMBER 22, 1977 NRDC believes that the Massachusetts program must be revised if it is to comply with the CzMA and receive Section The Natural Resources Defense Council (NRDC) is a national non-profit organi- sation, with a membership of 35,000, dedicated to the wise use of natural re-- 306 approval and funding. This can be done without additional sources. The Atlant p rograms coject of heOC has focused on whether state coastal management programs comply with the Coastal Zone Management Act of 1972 legislation. It can be done without inordinate delay. It must (CZMA). This is the key national environmental statute for protection of coastal areas. Because Massachusetts is the Atlantic coast state furthest along in seek- be done if this program is to further the goals of environmental ing approval by the Secretary of Commerce, the Massachusetts CZe Plan is of special significance. The Program and its treatment by the federal Office of protection and wise and effective coastal resource management. Coastal Zone Management will be closely watched by other coastal states now developing their own programs. Industry attacks on the Massachusetts Program are unwarranted. It will accom- plish almost nothing of what industry fears. In fact, it will not do nearly enough to protect the coastal zone. The public should realize that this is not an ambitious program, but is designed only to do the bare minimum to qualify for federal money. To do even that, more work is needed. The program cannot be approved at this time. Approval should be postponed until after specific agency coastal zone regulations are adopted for the Waterways Program, the Wetlands Protection Act, the Energy Facilities Siting Council and others; after the ten critical areas, called APR's, are designated; and after an Opinion of the Attorney General affirms the Program is legally enforceable. INDUSTRY OPPOSITIO IS UNFOUNDED Industry parades imagined horribles to try to kill this program. If only the industry critics were right. If only the Program did what they say it will do. In fact the Program is significant for what it does not do and the public ought to be aware of this. Industry and the public may be under the impression that this Program will create new environmental policies applicable throughout the coastal zone -to all state agencies, both environmental and non-environmental agencies, -inside and outside of the Executive Office of Environmental Affairs (EOEA). It vwould be a good Program if new policies would overlay present decision making, adding to agency authority to protect the coastal zone. Unfortunately, the reality is that these policies will legally govern decision making only by EOEA agencies. Most of the policies are not enforceable. They are implemented not by all state agencies but only by specific agencies already given environmental protection responsibi- lities, and they protect primarily wetlands and related areas, and only to the extent allowed by present law. 16' It would be wonderful if, as industry fears, this Program for the first time The Coastal Zone Management Act is an environmental statute emphasizing planning would direct growth in the coastal zone, channeling desirable development to and sound decisions to protect natural biological and physical resources, and suitable areas and routing improper uses away from fragile areas, In reality the important ecological, cultural, historical and aesthetic values in the coastal this program essentially will only regulate impacts. This Program just zone". Congress found that population growth and economic development "have re- "networks" or coordinates existing permit programs and review under the Massa- suited in loss of living marine resources, wildlife, nutrient-rich areas, per- chusetts Environmental Policy Act ("EPA), and review of energy facilities manent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion". The industry critics are wrong in thinking this Program will create a fresh relationship witsh loal governmentmuch ast thiat ay be desirable, giving the The Massachusetts Program is designed to Just qualify Massachusetts for federal relationship with local government, much as that may be desirable, giving the approval and frankly It does not do enough. state authority to override zoning and subdivision control decisions. Of course approval and frankly it dos not do enough. it is absurd to leave out of a program control over use and density of develop- ment. Use and density influence the coastal zone almosit more than anything else. In reality, under this Program, planning boards in the coastal zone will continue to allow huge subdivisions, apartment complexes, heavy use of groundwater, local road building and locally financed sewer construction. These things are beyond the Program. The guts of the Massachusetts Program is not in place. Preliminary approval already has been given and the state is receiving federal funds for the good Although industry would disagree, it would be a good idea to designate EOEA as parts of the program, especially additional funding for the Wetlands Protection a superagency, with a veto over all Wetlands Protection Act, Division of Water Act activities of the Department of Environmental Quality Engineering (DEQE) Pollution Control and Waterways Program permits, with a new day-to-day regulatory and the Wetlands Restriction Act program of the Department of Environmental control of agency commissioners. In reality the agency comuissioners under this Management (DEM). But the public needs more and deserves more and it is no hard- Program will be held to doing only what existing law would allow them to do, and ship for the state to deliver more. The only solid part of the Program will be no more, and the:Secretary of EOEA will not review their decisions unless failures specific agency coastal zone management regulations. They must be in place to implement coastal zone policies are brought to her attention. before approval. What the public wants to know is that the program will change the present situation, that it will protect the coastal zone more than is now If only the industry critics were correct that Areas for Preservation or Restora- done. tion (APR) were going to be guarded by "keep out" signs, directed especially at energy facilities. In reality designation of an APR will basically just eliminate H ere is why the regulations are needed now. The agency r egulations are the any categorical exemption under MEPA for work in the APR, meaning that an building blocks for the program. Without them we will not know how the program Environmental Assessment Form must be filled out. And contrary to the published may address any specific project. Without them there is no predictability as CZM Plan, the Massachusetts CZM Office is now saying that energy facilities will the federal Coastal Zone Management Act requires. not be prohibited in APR's and the Energy Facilities Siting Council, not EOEA, will have the final say,. With the regulations, present opposition to the Program, based upon imagined sweeping reforms, will be defused, and the,-Program will be much less vulnerable to industry challenge and industry effortsi to distort it in the regulation- If only this Program.as feared by industry, would measure against the new CZHto distort it in the regulation policies all federal projects, federal grants, Outer Continental Shelf' (OCS) writing process. development plans of industry, and federal licenses and permits, with an inde- pendent determination by the state that the work is consistent with the policies. The regulations for the line agencies alsQare needed so the public knows what In reality applcants for licenses and permits will write their own consistency it is getting. Remember that the Draft Environmental Impact Statement (DEIS) e statements or, fwor se, proposalmts w ill rbe autoa tically deemed consistent if a is the first document available to make the Program understandable with a short, statements or, worse, proposals will be automatically deemed consistent if a wetlands or other permit required under the Program is obtained. This is the digestible discussion of what the Program will and will not do. The DEIS is so-called "equivalency" approach to determining consistency with the Program. the first available to illustrate what policies are enforceable and The public should not feel confident with this automated approach, what are not. The DE If this Program is approved it will mean little change over the present situation. Of course, the entire Program must be enforceable, Massachusetts CZM is saying What little it does offer to protect the environment may be more than offset by that after approval private citizens will be able to sue to force EOEA agencies benefits conferred on industry. Industry will get access to the Secretary ofjects for Commaerce in Washington in order to override any determination by the state that noncompliance. Enough doubt on this has been raised to warrant a clear Opinion a federal project, grant, license or permit, or any OCS work is inconsistent of the Attorney General on point before Program approval. with the Program. Industry will get to take advantage of the prohibition in federal law against arbitrary exclusions from the coastal zone of any use of Legal niceties aside, only with agency regulations will the Program be workable, regional benefit and the obligation in federal law for the state to take account The so-called Chapter 21A regulations at the level of the Executive Office of of the "national interest" in reviewing such facilities. Environmental Affairs CEOEA) will not be enough, In some respects the use of the Waterways Program, the Wetlands Protection Act, the Wetlands Restriction Act, Title 5, and the Energy Facilities Siting Council is ambitious, The public needs regulations now to be sure the program has not been oversold. Imagine going on February 24, the day after Program approval, to the DEQE Waterways Program (which has no regulations now) in an effort to stop dredging It is hard to see how people who want to protect the coastal zone can be between April 15 and June 1 where there are herring runs, or to force selec- effective when they must show up at these agencies with an 800 page CZM Plan, tion of hydraulic dredging as a preferred method, or to limit the type of plus Hemos of Understanding, generally worded policies, a Regional Chapter vessels or barges used, or to give advance notice to fishermen, or to limit witlh maps and evaluations of how the Program should work, and Chapter 21A turbidity in the discharge plume, or to require extra justification for private regulations of the Secretary which do not on their face amend the Wetlands flood or erosion control projects. These are all promised in the Massachusetts Protection Act and other specific agency regulations. CZM Plan. What all this means is that the Program in its present shape will be a tremen- Imagine going on February 24 to a local Conservation Commission to force it to dous burden on citizens and interested groups to.enforce. It means they will treat salt marsbes, shellfish beds, dunes, beaches and salt ponds as extra have to master a mass of material, explain to state agencies what it means, and critical wetland types "moriting the highest degree of protection", or to impose push these agencies to implement the policies. It means that opponents of the special conditions on work to create private docking space (including a mandate Program will be able to argue not only that the Secretary of Environmental that it be shared with neighbors and that there be no work in the future), or to Affairs does not have legal authority to adopt the Program but also that forbid structural solutions for erosion control except where no damage will occur regulations have not been adopted by the agencies to make the program stick, to adjacent property, All these things are promised in the CZH Plan. It means that the public, time and time again, will have to invoke the "con, flict resolution" procedure set up in the Program to bring to the Secretary's Imagine going on February 24 to the Division of Hineral Resources (which is non- attention failures to implement CZM policy, If regulations vcre in place, existent) to employ its program (which has no regulations now) in order to pre- appeals of this nature would be minimized by making the Program work the first vent sand and gravel mining under the ocean above the 80-foot contour, or where time around, when permits are issued and other decisions are made at lover levels, there is a productive sport or commercial fishery. The CZE Plan promises these restrictions will apply. There is nothing magic in the February 23 target date for federal approval. Preliminary approval monies already are coming to the state and will last at Imagine going on February 24 to the Division of Water Pollution Control to push least until March 31. Final approval is not necessary at this time and it for promised limits on sewer funding within the 100-year flood plain in the should be posponed until we have agency regulations in place and the Areas coastal zone, including allowing structural solutions in high risk areas only for Preservation or Restoration (APR)'areproticted; In the'meantime the if a non-structural solution would be ineffective or coat prohibitive. Regula- federal government will continue to fund the good parts of the program tions are needed to define these terms. already in place. That is what preliminary approval is for. Imagine going to the Energy Facilities Siting Council (EFSC) on February 24 to push for the "prime consideration" which the CZM Plan says will be given to The DOiafE-nvirianintal Iipatc Stat~emnt C-(EIS) aileady promi ses'regdlationi environmental factors when putting power plants in the coastal zone, or to push for the Waterways Program and the Wetland Protection Act by June. The state for consideration of an inland site for a power plant. The Siting Council will has promised to circulate drafts of regulations for these programs plus the answer that there are no agency regulations implementing these promises and any- Energy Facilities Siting Council and other program elements by February 23, way the Siting Council retains full discretion to allow energy facilities any- There is plenty of time for public notice under the state Administrative where and en any terms it sets. Procedure Act, a public hearing, and adoption prior to March 31, The ten APR's have all been geographically delineated, the justification for their Imagine going to the HEIA Review Office on February 24 and finding that designation already has been stated, and the procedure is now available in, categorical exemptions still apply for state projects and state licenses in the EOEA for them to be designated for more protection, Areas for Preservation or Restoration (APR) because, althougli we know where they are and why they should be protected, they have not been formally designated If this program is to be even minimally comprehensive enough, predictable and will not be for about one year, although the CZM Plan says it could be. even enough and enforceable enough then specific agency coastal zone regulations longer. must be adopted first, along with designation and better protection of critical geographic areas. The APR's are the ten resource areas of unique productivity, mapped on page 11-9 of the Draft EIS. No new industrial or hazardous discharges will be allowed in APRs, no dredgtng except for maintenance or marine productivity, no rv/~'-- 7 dredge spoil disposal except for beach or dune protection, and no new sewage Gregor I,. McGregor, Esq. treatment facilities. Most APR's are already covered in part by Wetlands 33 Mt, Vernon Streets Deacon Bill programs. The remaining areas are areas of accretion, coastal view points, Boston, MA 02108 individual sites of historic, archeological, architectural or cultural value, developed harbors, urban waterfronts and coastal recreation sites. APR pro- For Natural Resources Defense Council, Inc. tection is supposed to be for sites needing much further study. These sites should be protected now. 170 of the coastal policies will occur only in an extremely limitei designation [of critical areas of environmental concern/apr'sn number of cases. except pursuant to a Memoranda of Understanding or pursuant to MEPA..." (Program at 324). As discussed above, however, neither Finally, there are no enforceable guidelines on Ipriorit. MOU's nor MEPA constitute effective mechanisms for ensuring that of-uses for gapc's or apr's except for those already re tricte1 uses inconsistent with the program will be prevented or appro- under the Wetlands Restriction Program. Section 305(b) 5) of priately conditioned. The program must demonstrate that through the Act requires states to set "broad guidelines on priority- the exercise of authority by agencies bound by the program, the of uses in particular areas, including specifically thoge uses program will be adhered to and development which occurs will be of lowest priority." These guidelines, together with t e de- consistent with the program. finition of permissible uses, should be the basis for rsgulati of land and water uses in the coastal zone. Yet the Ma sachus lts Another concern relates to procedures established under program fails to carry out this mandate even for gapc's and aplo s. the program for invocation of the conflict-resolution process Such guidelines exist only for areas restricted under the Wet- whenever implementation of a coastal policy would conflict with lands Restriction Program. the "compelling public interest" and for the eventual override of the coastal policy by the Secretary. For example, at page 88 D. Permissible Land and Water Uses of the program, there is a footnote which provides that in Section 305(b)(2) of the Act directs that each manageme : situations where prohibition of activities in apr's "would con- program include 'a definition of what shall constitute Eermiss. flict with the compelling public interest" the conflict resolu- ible land and water uses within the coastal zone which l ave a tion process should be used. This process, detailed in the direct and significant impact on the coastal waters." 'ection Management chapter and the Chapter 21A regulations, provides for 305(b)1(4) requires an identification of the means by wh ch the the Secretary's override of coastal policies where there are more whi state proposes to exert control over such uses. substantial or compelling public interests or concerns which would be jeopardized by the application of CZM policy. (Program Massachusetts' approach to use permissibility is primari y at 324). Such a procedure is unacceptable, for it leaves vir- a performance standard approach. Under such performance stand i ds, tually unbridled discretion in the hands of the Secretary. No whatever particular development is proposed has to meet the definition of "substantial" or "compelling" public interests or specified performance standards and criteria for the project an concerns is provided. Nor is it stated that such an override ch11:mh1-1 let-n-( '.,111' Iz December 13, 1977 IS I 111; SI I, It nl . NIA- I I Dr. Evelyn F. Murphy, Secretary Executive Office of Environmental Affairs Leverett Saltonstall Building 100 Cambridge Street DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR Boston, Massachusetts 02202 PROPOSED MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGR ear Secretary Murphy: Enclosed are two copies of written comments on the Draft Environmental Impact Statement issued October 14, 1977, on the proposed Massachusetts Coastal Zone Manage- ment Program. These comments are submitted to your office under the provisions of DECEMBER 13, 1977 the Massachusetts Environmental Policy Act, and are being submitted concurrently under the provisions of the National Environmental Policy Act to the Office of Coastal Zone Management, National Oceanic and Atmospheric Administration. The comments question both the legal authority for the Massachusetts CZM Plan and its practical consequences for Massachusetts. For the reasons stated in our comments, we respectfully request: 1. that the Commonwealth of Massachusetts withdraw the Coastal Zone Management Program as submitted for approval; 2. that the Massachusetts Secretary of Environmental Affairs find that the Draft Environmental Impact Statement does not adequately comply with the Massachusetts Environmental Policy Act, G.L. c.30, 1961 and 62; 3, that it be determined that this Draft Environmental Impact Statement is inadequate under the National Environmental Policy Act; and 4. that the Associate Administrator disapprove the Coastal Zone Management Program of the Commonwealth of Massachusetts under the Coastal Zone Management Act, 15 U.S.C. 11451 et seq. SUBMITTED BY These written comments have been prepared jointly by the following entities, and are submitted in their behalf: GREATER BOSTON CHAMBER OF COMMERCE, et al. Greater Boston Chamber of Commerce 125 High Street Boston, Massachusetts 02110 Attn: Robert R. Ruddock, Esq. Director of Metropolitan Affairs 17/ Dr. Evelyn F. Murphy -3- December 13, 1977 Dr. Evelyn F. Murphy -2- December 13, 1977 Fall River Gas Company 155 North Main Street Boston Edison Company Fall River, Massachusetts 02722 225 Franklin Street Boston, Massachusetts 02110 Attn: Michael T. Gengler, Esq. Rich, May, Bilodeau & Flaherty Attn: Francis M. Lee, Esq. 296 Washington Street Environmental Planner Boston, Massachusetts 02108 Associated General Contractors of Massachusetts, Inc. Massachusetts Construction Industry Council 220 Boylston Street 20 Kilby Street Chestnut 111l, Massachusetts 02167 Boston, Massachusetts 02109 Attn: William D. Kane Atto: Donald M. Manzelli Executive Assistant Tri-Chairman Massachusetts Electric Company Utility Contractors Association of New England, Inc. New England Power Company 399 Neponset Street New England Power Service Company Canton, Massachuetts 02021 20 Turnpike Road Westboro, Massachusetts 01581 Attn: Joseph J. Struzziery, Jr. Executive Director Attn: Patrick J. Kenny, Esq. Attorney Building Trades Employers Association of Boston and Eastern Massachusetts, Inc. Home Builders Association of Massachusetts, Inc. 147 Milk Street 93 Purchase Street Boston, Massachusetts 02109 Boston, Massachuetts 02110 Attn: Thomas S. Gunning Atto: Caren Bresnick, Esq. Executive Director Executive Vice President Construction Industries of Massachusetts, Inc. We wish to enumerate the documents on which these comments are submitted, since 20 Kilby Street there have been a number of drafts of the Massachusetts CZM Program documents, and Boston, Massachusetts 02109 revisions have been made during the course of the general review process: Atto: Paul Griffin 1. Draft Environmental Impact Statement issued by OCZM on October 14, 1977. Legislative Director 2. Massachusetts Coastal Zone Management Program dated March 18, 1977, (as Algonquin Gas Transmission Company revised and published in July, 1977) (two volumes, including all appendices). 1284 Soldiers Field Road Boston, Massachusetts 02135 3, Addendum dated October 7, 1977, to Massachusetts Coastal Zone Management Prograyh. Atto: Kevin J. Donahue Environmental Engineer You should note that our comments include the following enumerated documents for your consideration and response in evaluating the DEIS and the Massachusetts CZM Program: New Bedford Gas and Edison Light Company 675 Massachusetts Avenue A, Memorandum of Law by John J. Desmond, 111, Esq. of Boston Edison Company, Cambridge, Massachusetts 02139 dated April 26, 1977. which relates to treatment of the Energy Facilities Siting Council under the Massachusetts CZM Plan. and Dr. Evelyn F. Murphy -4- December 13, 1977 B. Memorandum of Law by Michael T. Gengler, Esq., Rich, May Bilodeau & Flaherty, dated May 5, 1977, which relates to Coastal Zone boundaries and to treatment of general permitting statutes under the Plan. 13~ Ili~lS~c,: December 13. 1977 .C. Memorandum of Law dated May 6, 1977, by Patrick J. Kenny, Esq., of New 11 t.f December 13 1977 England Power Service Company, which relates to the legal authority of Ti: .l6 lY10 the Secretary of Environmental Affairs to promulgate and administer the CZM Plan. Office of Coastal Zone Management D. Draft Legal Commentary on the Massachusetts Coastal Zone Management Plan National Oceanic and Atmospheric Administration dated October 17, 1977, prepared by representatives of the Massachusetts Room 3280 Home Builders Association, the Greater Boston Chamber of Commerce, Boston 3300 Whitehaven Street, N. W. - Edison Company, New England Power Service Company, Algonquin Gas Transmis- Washington, D. C. 20235 sion Company, New Bedford Gas and Edison Light Company and Fall River Gas Company. Attention: Ms. Kathryn Cousins E. Letter of John J. Kearny of Edison Electric Institute to Michael Shapiro, Gentlemen: National Programs Office, Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, dated October 28, 1977, with Enclosed are two copies of written comments on the Draft Environmental Impact attached commentary on federal consistency regulations. Statement issued October 14, 1977, on the proposed Massachusetts Coastal Zone Manage- ment Program. These comments are submitted to your office under the provisions of P. Letter of Robert W. Knechtj Acting Associate Administrator for Coastal the National Environmental Policy Act, and are being submitted concurrently under the Zone Management, National Oceanic and Atmoseheric Administration, to Massachusetts Environmental Policy Act to the Massachusetts Secretary of Environmental lion. George Rogers, Chairman of the Joint Committee on Natural Resources, Affairs. The comments question both the legal authority for the Massachusetts CZM Plan Massachusetts Legislature (undated). and its practical consequences for Massachusetts. Also referred to in our written comments on the Draft Environmental Impact State- For the reasons stated in our comments, we respectfully request: ment is a Report to the Massachusetts Office of Coastal Zone Management dated July 1, 1975, entitled "Existing Institutional Capacity for the Management of Resouces and 1. that the Commonwealth of Massachusetts withdraw the Coastal Zone Growth in the Massachusetts Coastal Zone", prepared by Alan H. Kaufman, Esq., of the Management Program as submitted for approval. Conservation Law Foundation of New England, Inc., which concludes generally that existing statutory authority in Massachusetts is not adequate or suitable for implementation of 2. that the Massachusetts Secretary of Environmental Affairs find that a Coastal Zone Management Program by the Executive Office of Environmental Affairs. A the Draft Environmental Impact Statement does not adequately comply copy of this report is incorporated by reference into these comments, and your response with the Massachusetts Environmental Policy Act, G.L. c.30, F161 and 621 thereto is also solicited. 3. that it be determined that this Draft Environmental Impact Statement Although some of the above referenced documents were prepared prior to release of is inadequate under the National Environmental Policy Act; and the Draft Environmental Impact Statement, the concerns addressed thereon have not been adequately resolved in the Massachusetts CZM Program or in the DEIS, and require responses 4. that the Associate Administrator disapprove the Coastal Zone Management by OCZM and the Massachusetts Secretary of Environmental Affairs. Program of the Commonwealth of Massachusetts under the Coastal Zone Management Act, 15 U.S.C. 11451 et seq. Please send copies of your responses to these comments to each of the individuals named above as joint submitters of the comments. You may also contact any of these These written comments have been prepared jointly by the following entities, and individuals if you have any questions concerning our comments. are submitted in their behalf: A uy I G~ ~-~> O Greater Boston Chamber of Commerce 125 High Street Boston, Massachusetts 02110 Robert R. Ruddock, Director Metropolitan Affairs Attn: Robert R. Ruddock, Esq. cc: Ms. Kathryn Cousins Director of Metropolitan Affairs Office of Coastal Zone Management N.O,A.A. Washington, D. C. 20235 j73 -3- Fall River Gas Company 155 North Main Street Boston Edison Company Fall River, Massachusetts 02722 225 Franklin Street Boston, Massachusetts 02110 Atto: Michael T. Gengler, Esq. Rich, May, Bilodeau & Flaherty Atto: Francis M. Lee, Esq. 294 Washington Street Environmental Planner Boston, Massachusetts 02108 Associated General Contractors of Massachusetts, Inc. Massachusetts Construction Industry Council 220 Boylston Street 20 Kilby Street Chestnut Hill, Massachusetts 02167 Boston, Massachusetts 02109 Attn: William D. Kane Attn: Donald M. Manzelli Executive Assistant Tri-Chairman Massachusetts Electric Company Utility Contractors Association of New England, Inc. New England Power Company 399 Neponset Street New England Power Service Company Canton, Massachusetts 02021 20 Turnpike Road Westboro, Massachusetts 01581 Attn: Joseph J. Struzziery, Jr. Executive Director Attn: Patrick J. Kenny, Esq. Attorney Building Trades Employers Association of Boston and Eastern Massachusetts, Inc. Home Builders Association of Massachusetts, Inc. 147 Milk Street 93 Purchase Street Boston, Massachusetts 02109 Boston, Massachusetts 02110 Attn: Thomas S. Gunning Atto: Garen Bresnick, Esq. Executive Director Executive Vice President Construction Industries of Massachusetts, Inc. We wish to enumerate the documents on which these comments are submitted, since 20 Kilby Street there have been a number of drafts of the Massachusetts CZM Program documents, and Boston, Massachusetts 02109 revisions have been wade during the course of the general review process: Attn: Paul Griffen 1. Draft Environmental Impact Statement issued by the OCZM on October 14, 1977. Legislative Director 2, Massachusetts Coastal Zone Management Program dated March 18, 1977, (as Algonquin Gas Transmission Company revised and published in July, 1977) (two volumes, including all appendices), 1284 Soldiers Field Road Boston, Massachusetts 02135 3. Addendum dated October 7, 1977, to Massachusetts Coastal Zone Management Program. Atto: Kevin J. Donahue Environmental Engineer You should note that our comments include the following enumerated documents for New Bedford Gas and Edison Light Company your consideration and response in evaluating the DEIS and the Massachusetts CZM Program: 675 Massachusetts Avenue r675 d Massachusetts Avenue A. Memorandum of Law by John J. Desmond, III, Esq. of Boston Edison Company, Cambridge, Massachusetts 02139 dated April 26, 1977, which relates to treatment of the Energy Facilities ~~~~~~~~~~~~~~~~and ~~~Siting Council tunder the Massachusetts CZM Plan. ~~~~~~~~7andI' -_~~~~~~~~~~4-_~~~~~~~ ~TABLE OF CONTENTS B. Memorandum by Law by Michael T. Cengler, Esq., Rich, May, Bilodeau & SECTION Flaherty, dated May 5, 1977, which relates to Coastal Zone boundaries PAGE and to treatment of general permitting statutes under the Plan. I. GENERAL COMMENTS ON THE DEIS C. Memorandum of Law dated May 6, 1977, by Patrick J. Kenny, Esq., of New A. INTRODUCTION TO COMMENTS 1 England Power Service Company, which relates to the legal authority of the Secretary of Environmental Affairs to promulgate and administer the B. FAILURE OF THE DEIS TO DESCRIBE ACCURATELY THE C'1M Plan. MASSACHUSETTS CZM PROGRAM 2 D. Draft Legal Commentary on the Massachusetts Coastal Zone Management Plan C. FAILURE OF THE DEIS TO DESCRIBE ADEQUATELY THE ENVIRONMENTAL dated October 17, 1977, prepared by representatives of the Massachusetts AND SOCIO-ECONOMIC IMPACT OF THE MASSACHUSETTS COASTAL ZONE Home Builders Association, the Greater Boston Chamber of Commerce, Boston MANAGEMENT PROGRAM AND TO DESCRIBE ALTERNATIVFS 4 Edison Company, New England Power Service Company, Algonquin Gas Tranamis- sion Company, New Bedford Gas and Edison Light Company and Fall River Gas D. FAILURE OF THE DEIS TO DESCRIBE ACCURATELY THE NATIONAL INTEREST Company. AND CONSISTENCY REQUIREMENTS OF THE COASTAL ZONE MANAGEMENT ACT AS THEY RELATE TO THE MASSACHUSETTS CZM PROGRAM AND THE FAILURE E. Letter of John J. Kearny of Edison Electric Institute to Michael Shapiro, OF THE MASSACHUSETTS CZM PROGORAM TO COMPLY WITH SUCH REQUIREMENTS 7 National Programs Office, Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, dated October 28, 1977, with E. THE FEDERAL OFFICE OF COASTAL ZONE MANAGEMENT ALREADY HAS attached commentary on federal consistency regulations. DETERMINED THAT THE MASSACHUSETTS CZM PROGRAM IS CONSISTENT WITH THE POLICIES OF THE COASTAL ZONE MANAGEMENT ACT. THE F. Letter of Robert W. Knecht, Acting Associate Administrator for Coastal FEDERAL OCZM AND THE MASSACHUSETTS ROEA DO NOT INTEND TO CON- Zone Management, National Oceanic and Atmospheric Administration, to SIDER SERIOUSLY THE PUBLIC COMMENTS TO THE DEIS AS A TOOL IN THE lion. George Rogers, Chairman of the Joint Committee on Natural Resources, DECISION-MAKING PROCESS. THE DEIS 1S AN AFTER-THE-FACT RATIONALI- Massachusetts Legislature (undated). ZATION FOR A DECISION ALREADY MADE. 12 Also referred to in our written comments on the Draft Environmental Impact State- II. COMMENTS ON INTRODUCTION, PART 1, DEIS 15 ment is a Report to the Massachusetts Office of Coastal Zone Management dated July 1, 1975, entitled "Existing Institutional Capacity for the Management of Resources and III. COMMENTS ON TABLE OF COASTAL ZONE MANAGEMENT ACT AUTHORITIES Growth in the Massachusetts Coastal Zone", prepared by Alan H. Kaufman, Esq., of the FOLLOWING PACE 1-4 OF DEIS: THE MASSACHUSETTS COASTAL ZONE MANAGE- Conservation Law Foundation of New England, Inc., which concludes generally that existing MENT PROGRAM FAILS TO CONFORM TO THE REQUIREMENTS OF SECTION 306 OF statutory authority in MassachuSetts is not adequate or suitable for implementation of THE COASTAL ZONE MANAGEMENT ACT 19 a Coastal Zone Management Program by the Executive Office of Environmental Affairs. A copy of this report is incorporated by reference into these comments, and your response IV. COMMENTS ON PART II, CHAPTER 1, OF DEIS 25 thereto is also solicited, A. PART II, CHAPTER 1, OVERVIEW 25 Although some of the above referenced documents were prepared prior to release of the Draft Environmental Impact Statement, the concerns addressed thereon have not been B. OVERVIEW A (p.11-1) 25 adequately resolved in the Massachusetts CZN Program or in the DEIS, and require responses by OCZM and the Massachusetts Secretary of Environmental Affairs. C. OVERVIEW C (p.l-1) 26 Please send copies of your responses to these comments to each of the individuals V. COMMENTS ON PART 11, CHAPTER 2, OF DEIS 30 named above as joint submitters of the comments. You may also contact any of these individuals if you have any questions concerning our comments. A. MARINE ENVIRONMENT POLICIES 30 Very truly yours, _- B. COASTAL HAZARDS POLICIES 37 ~~/J~~1~~~~v / .~ 2C. VISUAL ENVIRONMENT 41 Robert R. Ruddock, Director D. PORTS AND HARBORS 48 Metropolitan Affairs cc: Dr. Evelyn F. Murphy, Secretary E. RECREATION 50 Executive Office of Environmental Affairs Commonwealth of Massachusetts, 100 Camb. St. 96, F. POLICIES 28-33 58 G. GENERAL DEVELOPMENT AND PUBLIC' (AND PRIVATE) INVESTMENT POLICIES 64 XVI. COMMENTS ON PART VII OF DEIS: IRREVERSIBLE OR IRRETRIEVAB.E COMMITI/ENTS VI. COMMIENTS ON PART II, CHAPTER 3 OF DEIS 81 131 XVII. COMMENTS ON PART VII OF DEIS: CONSULTATION AND COORDINATION 132 VII. COMMENTS ON PART II, CHAPTER 4 OF DEIS 82 XVIII. COMMENTS ON CZM HAPS A. PART II, CHAPTER 4, SECTION A OF THE DEIS FAILS TO DESCRIBE COMMENTS ON CM 133 ACCURATELY THE FUNCTIONS OF THE STATE AGENCIES REFERRED TO THEREIN 82 XIX. COMMENTS ON THE DEIS APPENDIX 134 134 B. PART II. CHAPTER 4, SECTION B 84 A. MEMORANDUM KNEED AUGUST 23. 1977, RE - ENERGY FACILITIES 134 C. PART II, CHAPTER 4, SECTION C 84 B.- MEMORANDUM OF JULY 29, 1977, RE - SHORELINE EROSION/MITIGATION D. PART II, CHAPTER 4, SECTION D 84 136 XX. CONCLUSION 111. COMMENTS ON PART II, CHAPTER 5 OF DEIS: LOCAL COMMUNITIES 105 138 APPENDIX IX. COMMENTS ON PART II, CHAPTER 6 OF DEIS 109 K. COMMENTS ON PART II, CtAPTER 7 OF DEIS: HOW THE MASSACHUSETTS COASTAL ZONE MANAGEMEN? PROGRAN WAS PREPARED 111 ' XI, COMMENTS ON PART III, .EIC ER 2 OF DEIS: PROBABLE IMPACTS ON THE ENVIRONMENT 113 CII. COMMENTS ON PART III, *PTER 2 OF DEIS: IMPACTS ON EXISTING AUTHORITY 118 A. PART III, CHAPTER 2, SECTION A 118 B. PART III, CHAPTER 2, SECTION B 119 C. PART III, CHAPTER 2, WATERWAYS 120 D. PART III, CHAPTER 2, SECTION E, THE ENERGY FACILITY SITING COUNCIL 121 E. PART III, CHAPTER 2, SECTION F, MEPA 121 F. PART III, CHAPTER 2, SECTION G, APR'S 121 G. PART III. CHAPTER 2, SECTION H, INFRASTRUCTURE 121 XIII. COMMENTS ON PART' IV OF DEIS 123 A. THE FEDERAL ALTERNATIVE '123 B. STATE ALTERNATIVES 128 XIV. COMMENTS ON PART V OF DEIS: PROBABLE ADVERSE ENVIRONMENTAL EFFECTS WHICH CANNOT BE AVOIDED 129 XV. COMMENTS ON PART VI OF DEIS: RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF THE ENVIRONMENT AND THIE MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY 130 176 -2- I. GENERAL COMMENTS ON THE DEIS The Massachusetts CZH Program fails to take into account in an The Draft Environmental Impact Statement (DEIS) prepared by the adequate manner the national interest in the siting of energy facilities The Draft Environmental Impact Statement (DEIS) prepared by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, er facilities needed in the national nterest. The sheer bulk of the Massachusetts CZH Program, the vagueness Office of Coastal Zone Management, notice of availability of which was the Massachusetts CZ Program, the vagueness and generality of its language, the numerous contradictions between the published in the October 14, 1977 Federal Register, is incomplete and inadequate under both the National Environmental Policy Act and the Massachusetts CZA Program, the DEIS, and the various statements of State officials concerning the Massachusetts CZN Program, all make it virtually Massachusetts Environmental Policy Act. impossible for meaningful public participation and public coament concerning It fails to describe accurately the Massachusetts Coastal Zone and Public coent concerning the Program to take place. The status of the draft regulations of the EOEA Management Program submitted by the Governor of Massachusetts on March 18, contained in the Massachusetts CZ" Program document is unclear. Indeed the 1977 and revised by an Addendum dated October 7, 1977 (the Massachusett s Federal CZi Reg ulations are undergoing continuous changes with major Federal OCZM Regulations are undergoing eontinuous changes with majot Coastal Zone Management Program). amendments proposed on August 29, 1977 unresolved. Five years after passage The DEIS does not contain an adequate description of the environ- mental and socioeconomic impact of the Massachusetts CZM Program, including Of the Coastal Zone Management Ac, NO regulations n Federal consistency have yet to be issued in final form. Until such regulations are promulgated the impact of the Federal consistency requirements of the Coastal Zone Management Act as they relate to the Massachusetts CZM Program. It fail actions must be consistent with the tate Program, what elements of the actions must be consistent with the State Ptogrma, what elements of the to describe adequately alternatives to the Program as proposed. to describe adequately alternative to the Program as proposed. program are involved, and the nature and timing of exemptions from consis- As is explained elsewhere throughout these comments, the bulk of tecy requirements, or the procedures for determining consistency, exemptions the Massachusetts CZM Program is illegal under Massachusetts law in that it and appeals. and appeals. contains assertions of regulatory and management authority on the part of certain State agencies beyond the powers granted to them by the Massachusetts B. FAILURE OF TIHE DEIS TO DESCRIBE ACCURATELY THE MASSACHUSETTS Legislature and illegally restricts the discretion of other agencies. Most CZm PROGRAM of the Massachusetts CZM Program is unenforceable under Massachusetts or The DEIS shows evidence of being a hastily slapped-together Federal law, and fails to meet the enforceability requirements of the Coastal document with no serious attempt to carefully match the DEIS with the Zone Management Act. The procedures proposed for adoption of the Massachusetts actual contents of the Massachusetts CZM Program. For example, the text CZM Program would violate the Massachusetts Administrative Procedure Act. 133 -3- of Policy 26 on page 1 of the October 7, 1977 Massachus etts CZM Program Page 350 of the Massachusetts CZM Program document asserts Addendum differs from the text of Policy 26 contained on Page II-19 of the "Covered by the [Federal] Act's federal consistency provision are: DEIS. Indeed the October 7 Addendum is dated the same day as the day the (1) Federal licenses and permits, including those issued in conjunction DEIS was submitted to the Council on Environmental Quality. Yet the DEIS with Outer Continental Shelf exploration and development .. ." This is attempts to treat intelligently the entire Massachusetts CZM Program. a different assertion of jurisdiction than that contained in page I-4 of the Also there are obvious gaps and incomplete sentences in the text DEIS: "The State must concur with any applicant's certification that a of the printed DEIS. The cover letter of Sidney R. Galler, Deputy Assistant Federal license or permit affecting land and water uses within the coastal Secretary of Commerce for Environmental Affairs is undated and the one- zone is consistent with the State's coastal zone management program. Section sentence second paragraph of that letter is incomplete. 307 of the Coastal Zone Management Act requires that any outer Continental Also, page 5 of the 10-page unsigned memorandum from the Shelf oil and gas activity described in an exploration, development, or Massachusetts Executive Office of Environmental Affairs dated August 23, production plan be certified to the Secretary of the Interior that it is 1977 contained as an unnumbered Appendix to the DEIS states "The [Energy consistent with an approved State management program". Facilities Siting] Council's regulations also call for it frequently to act consistently with current health, environmental protection and resource C. FAILURE OF THE DEIS TO DESCRIBE ADEQUATELY THE ENVIRONMENTAL AND SOCIO-ECONOMIC IMPACT OF THE MASSACHUSETTS COASTAL ZONE use and development policies of the Commonwealth. . . . Thus, once the MANAGEMENT PROGRAM AND TO DESCRIBE ALTERNATIVES Secretary promulgates the Chapter 21A regulations, the CZM Plan is such an The Massachusetts CZM Program evidences a strong bias toward environmental policy." (emphasis added]. Contrast this with the statement restricting port areas and other coastal areas against "non-maritime on page IV-4 of the DEIS that the Federal "OCZM has preliminarily determined dependent" industrial development. (See policy 17 and the energy policies.) that these policies (the energy policies in the Massachusetts CZM Program] If the text of the Massachusetts CZM Program is followed are also enforceable as written [i.e. simply backed up by a memorandum of faithfully by the implementing agencies one might expect a buildup of understanding between the Massachusetts Energy Facilities Siting Council industrial activity in Massachusetts inland of the Coastal Zone, and in and the Executive Office of Environmental Affairs], given the EFSC's adjacent states to accommodate new industrial activity displaced from the statutory dirty to ensure consistency with current State environmental Coast. The environmental impact of such a shift of industrial activity policies. This obligation is further defined by the MOU [Memorandum of inland and out of State on the areas which are to experience growth is not Understanding] between the EFSC [Massachusetts Energy Facilities Siting addressed in the DEIS, and only a cursory fraction of a page is devoted to Council] and EOEA". [Emphasis added.] 'l's -5- -6- the social and economic impacts of a shift inland (see p. 111-4). No attempt of the Program absent implementing regulations by the agencies charged with is made to quantify the impact on property values, local tax revenues responsibility under the Program. (See discussion below plus November 22, referred to on page 111-4. Failure to consider inland environmental impacts 1977 comments of the Natural Resources Defense Council on the DEIS.) The is especially unfortunate given the priority under the CZM Program of DEIS fails to discuss the more rapid implementation of a truly enforceable completing the Wetlands and Coastal Wetlands Restriction Act programs in the CZM Program that would result if the alternatives of either (1) obtaining Coastal Zone first and leaving inland areas unprotected until the Coastal specific authority for a CZM Program from the Legislature or (2) carefully Wetland areas are restricted. limiting the scope of the CZM Program to the jurisdiction and authority Page I-6 of the DEIS refers to an "insurgence" of Federal and already conferred by the Legislature to EOEA (without the attempted illegal State money into local communities for projects and for new planning as an assertions of extra authority referred to below in these comments) were "immediate impact" of the Program's policies. This statement is misleading adopted. given the $20,000 maximum limit and maximum one-year funding period per A necessary discussion of the impact of alternatives on inland and project of Federal CZM grant money referred to on page II-5 of the DEIS. out-of-State areas is also missing in the DEIS. The treatment of alternatives in Part IV of the DEIS is incomplete Other State alternatives to the proposed Massachusetts CZM Program and inadequate. Specific alternatives to the 38 proposed policies are not that should be discussed specifically include the designation, by legislation discussed. Separate discussions of a "no-adoption" alternative for each if necessary, of the Massachusetts Executive Office of Communities and policy is not presented. Selective approval of portions of the Program by Development or the Massachusetts Office of State Planning as the lead agency the Federal'Associate Administrator is not discussed. Much emphasis is for CZM authority in Massachusetts. The July 1, 1975 Kaufman report supra placed in Part IV of the DEIS on the assertion that delay caused by a switch at page 141 discusses the possible designation of either of these two to an alternative would be a disadvantage to environmental values. (See agencies. One obvious advantage of designating Communities and Development p. IV-4.) No discussion is given to the delay that could be caused by as the CZM lead agency would be the ability of that agency to encourage its court challenge to the Program as written. Grave doubts as to the authority economic development policies by grants of funds rather than the largely of the EOEA to adopt and enforce a comprehensive CZM Program of the type prohibitory and negative powers of the EOEA agencies. submitted by EOEA have been raised by ourselves and by others. (See Kaufman report referred to below and the other memoranda attached to these comments.) Concern has also been raised over the adequacy and enforceability I 791 -7- ~~~~~~~~~~~~~~~~~~~~~~~-8- D. FAILURE OF THE DEIS TO DESCRIBE ACCURATELY ITHE NATIONAL CZM Program document. Also, the staggering environmental consequences of INTEREST AND CONSISTENCY REQUIREMENTS OF THE COASTAL ZONE MANAGEMENT ACT AS THEY RELATE TO THE MASSACHUSETTS such an interpretation of the Coastal Zone Management Act surely deserve CZM PROGRAM AND THE FAILURE OF THE MASSACHUSETTS CZH PROGRAM TO COMPLY WITH SUCH REQUIREMENTS full treatment in the DEIS. For NOAA to assent to such an interpretation The attached letter with appendix dated October 28, 1977 of in the Massachusetts CZM Plan would create a dangerous NOAA precedent Mr. John J. Kearney, Senior Vice President of EEI, the Edison Electric affecting more than 100 nuclear powerplants awaiting permit and licensing Institute, addressed to Mr. Michael Shapiro, National Programs Office decisions in coastal states nationwide. (See p.4 of Octrber 28, 1977 EEI [Federal] Office of Coastal Zone Management contains the comments of the comments to Shapiro.) The socioeconomic and environmental consequences of electric utility industry to proposed Federal OCZM rulemakings contained such a precedent are ignored in the DEIS both by the Federal OCZM and the in the August 29, 1977 Federal Register (15 C.F.R. 930; 42 Fed. Reg. 43585, EOEA. et seq. "Federal Consistency with Approved Coastal Zone Management Programs Also, as the EET October 28, 1977 comments to Mr. Shapiro clearly .... "). The EEI comments addressed to Mr. Shapiro criticized the draft demonstratest imposition of Federal consistency requirements on applicants Federal OCZM regulations for failure to limit the certification of con- for Federal licenses and permits whose applications were submitted prior to sistency requirement to "new activities" which "directly, significantly and the date of Federal approval of a State's CZM Program is not authorized by the Coastal Zone Management Act. Yet page 1in-14 of the Dica wrongfully adversely" affect "land or water uses in the coastal zone" as required by the Coastal Zone Management Act. Yet page -14 of the DEIs wrongfully the Coastal Zone Management Act and its legislative history. The Massachusetts asserts "the coastal program will need to determine whether this [Pilgrim CZM Program and the DEIS likewise fail to observe this statutorily mandated II nuclear powerplant for which Federal permits are pending] project is limitation. The Massachusetts CZM Program and the DEIS should be amended to state consistent with the program ...". consstronglbet woitheicuonn the Pra' overageo clearly that consistency certification is not intended to be required of either We strongly object to the inclusion in the Plan's coverage of existing facilities or facilities already in the licensing process or under Pilgrim Unit 2, the nuclear plant addition in Plymouth. See p. 111-14 of construction, or applicable to the issuance of operating licenses to facilities DEIS. This Unit has been through thorough extensive Federal, State and already constructed, or indeed to renewals of license and permits already issued. local reviews, e.g., the State Environmental Impact Report has been approved, The illegality under Federal law of the attempt by Maachusetts to apply State and Federal water discharge permits have been issued, the State water- The tllegality under Federal law of the attempt by Massahstsoapy. Federal consistency review to the issuance of Nuclear Regulatory Commission operating permits is discussed in the October 28, 1977 EEI comments to well as Wetlands' orders of conditions. The Advisory Committee on Reactor Mr. Shapiro. Such power is asserted on pages 355 and 356 of the Massachusetts Safeguards has given the project-its approval and the hearings of the Atomic ISO, -9- -10- Safety and Licensing Board are in progress. It is, we submit, inequitable Draft EOSA CZM regulation 7.19 concerning federally permitted to subject this project to CZM consistency review at this stage. In fact, activities occurring outside the coastal zone is inconsistent with NOAA we suggest that, in order to avoid a moratorium on economic development, rules (proposed 5 930.54(b)) and 5 304.1 of the Coastal Zone Management Act. there ought to be a broad "grandfather" clause included in the Plan to It would extend CZH consistency requirements beyond the Coastal Zone without protect all ongoing or planned activities. the requirement of direct, significant and adverse effect on coastal waters. The DEIS is also defective and inadequate in that it fails to See S. Report No. 753, 92d Congress, 2d Session, 1972, U.S. Code Cong. & consider the Program's impact on Federal regulatory agencies and through Ad. News 4776, 4793. Regulation 7.19 also asserts a State CZH power to them its impact on the environment. Even Chapter 6 of Part In, entitled require modifications and changes of actions which is beyond its ability to "The National Interest and Consistency of Federal Actions", fails to contain enforce. any discussion of the relevant specific policies of the Plan as they relate CZn regulation 7.11, concerning information to be required of a to the national interest expressed in specific authorities of identified party seeking approval of its consistency certification, fails to apprise Federal agencies or specific Federal statutes. applicants of their right under the Coastal Zone Management Act and under The mechanism for Federal consistency review of Federal permit NOAA rules (proposed � 930.58) to withhold "confidential and proprietary applicants is outlined at pages 351-357 of the Massachusetts CZH Program. material". At page 351 it is stated that "CZM will develop working arrangements with CZH regulation 7.16 declares in part: ". . .should the EOEA agency federal agencies so that" the outlined objectives can be achieved. Pre- deny the [Statel license or permit pursuant to CZM policies, then the EOEA cisely what those "working arrangements" are or will be, however, is unknown agency shall likewise indicate disagreement with the consistency certificate". especially in light of the uncertain status of the EOEA draft regulations To the extent that a State agency may deny consistency approval by reason -of contained in Appendix A of the Massachusetts CZM Program. an applicant's failure to meet State air or water quality requirements, which According to draft'EOEA CZM regulation 7.23 the State may standards exceed relevant Federal air and water pollution control require- unilaterally amend the list of federally permitted activities subject to ments, CZM regulation 7.16 is itself inconsistent with Coastal Zone Management consistency review by merely giving 30 days' notice of its intention to do Act 55 307(e) and (f) which require incorporation of Federal Water Pollution so. NOAA rules (proposed � 930.55), however, limit the State's ability to Control Act and Clean Air Act requirements "as is" without alteration. refine said list. Such limitations are not reflected in the Plan or in the The criteria to be used to judge consistency certificates for above-mentioned regulations. energy related activities appears at page 355 ("CZM Policy Requirements"). 11 The Plan here recognizes that EFSC has responsibility in the area but pre- of the Federal Energy Regulatory Commission over interstate gas transmission scribes criteria too vague and uncertain to be effective. The criteria here and hydroelectric power contained in the generic statutes of those agencies. established are defective also because as described elsewhere in these comments they would circuitously enforce policies otherwise and elsewhere unlawfully E. THE FEDERAL OFFICE OF COASTAL ZONE MANACEMENT ALREADY HAS DETERMINED THAT THE MASSACHUSETTS CZN PROGRAM IS CONSISTENT established by CZM rather than the policies properly recognizable by EFSC. WITH THE POLICIES OF THE COASTAL ZONE MANAGEMENT ACT. THE FEDERAL OCZM AND THE MASSACHUSETTS EOEA DO NOT INTEND TO CONSIDER SERIOUSLY THE PUBLIC COMMENTS TO THE DEIS AS A The net result of this scheme would be an illegal subdelegation of authority TOOL IN THE DECISION-MING PROCENTSS. TO THE DEIS IS AS AFTER- THE-FACT RATIONALIZATION FOR A DECISION ALREADY MADE At page 351 of the Massachusetts CZM Program it is stated that: Page 11-1 of the DEIS contains the following statement: "The "In cases where state and federal permit or proposed Federal action is approval of the Massachusetts Coastal Zone licensing Jurisdiction is not the same, CZM will use federal consistenyot theo assure that Program. The [Federall Office of Coastal Zone Management initially has federal permits or licenses are issued in accordance with the CZM program. CZM will determined that the program is consistent with the national policy to work with federal agencies to define more precisely how CZH policies will apply to achieve wise use of the coastal zone and the achievement of the many application for such federal licenses or permits." national interests which Federal financial assistance was intended to See also Appendix A, regulation 7.13. The Plan is defective at promote." Also, the "Note to Readers" at the beginning of the DEIS states this point because (1) the mechanics of this procedure for determining in part: Federal consistency are as yet undefined, vague and uncertain, and (2) the "For purposes of reviewing this proposed action, the key questions are: CZN office within EOEA lacks authority to enforce the above scheme. In - whether the Massachusetts program is consistent with tde objectives and policies of the national short, Federal permit activities not already regulated in parallel at the legislation, State level cannot now be subjected to State review and regulation, absent - whether the award of Fedill help Massachusetts to 306 of the Federal Act will help Massachusetts to appropriate action by the State Legislature. Because CZH exists in an meet those objectives, authority vacuum, it is incapable of providing such regulation and review. whether the State management authorities are adequate to implement the State program, and Examples of the lack of enforceability on the State level creating a lack whether there will be a net environmental gain as of a parallel State agency to acquire Federal consistency review authority a result of program approval and implementation. are (1) the exclusive jurisdiction of the Nuclear Regulatory Commission over "The Office of Coastal Zone Management believes the answers to these radiological health and safety matters and (2) the exclusive jurisdiction key questions are affirmative." -14- -13- was submitted well after the state decisions to adopt the CZM Program and See also the attached October 27, 1977 letter of Robert W. Knecht, submit it to the Federal OCZM were made. Acting Associate Administrator for [Federal] Coastal Zone Management which Also, it is improper to confine the decision addressed in the states that December 15, 1977 is a deadline for submittal of amendments to DEIS to the issue of whether Federal approval should be given to the the present draft plan "without jeopardizing the present timetable for Massachusetts CZM Program. In order to fulfill the requirements of MEPA the approval-and full Federal funding under [section] 306 of the CMAn". Yet DEIS should have discussed the environmental and socio-economic consequences December 15, 1977 is also the deadline for submission of comments on the of proposals for the Commonwealth of Massachusetts to adopt and submit the DEIS itselfl. Surely the EOEA will not respond to comments on the DEIS to Massachusetts CZM Program and alternates to it, including alternative lead make substantive changes in the text of the Massachusett CZM Management agencies, and specific alternatives to the 38 policies. The alternatives Program as already submitted if the penalty for such responsiveness is referred to in the DEIS focus on alternatives to the Federal action of a threat of withholding Federal funds. approval of the Massachusetts submission. Only cursory reference is made The second page of the NOTE TO READERS states "The Massachusetts to alternative state actions and these merely in the context of how they Executive Office of Environmental Affairs assures that this environmental relate to the Federal responsibility. statement satisfies the requirements of the Massachusetts Environmental Policy Act". This is grossly incorrect. In certain circumstances a Federal EIS may be disseminated in lieu of a State DEIR. However, the Massachusetts Environmental Policy Act, Mass. General Laws, Chapter 30, at Section 62, requires the preparation and dissemination of an environmental impact report (EIR), similar to a Federal EIS, prior to commencement of state actions which may cause damage to the environment. The MEPA statute and EOEA implementing regulations make it clear that a final EIR must be prepared prior to commencement of the State Action or expenditure of state funds. The EIR, like an EIS, must be a decision making tool, not an after the fact rationalization of a decision already made. The DEIS fails to meet these requirements. The Massachusetts CZM Program was submitted prior to the dissemination of the DEIS, thus the DEIS ItS -15- 46- II. COMMENTS ON INTRODUCTION. PART 1. DEIS environmental concern (it restricts, or assigns priorities to land use in such areas). In addition the Pisa sets up a new office in EOEA with The economic importance of the coastal zone to the residents and alleged powers to control some local decisions, to review permits, to rule economic interests of Massachusetts is properly acknowledged in the intro- on the acceptability of Federal grants, all of which have serious economic ductory paragraph on page 1-1 of the DEIS. It is therefore of the utmost effects. importance that the DEIS adequately describe the environmental and socio- The CZM Plan fails to comply adequately with the "general require- economic impacts of the CZM Plan and also alternatives to the proposals set ments" stated on p. 1-3 of the DEIS. It is impossible, In view of the forth in the Plan so that informed judgments can be made by interested failure of the DEIS to discuss alternatives to specific policies, to individuals. The relevant impacts should be identified, explained and determine whether the Plan is "comprehensive" and provides adequate manage- justified so that judgments can be responsibly formed on the contents of ment of important environmental and economic resources. "All relevant the Plan in terms of its benefits and also its costs to the Commonwealth of interests" have not been consulted, e.g., inland communities. In addition Massachusetts in Its totality. consultation should mean a reasoned consideration of relevant viewpoints, To accomplish this the DE15 and the CZM Plan should contain clear, something which did not occur in the case of business interests. The understandable policies, alternatives thereto, a full description of the absence of regulations (by EOEA and other agencies) also constitutes a lack effects of implementing such policies and alternatives and a reasoned of comprehensiveness and makes it impossible to analyze and comment adequately justification for the selected alternative. Unfortunately, the DEIS fails on Federal consistency requirements and the meaning of many policies. to fulfill these important tasks, as is more fully explained in these The DEIS and the Plan fail almost entirely to meet the second comments. Furthermore, as is pointed out elsewhere, the DEIS and CZM Plan requirement on p. 1-3; the policies, standards, objectives and criteria are in major respects unauthorized by Massachusetts law and fail to comply upon which decisions are to be based are not "articulated clearly" and are with Federal requirements for approval of the program. not "sufficiently specific" to provide a "clear understanding of the content Two inaccuracies on page 1-1 of the DEIS must be pointed outt of the program, especially in identifying who will be affected and how", nor a) Item #8 misstates the provisions of the Plan since the Plan does more does the program provide a "clear sense of direction and predictability for than "consider" non-structural solutions for coastal erosion problems (the decision makers". This is especially so since COLA and agency regulations Plan indicates a decided preference for such solutions); and b) Item #9 is have not even been officially proposed for adoption in the Plan. incorrect in that the Plan does more than identify areas of critical The final requirement is not met since there are not in the Plan "sufficient policies of an enforceable nature". -See our legal comments herein. -17- -18- There is no clear understanding as to what is the content of the Management program is designed to rely exclusively on existing laws and on program. The CZM Director has stated that we are subject only to the administrative arrangements to coordinate State level reviews and permits, regulations. But the present written regulations reference the entire two it is vital to the success of the program that coastal communities revise volumes. We are told this has been deleted, but there is nothing in writing local priorities, zoning by-laws, subdivision regulations, design controls, to this effect. We have been told by the CZM staff that the regulation will economic development efforts, etc., to conform to this re-combined process be re-written; we do not know what the content of the new regulation will be. of the Coastal Zone Management Plan. The active leadership of local officials We have been told by the CZM Director that Massachusetts is re-writing the will determine the ultimate fate of the Plan" (underlining added). This CZH document and cutting it down to half size; we do not know what is being same assertion of local primacy is also acknowledged at DEIS, p. VI-1: deleted and/or changed. In a word, we do not have a clear idea of the "Thus, under the Massachusetts CZM Program, local governments will continue content of the program. to have sole responsibility for a very wide range of land use decisions and In reference to the "Consistency" powers as discussed on p. 1-4, broad areas of the coastal zone." The CZM Plan and the DEIS fail to resolve it should be acknowledged in the DEIS that if Massachusetts law does not this contradiction between the alleged "prime" responsibility of state confer actual licensing authority on an agency for specific issues under government and the alleged "sole" responsibility of local governments. consideration, e.g., for land use controls as in Policy 17, then the mere approval of the CZM Plan by OCZH in Washington cannot confer such powers on the State agency. In other words it should be made clear that federal consistency does not apply to state agency actions which are not indepen- dently authorized by State Law. There are inconsistencies between the Plan and other State programs. According to page 1-2 of the DEIS, it is stated that "The State level of government has prime responsibility for achieving 'effective management, beneficial use, protection, and development of the coastal zone"' (under- lining added). However, p. 75 of the just-issued official state document, the Massachusetts Growth Policy Report, recognizes that implementation of land use is the prime responsibility of local officials: "Since the Coastal Zone Iis' -20- -19- III. COMMENTS ON TABLE OF COASTAL ZONE 1MANAGEMENT process. Before the public and Federal OCZM can have adequate information ACT AUTHORITIES FOLLOWING PACE I-4 OF DEIS: THE MASSACHUSETTS COASTAL ZONE MANAGEMENT upon which to judge the true environmental and socioeconomic impact of PROGRAM FAILS TO CONFORM TO THE REQUIREMENTS OF SECTION 306 OF THE COASTAL ZONE MANAGEMENT the Massachusetts Coastal Zone Management Program, especially the full ACT. ACT. extent of the asserted authority and jurisdiction of EOEA, its agencies, and other agencies in the plan, full implementing regulations of EOEA and Part I of the DEIS presents a gross oversimplification of the each agency tested by public participation in the M.G.L. Ch. 30A process, criteria contained in Section 306 of the Coastal Zone Management Act and should be adopted and in place. in 15 CFR Part 923 for the approval of State Coastal Zone Management Programs. It wrongfully states that the Massachusetts Coastal Zone The State has not fulfilled the requirement of coordination of Management Program was prepared pursuant to the Statute (P. I-2) and the CZM Program with other local, areawide and interstate plans as required meets the specific requirements of Section 306 of the Act and 15 CFR by Section 306(c)(2) of the Act. Massachusetts Coastal Zone Management Part 923 of Federal OCZM Regulations. (Page 1-5) Program document at Appendix D, Pg. d-4, reveals conflicts with local zoning laws that are not adequately discussed in the DEIS. The same is The Massachusetts Coastal Zone Management Program fails to meet true for conflicts with Water Quality basin plans discussed on Pg. d-6 of the requirements of Section 306(c)(1) of the Act in that it has not been Appendix D. In Appendices B, C, and D of the Massachusetts Coastal Zone "adopted". The legislature has not adopted it or given the Secretary of Management Program document references are made to meetings with members EOEA authority to adopt it with the full assertion of powers and authorities of various local government entities,'i local conservation commissions, contained within the Program. The opportunity for formal public input ........-^<~~ -- ., ...........~~~~ ~ ,selectmen, etc. However, it is not clear from the text liow many of these through notice and hearing procedures required by M.G.L. Ch. 30A for the contacts olved fficial actions by these local oardsy ote f heir adoption of generally applicable regulations with the force of law has members endorsing or otherwise evidencing their approval of the final CZM not taken place for the implementing regulations of the EOEA agencies Program as submitted to Federal OCZM. and other agencies. Even the draft EOEA regulations in the Appendix to the Massachusetts Coastal Zone Management Program are mere drafts, nots and supporing - ..... For reasons :s-tated elsewhere in these commsents and supporting formal proposals subject to the M.G.L. Ch. 30A, public notice and hearing memoranda, it is evident that the Massachusetts CoastalZone Management -22- -21- assert powers referred to in Section 306(d)(l)(C) of the CZM Act would fail. Programs fails to fulfill the requirements of Sections 306(c)(6), (7), (8), The EOEA, in fact no State executive agency, has power to review all local and (9), and 306 (d)(1). Authority to acquire interests in land by condemna- land and water use regulations with power to disapprove for consistency with tion in Massachusetts is limited to the purposes established in the various a Coastal Zone Management Program. eminent domain enabling acts applicable to the State agencies which have The Massachusetts Coastal Zone Management Program fails to contain eminent domain or other property acquisition powers. Whether such eminent an adequate method of assuring that local land and water use regulations domain powers are satisfactory under Section 306(d)(2) of the statute is not within the coastal zone do not unreasonably restrict or exclude land and adequately discussed in the DEIS, Pages II 35-41. The Massachusetts Coastal water uses of regional benefit. (Section 306(e)(2) of the Coastal Zone Zone Management Program fails to provide any of the alternative general Management Act.) A discussion of what areas of the coast are to be still techniques for control of land and water uses within the coastal zone left open specifically for energy uses, defense uses and other national and required by Section 306(e) of the Coastal Zone Management Act. As stated in regional uses should be provided, taking into account the special siting the detailed comments on each of the policies contained in the Massachusetts requirements and impacts of each type use and relating them to sections of Coastal Zone Management Program and in the discussion in these comments and the coast where such requirements are met and such impacts are acceptable. supporting memoranda concerning the legal authorities of EOEA, the Secretary Without such an analysis there is no assurance that the Program will leave of EOEA generally cannot establish "criteria and standards of local imple- enough area for each such use to be accommodated. mentation, subject to administrative review and enforcement of compliance". In light of the above discussion, it can be readily seen that the (CZM Act Section 306(e)(1)(A).) In limited circumstances, certain EOEA description in the table on Pg- 1-5 of the DEIS (and Sections of the DEIS agencies can intervene in local regulatory functions, such as under the and Program document referenced therein) of compliance with Section 306 of Wetlands Protection Law. However, in Massachusetts, local land use zoning the Act and 15 CFR Part 923 of the regulations is incorrect in that it decisions are not reviewed or subjected to change except for very limited depends upon assertions of authority and jurisdiction by EOEA on behalf of purposes by State agencies. The State CZM Program in asserting powers of itself and its line agencies that go beyond that contained in Massachusetts direct state land use planning overreaches the statutory powers of EOEA, law. The description of compliance with federal program requirements in and its agencies, contained in their enabling statutes and the purely the DEIS references the following portions of the Program whch we assert ladk advisory nature of their involvement in land use planning in Ch. 21A Section adequate foundation in state law: the overall summary of the land use scheme 2. Thus, the Massachusetts Coastal Zoning Management Program does not comply on pages II-1 and 2 of the DEIS where problems concerning alleged basic land use with Section 306(e)(1)(B) of the CZM Act. Likewise, any attempt by EOEA to planning powers are not asserted; the description of land and water uses to be -23- -24- managed; the guidelines on priority of uses; the ability of EOEA to The discussion of public hearings on Pgs. 6-19 and Appendix B of enforce its desires in Areas of Particular Concern and Areas of Preservation the Massachusetts Coastal Zone Management Program Document and the discussion and Restoration; the means of exerting State control over land and water of participation by "relevant bodies" in Appendix B and on Pg. II-67 and 68 uses in Pages 11-35-41 of the DEIS; organizational structure for implemen- of the DEIS show an apparent proclivity for small informal meetings with tation; and the authorities to administer land and water use and to control preselected groups prior to the compilation of the Program Document for development and resolve conflicts all as discussed in the text of the Submittal to Federal OCZH. Of course such meetings are invaluable in obtain- Massachusetts Coastal Zone Management Program document and DEIS referral ing data but they do not substitute for the highly publicized and open to same on Pg. 1-5. nature of legislative hearings on the adoption of major statutes or the The deficiencies of the Massachusetts Coastal Zone Management formal notice requirements of hearings on regulations under H.G.L. Ch. 30A. Program Document and DEIS with respect to boundaries are discussed elsewhere Concerning the Governor's review and approval of the Massachusetts in these comments and in the May 5, 1977 memorandum of Mr. Gengler. In Coastal Zoning Hanagement Program Document, the DEIS refers to the Governor's general the boundaries are vague and include too much area. In many places letter in the Program document. However, no reference is made to any letter they are not readily discernible from a map or description of streets and or certification of the Governor concerning the October 7, 1977 Addendum. roads or other readily identifiable criteria. The failures of the Massachusetts Coastal Zone Management Program Document and DEIS to adequately provide for and discuss the national interest in the siting of facilities, including energy facilities, is described elsewhere in these comments. The same is true for the impact of the Program and DEIS discussion on local regulations and uses of regional benefit, shorefront access planning, energy facility planning, shoreline erosion, and applicability of Air and Water Pollution Control Requests (this last in the discussion of Federal consistency). Authoriities for property acquisition, techniques for control of land and water uses, and consultation and coordination with other planning activites have been discussed in this section of comments. -25- -26- 1V. CO~MMENTS ON PART 1I, CHAPTER I, OF DEIS . concerns, economic issues, and the jeopardy created by the regulations to effectuate the Plan. A. PART II, CHAP TER 1, OVERVIEW In addition to the vagueness and inaccurate description of the zone's boundaries, the DEIS fails to present or discuss alternatives to the to state'if any alternatives to the Massachusetts CZM program were considered zone boundary. The DEIS provides no guidance as to why this arbitrary line (or proposed by the Commonwealth). Although the CZM Plan is a state proposal was drawn. The obvious example of this arbitrary design is the inclusion for funding; it seeks to effectuate federal law and regulation. The of Cape Cod and the exclusion of the internal portion of Cape Ann. federal office responsible for the DEIS has an affirmative duty to describe how the "Plan" was chosen for federal action, over other alternatives that C. OVERVIEW, B (p. II-1) might have been available. The DEIS fails to describe accurately the scope of powers that affect coastal development. While it is true that no new laws were enacted respecting the coastal zone, the adoption of the CZM Plan as regulation B. OVERVIEW A (p. II-1) The wording of "A" inaccurately and vaguely describes the zone. (see, CZM Plan, Appendix A, p. a) presumes to create new standards for exist- The question "what is the Coastal Zone?" is not answered, This question ing laws. Assuming the Secretary of Environmental Affairs has some statutory supposes a natural description, not a legal answer as presented. The authority to adopt these regulations, there is no expression or citation of question should be "Where is the Coastal Zone ot iassachusetts"? In spite leegislative intent to adopt policies directing growth. For example, general of this inaccurate title for the descripti~n, the vording does not tell the development is encouraged to locate in already developed areas. Isn't this reader where the zone is. the imposition of a new "standard" or "direction" for existing laws? Where Thie reader is not sure if the map controls the boundary of the are the references in legislative actions for directing development? The zone, or if the written description of major roads controls. This is Massachusetts Legislature has rejected a number of proposals for land-use critical to the understanding of the scope of the Plan. The Plan in the laws. Does the CZH Plan presume to implement a land-use scheme that dis- draft regulations states that the zone includes certain natural features -- regards the Massachusetts Legislature? that the zone's boundary will in effect self-expand as the situation calls for (see Plan pp. a-3, ss 7.10 and 7.19). The DEIS fails to describe this expansion, or to realize the effects this expansion will have on ecological I ~� -27- -28- In the discussion of "permitted" development, the DEIS inaccurately On page 11-4 at (b) of the DEIS, there is a discussion of economic describes the options available to local governments. It appears that if areas. Although the Plan advocates development in certain places, there Is state permits are obtained, all other restrictions are of local concern. no discussion of incentives. In fact, this description of the DEIS really The Plan, however, applies the federal consistency provisions of the uses regulatory restrictions to achieve the goals of the Plan. It is mis- CZH Act. Thus, the Plan can control federal funding and federal permits. leading to suggest that directing sewer lines and using restrictions are It is inaccurate to state that local governments will continue to decide on incentives. issues of industry, commerce, and housing. In addition, this portion of the On page 11-4 in (c) the DEIS incorrectly implies that the DEIS states that incentives will be utilized for control over loss of Massachusetts CMZM Office under the Massachusetts Environmental Policy Act community character. What are these incentives? Where in the Plan are they (MEPA) can legally condition actions that might adversely affect recreation presented? In the final analysis, control is exercised through federal areas. While Section 61 of MEPA exhorts state agencies to minimize environ- consistency by the enforceable policies (only the enforceable ones). The mental damage to parks, MEPA does not give CZM authority to establish new Legislature has not granted the Secretary the power to interfere with funding standards under existing laws. applications to enforce the CZM Plan. This portion of the DEIS, describing specific areas in the remainder The DEIS on page 11-3, (2) discusses the areas not subject to the of the zone does not present any analysis of where development may go if Restriction Act. This paragraph presents a bias -- it suggests that the restricted within the zone. There is no description or economic impacts Wetlands of Massachusetts, along the Coast, will be viewed on the first on pages 11-3, 11-4, 11-5, and 11-6. While MrPA exhorts state agencies to level as protected by the Protection Act and then on a secondary level by minimize change to the environment, the agency can only look to its specific the Wetlands Restriction Act. This view is not correct. The Legislature regulatory powers and not beyond those specifically granted by the Legislature. created two laws -- Protection and Restriction Acts. This scheme presupposes two systems of-protection -- one is not a first level introduction to the second. The DEIS on page 11-5 states that the CZM Plan will use federal OMMENTS ON PART 11, CHAPTER 2, OF DEIS waste water treatment funds to encourage development into already developed A. MARINE ENVIRONMENT POLICIES areas. This runs counter to Section 208 of the Public Law 92-500. Within this program a public participation structure and planning process was The Marine Environment Chapter of the Plan recognizes the environmental importance of coastal resources. However, neither the DEIS created to develop policies. Section 208 and CZM may conflict. Who resolves these conflicts? Why continue 208 planning in coastal areas, if the decisions nor the Plan adequately considers the economic and social effects of using these conflicts? Why continue 208 planning in coastal areas, if the decisions or not using these resources. All too often the Plan and the policies are have already been made by CZM? On page II-6, there is a statement (d) that a project regardless of concerned with the allegedly negative impacts of the activities described its location may be reviewed against the CZM Plan. What is this scope? Is in this section of the Plan, and do not attempt to analyze the benefits and it the entire State? What types of development are controlled by air and the costs of various proposals and alternatives thereto which would permit the use of these resources. The absence of regulations by EOEA or the water quality reviews? The final paragraph on page 11-6 grossly understates the potential agencies make meaningful comment impossible. power of the CZM Plan. Community character and land-uses are very definitely On pages 60 and 61 of the Plan, the discussion of "Power lant affected by the CZM Plan. The powers of federal consistency affect local Siting", the folloiwing changes are suggested. The word "localized" should be inserted after the first word of the first paragraph. It should be made character. The DEIS is silent on the possible conflicts and the interaction of priority marine-dependent uses and local zoning controls. They do not clear in the third paragraph that juvenile migration of fish is not dependent on temperature alone. The first full sentence on page 61 should be documented always coincide. The overview section should be expanded to include a discussion since it is believed to overstate the effect of temperature on fish migration. Of program funding. A discussion of how the grant application for CZM It should be noted that in almost every case other fish migration routes remain open. funding proposes to expend the federal funds will provide insight into the priorities established by the Massachusetts Office of Coastal Zone Management. On p. 69 the discussion of recreational boating should include a discussion of the impacts of the chronic deposition and leaching of toxic anti-fouling coatings from boat bottoms and a comparison should be made of the volume of these toxins with toxins from other sources such as industrial point sources or from residential sewage disposal systems. -32- -31- as set forth in the Plan. Such determinations must be made on a case- On page 71 the discussion of dredging and dredge disposal should by-case basis and cannot be prescribed by prior regulation. Nor, consider and discuss the benefits and importance of dredging and compare the legalities aside, is it wise to do so since it is not possible to economic and social effects to environmental impacts. It should be emphasized decide in advance on suitable uses because of the variety and that the environmental effects of dredging are generally localized. complexity of the issues in cases which will arise. This is one We offer the following comments on the policies and their accompany- advantage of the present system employed by the Department of Environ- mental Management which has model orders of restriction but leaves (1) POL~ICN . final decisions open until the processes of consultation and hearings The word "conserve" is unclear as a regulatory directive to have been concluded. agencies or as guidance to developers. There is no discussion of The effects of the permitted and prohibited uses on page 80 to 83 alternatives to this policy or the impacts of such alternatives, of the Plan are not analyzed with alternatives thereto. The social including the "no action" alternative and the effects of and economic impacts are not set forth. In particular the effects of policy on non-coastal areas if activities take place inland because policy on non-coastal areas f activities take place inland because new paragraph N, inserted by the Addendum on page 83 of the Plan are of this and other policies in this section. not identified. What precisely is the amount and location of coastal Even though it is asserted that no uses are prohibited a Eprori Even thugh it is asserted that n uses are prhibited land and waters removed from possible use by this provision? under the Wetlands Protection Act, it appears that the Commissioner of The effect of paragraph "N" on page 83 is also nullified by the DEQE is bound by memorandum to carry out and implement the Plan. This paragraph "C" on page 83 which would prevent discharges from industrial would presumably mean that he is bound in advance to protect those parts facilities or power plants. The Plan should not proscribe any dis- of the coast listed under this policy (as well as under Policy 2) by charges of any sort if such discharges are licenseable under federal means of the Commissioner's authority to issue Superseding Ord state water pollution control laws. Condition and that this will be done in a manner consistent with this The imposition of the proposed restrictions on "all" beaches of policy. The intended use of CZM Coordinators in the agencies reinforce the Commonwealth should be analyzed and justified. this interpretation of the Plan's meaning. This is not authorized by law. The top paragraph on page 85 presupposes the outcome of the work The Wetlands Restriction Act does not authorize the establishment of the Wetlands Program Review Board. Yet that Board is still involved of a pre-determined system of permissible or priority land use controls in its studiesa proposals for changes in the Wetlands laws and -33- regulations have not even been produced by the board, much less by the on page 88 which is almost limitless in its scope. The authorities agency for public review. Is DEQE to have or not have discretion to cited do not provide for the imposition of permit conditions on prepare and eventually promulgate the contents of its regulations in activities as indicated therein. these matters? The meaning of "minimize adverse impact" is unclear; it is also The proposal on page 86 of the Plan for a Memorandum of Under- unwise as a policy since it does not call for a balancing by the standing between DEQE and the Department of Fisheries, Wildlife and decision maker of all relevant factors. Recreational Vehicles is not a legally proper method of incorporating Alternatives to this Policy should be presented and their social, marine resource concerns in a manner which will bind parties in a permit economic and environmental impacts analyzed. The effects of trans- proceeding. The terms of such understandings should also be available ferring impacts to other coastal zone or inland areas should be in the DEIS for review and comment. discussed. The Division of Water Pollution Control cannot legally agree, as The CZM Plan does not explain the methodology used to determine indicated on page 86, not to issue certificates or licenses for activities which rivers or streams were designated anadromous fish runs. prohibited by this Policy in SRA's. DWPC must grant permits if its laws The footnote on page 88 places the burden of proof on an applicant and regulations are complied with. Where is this MOU and what are its to seek a variance or exemption. There is no basis for such a require- contents? ment since the permit statutes regulate such matters. On page 86 the description of the Ocean Sanctuaries Act is not The Energy Facilities Siting Council did not, as stated on p. 89 accurate since this Act affects only certain types of activities and elsewhere, agree in its Memorandum of Understanding not to site described in the Act. energy facilities in APR's. It agreed to give "prime consideration" (2) POLICY 2. to environmental impacts in critical areas of environmental concern This policy is subject to the legal defects on land use control (which is itself a legally invalid agreement). discussed in Policy I and elsewhere in these comments. Our commnents regarding the role of DWPC under Policy 1 apply also The word "protect" is unclear in its meaning and does not provide to the bottom paragraph on p. 89. meaningful guidance as a directive. The word "impacting" is also (3) POLICY 3. unclear and is indeterminate as to the geographical extent of its Policy 3 in requiring the "highest level" of water quality in application. This uncertainty is compounded by the bottom paragraph certain areas infringes on the responsibilities of DWPC. It is also -35- -36- an unwise policy since such standards should be the result of a balancing (listed on page 11-10 of the DEIS) are overly broad and stated in almost of all relevant factors and this can only be decided on a case-by-case absolute terms. Alternatives, with a comparative analysis of benefits basis as water bodies are studied. and costs, ought to be discussed. Such a discussion should include, The meaning of the word "ensure" is unclear. among other relevant matters, an analysis of the effect of this policy The state CZM office has no authority to review NPDES permits and permit renewals (see p. 90 of Plan). These are the responsibility of on d evelope r and also n local communities. DWPC and EPA. It Is alsounwisetoequiresucareviewineIt is unclear how CZH can legally control (we believe that it DWPC and EPA. It is also unwise to require such a review since this would be another added layer of procedural review, i.e., another hurdle for business interests and an unwarranted and unjustified duplication of etc. as indicated on page 11-10 of the DEIS. The stated criteria are for business interests and an unwarranted and unjustified duplication of set forth in absolute terms without an analysis of social, economic or governmental activities. environmental impacts and alternatives thereto. It should be noted on page 90 of the Plan that the 1985 goal of elmininating discharges into navigable waters is not intended to be (5) PLICY . This policy is unclear in the meaning of the words "ensure" and enforceable in the permit program which has its own requirements "minimize adverse effects". As mentioned earlier, the need for and established by this same law. benefits of dredging are not recognized and this policy should be Does the second paragraph from the bottom of page 93 of the Plan presented with a discussion of alternatives and their impacts. mean CZM is monitoring and coordinating the 208 program all over the statet? ,The minimization of adverse impacts is also an unwise policy since a balancing of relevant factors should be required for decision making. On page 92 there is no justification for recommending changes in the Title V code. It Is not stated what standards or changes are being It should be pointed out on pages 98-99 of the Plan that the state proposed, and this should be done in the 0st1 with or of reg beins will not have authority under the Plan over dredging and the transporta- proposed, and tis should be done in the DEIS with a set of regulations and as an analysis of alternatives with their impacts so that comments tion and disposal of dredged materials unless state la itself cnfers can be made, jurisdiction over such matters. (4) POLICY 4. (6) POLICY 6. Tfiis policy is unclear in the meaning of the words "Condition" and This policy is not justified by any discussion of impacts or This policy is unclear in the meaning of the words "condition" and "minimize interference". The three criteria for solid fill piers, etc. alternatives. It is too absolute as a prohibition of activities which "minimize interference". The three criteria for solid fill piers, etc. are of economic importance to Massachusetts. -37- -38- (7) POLICY 7. retarded or prevented. The risk that adverse economic impacts could take Are we correct in assuming that this policy does not create new place if Massachusetts is more restrictive than other states should be standards for licensing activities? discussed. B. COASTAL HAZARDS POLICIES. PAGE II - 11 OF DEIS One alternative that should be fully analyzed and presented is the The basic assumption of much of the Chapter of Coastal Hazards option of having no preference for or against structural solutions, but to that nonstructural solutions are to be preferred is not adequately justified allow the determinations to be made by the permit granting authority on a in the DEIS or the Plan. It is not enough to say (as on p. 110 of the Plan) case-by-case basis in the light of evidence presented to it. that structural solutions are "becoming increasingly recognized" as expensive Another alternative that deserves examination is the option of short-term solutions which exacerbate problems elsewhere along the coast. establishing measures to improve the existing programs of the Corps of Nor is the use of the word "significant" as in the second paragraph on p. 111 Engineers, the Waterways Division and the Metropolitan District Commission of the Plan by itself enough to describe the extent of the problem against to avoid the alleged past problems discussed on p. 115 of the Plan. It may which the effectiveness of proposed solutions can be measured. Nor is there be possible to obtain economically desirable results and avoid or mitigate any justification set forth to support the establishment by Massachusetts adverse environmental impacts by revising agency programs. Perhaps CZM of programs stronger than those of the National Flood Insurance Program, should put money into such an effort. Neither the DEIS nor the Plan adequately identify the scope of Another option would be the implementation of the National Flood the problem in Massachusetts. In fact footnote #7 on p. 129 of the Plan Insurance Protection Program (see p. 115 of the Plan) coupled with better indicates a lack of scientific data on this subject in Massachusetts. funded agencies to review or implement proposed structural solutions. Alternative solutions are not offered for erosion problems, nor are the Here again the absence of regulations by EOEA or the agencies makes environmental, social or economic impacts of the policies or alternatives adequate comment impossible. Nevertheless, the following comments are set forth so that the reader can make an informed judgment regarding the offered on the coastal hazard policies. feasibility or desirability of mitigating measures, It is not possible to (1) POLICY 8. measure the benefits and costs of the policies due to the lack of information The introductory sentence is vague and unclear as a directive on the problem and the offered solutions. Such a drastic change from past to regulatory agencies or as guidance to a private party. The word practices in Massachusetts deserves a more complete discussion and "discourage" provides no meaningful standard for action; the word justification lest economic or residential development be needlessly "hazardous" is unclear and undefined; and the words "preserve natural Iqa- -40- buffer" are vague and uncertain. There is no "clear sense of direction (3) POLICY I and predictability" in this policy. Is it right to assume that land owners will be compensated on the Sub-part (a) is illegal since it is meant to establish a predeter- basis of the fair market value of their land? How much will this cost mined system of permissible or priority land use controls. The and where are the funds to come from? Is there assurance such funds indication on p. 120 of the Plan that DEQE will carry out this policy will be available? by superseding orders is also unauthorized by law. Economic impacts and (4) POLICY 11. alternative actions are not described in the DEIS. The impact of future This to a clear instance of a policy In which at least one de~~~~~~~~~~~~~~~~~~~~~~~~~hsignaclationsac of anZne shouldicy analzd Seec at 121s ofnte designation of V and E Zones should be analyzed. See p. 121 of the alternative should be presented, namely the use of funding and technical October 7, 1977, Addendum to the Plan. assistance to implement structural solutions. The public must have Sub-part (b) is illegal because it would wrongfully apply the reasonable assurance that responsible cost effective measures are being Wetlands laws to contiguous upland areas and because it calls for an undertaken or required by agencies. examination of the appropriateness of "proposed uses and activities". (5) POLICY 12. This is not a legally justifiable standard for agency action, and to This policy, as indicated previously, Is unduly biased against void for vagueness if it is meant to guide agency decisions. The word structural solutions and meaningful alternatives are not discussed. "condition" is also unclear and Its meaning should be spelled out. In Sub-part (a), the meaning of widespread public benefits and *mSub-part (c). The word "ensure" is unclear. Potential meas minimal adverse environmental effects" is unclear and should be clearly such ensurance and their impacts with alternatives should be delineated. delineated. The policy of Massachusetts should not be to require (2) POLICY 9. "minimal" adverse environmental effects; it should be to make a reasoned it is unclear what the word "ensure" means and what this policy decision after considering all relevant factors, Including economic does to the relationship of the Executive Office of Environmental Affairs considerations. If read literally, this policy could constitute an and othes state and federal agencies. The accompanying text on p. 122 outright prohibition against structural solutions. In Sub-part (b), of the Plan indicates that at least one purpose of this policy is to the policy stated is legally unenforceable because the Wetlands Protection prevent growth in certain areas; therefore the social and economic Act and other cited legal authorities do not prohibit, or require the impacts with reasonable alternatives should be set forth and analyzed. prohibition of, structural solutions in every instance where there Is an adverse effect on adjacent properties or down coast areas. -41- design, operation and licensing decision making and only to the extent that In sub-part (b) the terms' "adjacent properties" and "down coast the decision making agency has authority to do so. The aesthetic criterion areas" are too vague and general to be used in measuring impacts of alone cannot be allowed to kill any major development or expansion project. structural solutions. The social and economic consequences of the Plan are not The text on page 11-13 explaining when Policy 12 a will be identified or discussed. For example, while page 140 of the Plan properly implemented is unclear. For example, what is the meaning of words recognizes that energy facilities and marine terminals are part of the such as "cost prohibitive", "ineffective", "legally infeasible", coastal "scene", there is no explanation of the costs or benefits of the "greater than local significance", "substantial public benefit", subsequent recommendation (p. 141) for improving visual access. The Plan "seriously impair", "adversely affect", and "down coast areas"? and DEIS .should discuss the social and environmental and economic effects These should be explained and alternatives to the stated criteria of the recommendations on pages 142 and 143 of the Plan. This is especially should also be discussed. The text of p. 127 of the Plan is also necessary in view of the admittedly intangible nature of the visual vague. What are "extreme circumstances"? environment. Although the absence of regulations by EOEA and other agencies C. VISUAL ENVIRONMENT. PACE 11-13 OF DEIS again makes adequate comment impossible, the following conments are offered Visual concerns are a legitimate matter of public interest. on the policies: However, one major concern we have with the Plan is that strict criteria Policies 13 through 16 express the "visual concerns" of the CM and enforcement mechanisms are erected such that the aesthetic question Program. Of this group only Policy 14 is listed as "enforceable" in the carries a weight disproportionate to its real importance in siting and DEIS. However, the text of the implementation sections of Policy 13 and 16 licensing decisions. The aesthetic factor is set forth as a matter so and page 5 of the Massachusetts CZH Program Addendum as it relates to Policy important in the site selection and licensing process that sites wghich 15, all refer to State regulatory and permitting programs which restrict have attractive environmental and economic characteristics could be private activities as being subject to these policies. The designation of rejected. If the state fully implements its CZM Plan with its lack of these policies as "unenforceable" is grossly misleading. They are fully balance in this matter, this will have an adverse impact on site selection intended to restrict private development. and licensing of new facilities, on the operation of all facilities, and The confusion as to what is "enforceable", what is not "enforceable", on the expansion of existing facilities. Aesthetic consideration is merely and the impact of "unenforceable" policies on Federal consistency requirements one factor which should be weighed along with others in site selection, -44- -43- All references to private projects subject to State or Federal permits is treated elsewhere in this discussion. However the broad generality of should be eliminated. In addition the meaning of the words "minimizes language of the Massachusetts CZM Program, the mixing of functions appropriate adverse impact" is vague and unclear. The words are also unwise state to governmental proprietary land management with the separate regulatory policy since there should be a balancing of other relevant factors in functions of government, and the bootstrapping use of MEPA and the Federal decision making. consistency process are especially evident in Policies 13 through 16. The DEIS fails to recognize a major error in the Massachusetts (1) POLICY 13. Coastal Zone Plan which states on page 142 that lot sizes for residential This would "encourage" the incorporation of "visual concerns" for construction are decreasing. Since this statement provides both a "all facilities" (not just government facilities) in the coastal zone. major basis and rationale for the aims and goals of this policy, this Page 146 of the Massachusetts CZM Program states that "major developments oversight is critical. in APR's which require federal permits (e.g., a radio tower proposed for The DEIS fails to treat the subject of what tile long and short construction in a tidal water body or salt marsh)" will be reviewed term effects of highly subjective (personal taste) standards will be under Policy 13 to "ensure" compliance. This requirement for Federal on activity in the coastal zone. permit review (presumably under Federal consistency provisions) will be The alternative of excluding this clearly subjective, unenforceable required even though most private projects not requiring Federal permits policy from the Plan is not considered. will be exempt (see p. 146, Massachusetts CZM Program). Massachusetts The DEIS fails to recognize that small projects may be determined CM Program cannot require Federal review when it cannot enforce State to have a cumulative impact and hence environmental impact reports may review. be required for groups of unrelated small projects with different owners, Even for those few State-level permits that are brought under time tables and degrees of effect. The social, economic and environ- Policy 13 the EOFA contact will be merely through the NEPA process, mental effects of this should be analyzed. a process which leaves the basic permit decision, and criteria for No adequate authority is cited, nor is any adequate economic, legal, decision, up to the permit-granting agency, not EoFA. EOEA can social or environmental justification provided, for the statement on ensure full discussion of environmental issues under MEPA, but FIEPA page 147 of the Plan that "utility systems should be placed underground". grants no veto or approval power over any permit decisions to EOEA. Policy 13 should be amended to elminate the word "ensure" from the text of the policy and the discussion and implementation language. -46- -45- report. MEPA does not confer jurisdiction over agencies to consider (2) POLICIES 14 6 15. broad visual impacts of activities and uses permitted by them. These Iare examples of the confusion as to what is enforceable in M.G.L. c. 30 � 61 merely requires State agencies to "use all practicable the Program. Agencies acting pursuant to Policy 14 would review the means and measures to minimize damage to the environment". The term visual impact of proposed development near designated or registered "damage to the environment" is defined in M.G.L. c. 30 � 61 as including historic sites. The text of Policy 14 specifically includes private "destruction of. . .open spaces, natural areas, parks, or historic actions which require State permits as within the scope of Policy 14. districts or sites" not some sort of vague impact "near" such sites. However the Implementation Section of the CZM Program document on pages Likewise, M.G.L. c. 30 � 62 confines the scope of environmental impact 151 and 152 does not list any enforceable State law which gives any State reports prepared by permit granting agencies to the subject matter agency control over visual aspects of private projects which are merely jurisdiction of the agency. near, rather than in historic districts. Reference is made on page 150 Once again we point out that in Policy 14 the meaning of the words to an asserted power of the Massachusetts Historical Commission and "ensure", "near", and "minimize potential adverse impacts" are vague Massachusetts CZM to deny Federal consistency determinations to Federal and unclear. The latter term is also unwise since a balancing of or Federally permitted projects which would "harm. . .historic relevant factors ought to be required in decision making. The applica- qualities" or be merely deemed "eligible" for the National Register of tion of this policy on p. 150 of the Plan to properties "deemed eligible" Historic Places. The Massachusetts Historic Commision does not have to be declared historic sites is a vague, unclear and open-ended asser- these broad powers on the State level, then how can it exercise them tion of governmental power, the implication of which should be against Federal agencies? identified and analyzed. Reference is made on page 152 to the Massachusetts Environmental Policy 15, which refers to improving visual access in urban areas Policy Act (MEPA), in M.G.L. c. 30 �� 61 and 62, as involving some and providing visibility to coastal activities is not listed in the kind of visual review of projects. However the text is not clear Draft Environmental Impact Statement (DEIS) as an "enforceabie 'policy. whether MEPA visual impact concerns are to he applied to private Yet on page 5 of the Oc'tober 7, 1977 Addendum to the Massachusetts CZM projects or only to government projects. If MEPA visual concerns Program document the statement is made that the'Massachusetts Ene'rgy are to be applied to private projects then such concerns should not Facilities Siting Council wili 'use' Policy 15 and tit Policy i5wiil be enforced if they are outside the subject matter jurisdiction of be "applicable" to the Massachusetts Energy Facilities Siting Council the State agency which prepares the relevant MEPA environmental impact I gil -4?- -48- in carrying out its statutory charge to provide a necessary energy Likewise the procedural steps required Eor implementation of the supply with minimum environmental impact at the lowest cost. If this Scenic Roads Act and outdoor Advertising Control Board activities and policy is not "enforceable" how can the Massachusetts Energy Facilities the independent powers of the implementing agencies are not adequately Siting Council "use" it in carrying\out its statutory duty of approving discussed on pages 155 and 156 of the Massachusetts CZM Program and or denying a facility proposed by an energy company? If they do deny an corresponding sections of Chapter 2 of the DEIS. energy company the right to build a facility solely. on the gdounds that The concern expressed on page 154 of thee Plan against developments the facility would interferewith visible access to a beach or historic in exposed bedrock areas is not adequately discussed. building such a denial would not be upheld in the courts. If the Massachusetts Energy Facilities Siting Council cannot deny approval to D. PORTS AND HARBORS. PAGE II - 14 OF DIS a facility on the basis of Policy 15 then why is Policy 15 contained in The CZM Plan rightfully acknowledges the importance of the ports the list of policies on page 5 of the October 7, 1977 Addendum? and harbors of Massachusetts. Industries such as the fishing and maritime Po(3) LICY 16. wouldencoshipping industries are important to the State's economy. However, the DEIS Policy 16 would "encourage scenic river, scenic highway, and and the Plan fail to identify and examine alternatives to the proposals made scenic road designation in the coastal zone and support designation of in the Plan. For example, the social, environmental and economic impacts of Areas for Preservation and Restoration as Sign Free Areas". This policy prohibitions on non-maritime dependent uses should be thoroughly discussed is carefully written in language which avoids the use of outright and examined. The restrictions (see page 179 of Plan) on new channels or prohibitions. It is exhortatory in nature rather than mandatory. mooring and turn-around basins of 20-foot depth or more should also be However, given the use of "memorandum of understanding" between the examined. The economic and social effects of these and other proposed Secretary of EOEA and the Commissioner of DEM an incorrect inference restrictions must be presented. The absence of EOEA and agency regulations can be drawn that DEM will be bound to Policy 16 in its deliberations in this instance also makes meaningful, adequate comment impossible. under the Scenic and Recreational Rivers Act, G.L. c. 21, 5 17A, thus The following comments are, however, offered on specific policies: ignoring the careful procedural protections given to affected land (1) POLICY 17. owners in G.L. c. 21, � 17A, who are entitled to notice and participa- This policy is contrary to law insofar as it purports to require tion in specific orders relating to their interests, impartial decision the denial of permits for non-marine dependent use under the conditions by the Board of Environmental Management and ultimately court review and indicated on pages II-1S to 16 of the DEIS, since the authorities cited in adjudication of the confiscatory taking and other issues. -49- the Plan do not establish "marine dependency" as described in Policy 17 as a coastal communities, as well as the impact on the State's economy if basis for the denial of permits. A property owner, for example a waterfront a business declines to locate in existing port areas because of this restaurant or an electric company, cannot be denied a permit because policy. In short, will this policy result in foregone economic spokesmen for public agencies and/or fishing interests, etc. have development opportunities and, if so, to what extent and with what expressed interest in the sife for a waterfront dependent use of effect on the economy of the state and the livelihood of its citizens? particular state or national economic importance. This coupled with (3) POLICIES 19 & 2. the proposed restrictions regarding an "irreversible commitment" of a These policies are vague in that the meaning of the words' "best available" site for a maritime dependent use is unauthorized by "encourage" and "minimal" are unclear. The minimization of environ- law and an unconstitutional deprivation of the property rights of land mental effects ought not to be by itself a criterion for agency owners. decisions; a more balanced approach is called for. Policy 19 also The policy is also unwise. The definition of marine dependent use seems contrary to the stated objectives of encouraging water dependent is unduly restrictive; for example, a facility is held to be not uses in ports, since this policy indicates that this is to be done where coastally dependent if it can physically be located inland. This is the risk of damage to the marine environment is minimal. Because the too narrow a definition and the economic and environmental effects of requirement Is not simply that a developer comply with applicable exclusion from ports and harbors or from other parts of the coast of regulatory programs, this policy indicates, as do others n the plan, non-maritime uses must be thoroughly explored. A more broad definition bias against balanced economic development. of coastal dependency, namely, one of economic dependency ought also to be studied. The word "encourage" is vauge and confusing in-its E. RECREATION implications to. agencies and private individuals. The subject of Recreation is discussed not dnly in the Chapter (2) POLICY 18.. . on "Recreation" but in various places throughout the Plan and DEIS. This whole policy is vague and unclear in its use of the words, Accordingly the following comments are offered on this subject. "promote", "widest possible public benefit", and "ensure". As indicated (1) Significant Resource Areas ( -2. . -4 of DEIS) (1) _Snificant Resource Areas (pp. II-2t pp. iI-4 of DEIS. before the implications (social, economic, and environmental) of the The DHIS and the Plan fail to adequately describe the economic criteria set forth on page 11-17 and alternatives thereto ought to be impacts of designating certain geographic areas as: set forth. The DEIS should include a discussion of the impacts of local 2oe The DEIS fails to adequately describe the social, economic, and a. SRA-Restricted environmental impacts on inland communities of designating certain b. SRA-Conditioned coastal geographic areas as: c. SRA-Economic a. SRA-Restricted d. SRA-Recreation b. SRA-Conditioned The DEIS fails to adequately describe the effects of the CZM Plan c. SRA-Economic on the amount of "developable" land as the result of designating d. SRA-Recreation certain geographic areas as: The DEIS fails to adequately describe the locational impacts on a. SRA-Restricted potential development as the result of the SRA designations b. SRA-Conditioned proposed. c. SRA-Economic THe DEIS fails to consider alternatives to the concept of SRPA d. SRA-Recreation designations. The DEIS fails to adequately describe the impact on competing land The DEIS fails to adequately describe the social, economic, and uses of establishing recreational use as a priority use in each of environmental impacts of alternatives to the SRA designations the following geographic areas: proposed. a. SRA-Restricted The DEIS fails to consider alternatives to the particular SRA b. SRA-Conditioned designations proposed. c. SRA-Economic The DEIS fails to adequately consider the social, economic, and d. SRA-Recreation environmental effects of each alternative so that a considered The DEIS fails to adequately describe the effects on property and and reasoned choice can be made. tax values which will result from designating geographic areas as: The DEIS fails to identify those geographic areas which will be a. SRA-Restricted designated SRA's. b. SPA-Conditioned (2) Remainder of Coastal Zone (p. II1-5) c. SRA-Economic The DEIS fails to adequately describe the economic impacts resulting d. SRA-Recreation from state efforts to "minimize conflicts" between developments and adjacent recreational or historic sites. sea~:" -54- - 53- The DEIS fails to adequately describe and consider the effects on The DEIS fails to clarify the meaning of "minimize conflict". inland communities of alternatives to the proposed five "interests" The DEIS fails to consider alternatives to "minimizing" such for the remainder of the coastal zone. conflicts. The DEIS fails to evidence a balanced approach in protecting The DEIS fails to adequately describe and consider alternatives to certain "interests" along the remainder of the coast. the five "interests" proposed for the remainder of the coastal (3) Recreation Policies, Page 11 - 17. of DEIS zone. The DEIS fails to recognize the broader scope of Policy 26 as The DEIS fails to adequately describe the social, economic, and detailed in the Addendum to the Massachusetts CZM program. environmental effects of alternatives to the five "interests" The DEIS fails to adequately describe the social, economic, and proposed for the remainder of the coastal zone. environmental effects of Policy 26. The DEIS5 fails to describe the locational impacts on development The DEIS does not adequately describe regions of high recreational resulting from protecting the five "interests" proposed for the need. remainder of the coastal zone. The DEIS does not adequately describe the effects of Policy 26 on The DEIS fails to adequately describe what types of economic Competing land uses, particularly in urban areas. development will he prevented as the result of promoting the The DEIS does not adequately describe the effects on competing land five "interests" for the remainder of the coastal zone. uses of expanding recreational boating facilities (CZM Plan The DEIS fails to adequately describe the effects on the amount pp. 196-197). of "developable" coastal lands of promoting the five "interests" The DEIS does not adequately describe the effects an competing land uses of the public taking of an additional 50 miles on 10-10,000 The DE11 fails to adequately describe the effects on property and acres of coastal ].ands (CZM Plan p. 198). tax values as the result of promoting the five "interests" for The DEIS does not adequately describe the environmental, social, the remainder of the coastal zone. and economic effects of Policies 10, 21, 22, 23, 25, and 26 on the The DEIS fails to adequately describe the social, economic, and amount of "developable" land along the Massachusetts Coastline. environmental impacts on inland communities of promoting the The DEIS does not adequately describe tile effects on non-coastal proposed five "interests" for the remainder of the coastal zone. communities of Policies 10. 21, 22, 23, 25, and 26. Ao 3 The DEIS does not adequately describe the effects of Policies 10, The DEIS does not adequately describe the effects on competing T 2 2 ad26 the c ts of lcig 21, 22, 23, 25 and 26 on the Massachusetts CZM goal of locating land uses of public taking of numerous, "small, veil distributed economic development in urban areas. sites" for recreational purposes in urban areas (CZM Plan p. 198). economic development in urban areas. The DEIS does not adequately describe alternatives to expanded The DEIS does not adequately describe the effects of state state acquisition of "developable" lands for recreational purposes. take-over of surplus federal lands on the amount of "developable" coastal lands, particularly in urban areas (CZ Plan p. 9. The DEIS fails to consider increased use of existing recreational coastal lands, particularly in urban areas (CZMt Plan p. 198). facilities as an alternative to further state acquisitions. The DEIS fails to adequately describe the effects on competing The DEIS fails to adequately describe "conflicting use" as stated land uses and private property rights of state acquisition of in Policy 23. lands and easements for recreational purposes (CZM Plan, p. 200). The DEIS fails to adequately describe how and what type of uses The DEIS does not adequately describe the effects of Policies 10. will be excluded under Policy 23 where such conflicts exist. 21, 22, 23, 25 and 26 on the amount of "developable" land in The DEIS fails to adequately describe the social and economic urban areas. effects of Policy 26 on competing land uses in regions "where site The DEIS does not adequately describe the locational impact of availability is now limited or could be precluded in the future". Policies 10, 21, 22, 23, 25 and 26 on industries competing for The DEIS fails to consider the social, economic, and environmental lands within the coastal zone. impacts on inland communities of prioritizing new public recreas- The DEIS does not adequately describe the effect of Policies 10, tional facilities in "regions of high need" (i.e., urban areas). 21, 22, 23, 25 and 26 on private property and tax values. The DEIS fails to adequately describe the methodology for assuring The DEIS does not adequately describe the effects of Policies 10, that recreational facilities will be "compatible with social and 21, 22, 23, 25 and 26 on inland private property values. environmental characteristics of the surrounding communities" The DEIS does not adequately describe the mechanism, source of (Policy 26). funds or standards for measurement for compensating private The DEIS incorrectly states that state permits can be denied by property owners as the result of implementing Policies 10, 21, 22, use of the MEPA statute to prevent "adverse impacts" on existing 23, 25 and 26. public recreation areas from activities near public recreation The DEIS does not adequately describe the effects of Policy 26 on sites. The words "minimize potential adverse impacts" are unclear, urban redevelopment and renewal efforts as encouraged in Policy 20 w and Policy 17. -57- -58- The DEIS fails to adequately describe the impacts of increasing and an unwise policy since a balancing of all relevant factors public access to coastal resources on private property--owners is called for in decision making (Policy 27). within the coastal zone. The DEIS fails to recognize that Policy 27 does not consider the The DEIS fails to adequately describe the effects of public national interest in economic development or energy regarding acquisition of easement rights on property owners right to use developments near recreation sites. and enjoyment of private property, nor does it describe the The DEIS fails to define the term "near" in Policy 27. mechanism, source of funds or standards for measuring compen- The DEIS fails to adequately define "potential adverse impacts", sation to private property owners resulting from such as stated in Policy 27. acquisitions. The DEIS does not adequately describe the economic, social, and The DEIS fails to discuss alternatives to public acquisitions of environmental impacts, or alternatives, of siting sewage treatment easement rights, surplus federal lands and "developable" lands plants and other outfalls so as to minimize adverse effects on for expanding recreational facilities and public access to coastal recreational beaches (DEIS p. 11-59). resources. The DEIS fails to recognize that decisions to protect recrea- tional areas must be balanced within the national and state F. POLICIES 28 - 33, PAGE II - 21 OF DEIS interests in economic development and adequacy of energy supply. Policies 28 to 33 are not listed as "enforceable" in the DEIS. The DEIS fails to adequately describe how the national interest Yet when read together with the memorandum of understanding between the in economic development and energy is incorporated into siting Secretary of EOEA and the Chairman of the Hassachusetts Energy Facilities decisions for recreational facilities. Siting Council (EFSC) it is the apparent intent that they be binding on the The DEIS fails to adequately describe the social, economic, and EFSC. Also page 5 of the October 7, 1977 Addendum to the Massachusetts CZH environmental impacts of improving transportation facilities to Program instructs EFSC to "weigh", "consider" etc., some 18 specified policies coastal recreational sites. within the Program. How such policies can be "weighed" and somehow not The DEIS fails to adequately describe the economic impacts on "enforced" is a highly confusing matter. inland communities of improving transportation facilities to As referred to above there is a contradiction in the text of the coastal recreation sites. DEIS (p. IV-4) and the August 23, 1977 memorandum attached to the DEIS (p. 5) as to when and in what procedural framework the applicable policies of the Hassachusetts CZM Program are to become binding on the EFSC. We -59- -6 object to the entire notion that the mere announcement or promulgation of a The EFSC has the following statutory obligations: "policy" by the Secretary of the EOEA or the Governor somehow binds the EFSC (1) to implement the energy policies contained in G.L. c. 164, �� 69H-69R, "to provide a necessary or the energy and utility industries. To have such binding effect such energy supply for the Commonwealth with a minimum impact on the environment at the lowest possible "policies" must conform to the requirements for promulgation of regulations cost". C.L. c. 164, � 69H. contained in Chapter 30A of the Massachusetts General Laws, including the (2) To approve long-range forecasts of gas and electric companies, and plans for construction, if it requirements for public notice and hearings. The EFSC in � 62.9(3) of its determines, inter alia, that such forecasts and construction "are consistent with current health, Regulations has recognized that the "policies" it must act consistently with environmental protection, and resource use and development policies as adopted by the Common- are set forth in the Constitution, general laws, and duly promulgated rules wealth. . ." G.L. c. 164, �69J. and regulations of responsible state agencies having the force of law. The EFSC has stated in its regulations that it will consider only This obviously does not include mere memoranda of understanding or CZM Program those health, environmental protection, and resource use and development documents which do not meet this test. policies of the Commonwealth which are set forth in the state constitution, Even an attempt of EOEA to bind the EFSC by the mechanism of general laws, and duly promulgated rules and regulations of responsible state, issuing regulations must fail if the authority asserted in the regulations regional or local agencies having the force of law. EFSC Regulations, Rule is beyond the scope of jurisdiction of the EOEA or other issuing agency and 62.9 (3). The following aspects of the CZM Program are unlawful because thus fails to have the force of law. they conflict with the statutory standards applicable to EFSC action, and A more detailed discussion of the jurisdictional relationship are not authorized under the EOEA Reorganization Act, G.L. c.21A: between the Massachusetts CZM Program and the EFSC is contained in an (1) EOEA cannot establish land-use and energy-siting policies which are binding on EFSC. See, e.g., April 26, 1977 memorandum of John J. Desmond, III, Counsel for Boston Policies 1, 2, and 8; pp. IV-4 to IV-6 of DEIS; p. 4 of Addendum; p. 7 of Memo dated August 23, Edison Company which is attached to these comments, and infra, pp. 96-103. 1977, attached to DEIS. The lack of authority of the Secretary of EOEA to substantively regulate (2) EOEA cannot bind EFSC to the principle of "coastal dependency" and dictate the scope of its review. land use and energy facilities planning in the Coastal Zone is discussed See, e.g., pp. 4 and 5 of Addendum; MOU, p. a-19. in a May 6, 1977 memorandum of Patrick J. Kenny, Counsel for New England (3) EFSC cannot be required to disapprove the siting of energy facilities in APR's. See Policy 2; Power Service Company, also attached to these comments. Further discussion p. 4 of Addendum; and the various policies in the Energy Chapter. of the same issues and an analysis of Boundaries and Land Use Controls is contained in a May 5, 1977 memorandum of Attorney Michael T. Gengler of Rich, May, Bilodeau & Flaherty, which is also attached. ~ao4 - L - : i . ii~~_s _ j -61-. -62- (4) The Secretary of EOEA, as a member of EFSC, cannot ability to locate a facility inland does not guarantee that a given inland be an advocate of environmental concerns, but must be an independent and objective adjudicatory location is preferable to a coastal alternative in light of increased costs, officer. See p. 3 of Memo dated August 23, 1977, attached to DEIS. other socio-economic factors, and inland environmental impacts associated (5) EOEA cannot in the manner proposed impose on the with the inland site. energy industry (and EFSC) eighteen new standards or policies. See p. 5 of Addendum; p. IV-6 of Likewise the impact on other States of discouraging energy develop- DEIS; and p. 7 of Memo attached to DEIS. Sent in coastal areas of Massachusetts is not adequately addressed. Such an (6) EOEA cannot by MOU bind EFSC to issue regulations or an administrative bulletin to implement the CZH impact would be expected to be of importance with regard to powerplants and Program; to recognize the CZM Program, as approved by the Governor, as state environmental policy; to oil and gas facilities. For example, in light of the discussion of the New submit Company submissions to EOEA prior to hearing before EFSC: to recognize the standing of the CZM England Power Pool and the regional coordination of new power facilities in office in eFSC proceedngs; to give "prime consider- ation" to environmental impacts of facilities the six-state New England area, it should be possible to discuss in some proposed for areas of critical environmental concern. See text of MOD at p. a-19 of Plan. detail the impact of inland and out-of-State siting in New England of new (7) Policy 33b, requiring the acceleration of solar and powerplants that may be displaced from the Massachusetts coast. Likewise wind power and conservation measures as set forth in the Program Addendum dated October 7, 1977, the systematic exclusion of Outer Continental Shelf related on-shore activi- cannot bind agencies charged with responsibility to review proposed energy facilities under existing ties from APR's and other large areas of the Coast and the bias against statutory standards. This policy is a needlessly confusing complication to the licensing process. "non-coastally dependent" components of such activities would be expected See p. 1-2 of Addendum. to displace many future Outer Continental Shelf related activities from the (8) The text of Policy 31 refers to a function of the State CZM office of "providing for" electric Massachusetts coast to inland Massachusetts locations and other States, energy development and to the existence of "CZM's approval procedures". No such function or proce- principally on the Atlantic Northeast Coast. No attempt is made to measure dure has been authorized by law. The function of providing for electric energy development belongs and quantify the socio-economic impacts of such displacement on Massachusetts to the utility industry not to the State CZM office. The State CZM office has no approval authority over or the socio-economic and environmental impacts of such activities in the any energy facility. inland or out-of-state locations where the activities would take place. The text of the energy chapter and policies of the Massachusetts Alternatives to the proposed energy policies are not discussed. Coastal Zone Management Program and the discussions of energy in the DEIS do : In light of the national interest in energy acknowledged by Sec. 306(c)(8) not discuss adequately the economic and environmental cost of placing energy and Sec. 308 of the Coastal Zone Management Act, appropriate alternatives facilities inland even when they are not "coastally dependent".' Mere physical that should be discussed include policies of actively encouraging development -63- -64- of electric power plants, gas facilities, oil facilities and OCS shore gas transmission activities. The DEIS discussion of energy policies in Part related facilities. Such facilities are of benefit to the entire New England II Ch, 2 does not discuss the exemption of smaller energy facilities from region. Sec. 306(c)(2) of the Coastal Zone Management Act requires that each the Jurisdiction of the EFSC. Such a discussion is necessary to measure State's program contain "a method of assuring that local land and water use the impact that construction of such facilities would have on thle Massachusetts regulations within the Coastal Zone do not unreasonably restrict or exclude Coastal Zone Management Program and on the EFSC's role in implementing the land and water uses of regional benefit". The Massachusetts Program does not Program. meet this requirement for energy facilities. To the extent that the EFSC Policy 33 as amended by the October 7, 1977 Addendum to the would be bound by the Progrnm document as a binding expression of State Massachusetts Coastal Zone Management Program document is simply repeated in environmental policy, the EFSC could not provide an override of the exclu- the text of Page II-28 of the DEIS, unaccompanied by any discussion. A sionary Programs of the Massachusetts Coastal Zone Management Program. thorough discussion should be provided for the DEIS to provide meaningful Also, given the illegal attempt of the Massachusetts Coastal Zone guidance as to the intent and interpretation of Policy 33. Furthermore, this Management Program to establish a system of encouraging "coastally dependent" policy has no place in the Plan since conservation and alternate energy sources uses at the expense of "non-coastally dependent" uses in Policy 17, an are the responsibility of state and federal agencies other than EOEA. appropriate alternative policy, in light of the national interest in energy, would be a policy of discouraging uses which might interfere with future G. GENERAL DEVELOPMENT AND PUBLIC (AND PRIVATE) iNVESTMENT POLICIES energy facilities. (Of course, adequate statutory provisions would have to p. 11-33 OF DEiS be adopted by the Commonwealth of Massachusetts for such a policy to be It must be stated at the outset that this section of the DEIS enforced.) inaccurately includes the phrase "Private Investment" in its title whereas The energy chapter in the Massachusetts Coastal Zone Management the plan does not. One can only assume that this represents a most serious document, the text of the policies, and the DEIS fail to take into account misunderstanding of the plan on the part of federal reviewing authorities, or adequately discuss the effect on the Massachusetts Coastal Zone Management which can result in less than accurate comments on the part of the public Program and on the Jurisdiction of EOEA and. EFSC of the exclusion of several' on this section in the statement. On the other hand, if the DEIS title is energy activities from State Jurisdiction, including Nuclear Regulatory accurate, then the corresponding title in the CZM Plan is misleading. Commission Jurisdiction over nuclear power plant radiation safety, and Federal The entire section on General Development and Public Investment Energy Regulatory Commission jurisdiction over hydroelectric and interstate can only be viewed as an oversimplified and uninformed view of the policies dealing with vital economic activity in the coastal zone. ;tat. -65- -66- The section fails to deal with alternatives, such as deleting those policies There should be a detailed discussion of the effects of the com- plexity of this plan on the average small businessman. The DEIS also which are in fact unenforceable. A major criticism of both the DEIS and the CZM Plan, for that fails to consider the effect of questionable statutory authority on matter, is that the tenor of the entire section is not pointed in a positive the business community. Specifically, there is significant negative direction. The DEIS fails to discuss this. Its discussion of vital economic impact on business and investor security given the expected widespread activity, a requirement for consideration in the federal review process, is use of the CZN Plan as a delaying tactic against development by over- vague, uninformed, and naive. On the whole it is totally inadequate as a zealous environmental interests. means by which to judge the actual impact of the CZH Plan on growth related The DEIS fails to adequately consider whether existing regulations activities in the areas covered by the plan. and laws do not already unreasonably or reasonably restrict or exclude (1) Comments on All Policies land and water uses of regional benefit. In this regard, the DEIS The DEIS fails to consider the benefits of designating and also does not adequately consider the alternative of exempting some or funding alternative state agencies to implement the developmentally all of these activities from the CZH review process. related policies and aspects of the CZM program. And, more specifically, It should be pointed out that the CZM Plan does not provide what would be the effect of such policies if implemented by agencies yardsticks with which to judge what shall constitute permissible land that have the budgetary, administrative, and/or statutory powers to and water uses in the zone which have a direct impact on the coastal actually implement these goals? waters. Given the scope of the CZM Plan the DEIS must describe the The DEIS fails to adequately describe the legal, philosophical, effects of policies 10, 21, 22, 23, 25, 26, and 27 on the amount of and practical administrative problems inherent in having all economic land designated as developable in the zone. Without this, no accurate policies implemented by the Executive Office of Environmental Affairs. assessment of economic impact can be made. Is there adequate expertise, experience, and sensitivity to business In view of the rush to approve the Plan, no evidence exists in the concerns? We think not, but at the very least this analysis must be DEIS as to the serious negative economic impact on project feasibility made. given increased costs which will be the result of the CZM process incluJ7 The DEIS is a negative commentary, and fails to adequately consider ing legal exposure, collateral legal attack, and investor insecurity. actively utilizing the full range of positive economic development Also, the relationship of policies 14 and 15 should be viewed in terms incentives offered by the Commonwealth. of policies 34-38. What isan example of a development of only local -68- The DEIS also fails to consider the interaction of policies concern? There is no analysis of what the parameters for such a 34-38 with policies 10, 21, 22, 23, 25, and 27 and the effects on designation are. The DEIS fails further to adequately describe land values, development costs and local revenue and tax base. whether such "local concern" projects are exempt from visual or The effects on inland communities has been totally ignored. recreational policies whether or not state permits are required, (e.g.,'Wetlands appeal-superseding order). What are the social, economic, and environmental impacts the CZH Plan (e.g., Wetlands appeal-superseding order). will have on inland communities? Consider federal and state funding, The DEIS fails to adequately consider the effects of the density growth pressures, etc. Will not the CZM plan result in increased constraints in the State Environmental Code on the amount of develop- no-growth restrictions? What does the plan propose to do in that event? ment possible in developable urban sites. No consideration is given What powers can EOEA use? In short what are the contingency plans to in the DEIS of the conflict between transportation infrastructure encourage legitimate growth in case of problems after implementation and investments for recreational access and the effects this will have on how can they be implemented where local ordinances are already in place? developable land in those areas. This seems to be a circular problem Surprisingly, there is no treatment of the impacts of the Clean in that access brings people other than just tourists. What is the Air Act Amendments of 1977 on the CZM Plan, and their location of develop- expected response of local communities in this situation? If, as ment in urban (non-attainment) areas and prevention of significant expected, further local growth controls and restraints result, of deterioration areas. what value is the plan where it encourages responsible development In the area of infrastructure, what effect will CZM have on but in fact results in no-growth restrictions? In addition, no Federal Water Pollution Control Act, Sections 303, 201, 208, and 404 discussion or conclusion is made regarding further constraints placed projects not yet listed. Is the Plan therefore precluding such on developable land by CZM policies 10, 21, 22, 23, 25, 26, and 27. activities or hampering future attempts to carry out these activities? In the final analysis is half of the 21I of the total coastal zone in fact economically usable? See CZM Plan, p. 291. What is left for The DEIS completely fails to come to grips with the problems caused by policy 35 which will effectively constrain development to such economic activity? The DEIS fails to adequately describe the effects of policy 27 only urban areas. (Proximity to Recreation). Does this include potential as well as (2) Polic 34 existing areas? If so, what is the limit and effects of a "potential" The DEIS fails to point out the existence of an insurmountable "catch 22" situation whereby land may be predetermined to be developable designation. by the CZH map designation, thel have placed upon it increased a1o -69- -70- restrictions making it unable to meet individual septic system but also to sewer lines, to light-industrial parks or along residential requirements (e.g., distance set backs, percolation rates, depth streets and to federally-financed housing as well. The failure of the to ground water level, etc.), and also be precluded from necessary DEIS to discuss-this problem and alternatives results in misleading sewering programs because it is not urban-centered infrastructure the public who may feel the need to comment on this problem. investment. In short, it is declared developable, but unsewered and The plan at pg. 294 incorrectly states the anti-degradation unable to accept individual sewage disposal systems. What of policy of the Division of Water Pollution Control since not all increased local restrictions which totally defeat these positive discharges are prohibited in anti-degradation areas. developmental opportunities? The conflicts above are illustrated by comparing and overlaying The DEIS fails to recognize throughout that the designation of two of the maps from the CZM document: (a) the large map (back insert, developable areas does not enable development per se. The plan Vol. 1, Massachusetts CZM Program) which shows in white the "Potentially increases restricted areas, but does not free up other areas in developable areas"; and (b) the map of Sewer Service Areas, Existing return. The DEIS and the plan do not balance economic and environ- and Potential (Massachusetts CZH, page 289). It is evident from the two mental interests. maps that much of the land claimed to be "potentially developable" is The DEIS and CZM explanation of Policy 34 both state that excluded from development because that land is not within potential sewer "Commercial, industrial and residential developments to which other service areas. The DEIS fails to address this conflict or offer any CZM policies do not apply are considered to be of local concern ". meaningful solutions. However; policies 35-38 apply equally to all development, be it Policy 34, both in the CZM text and in the DEIS is devoid of commercial, industrial or residential. Not only will the Massachusetts information on the effects of local prerogatives in the administration, CZM authorities dictate to the Federal government through the federal enforcement, and re-regulation under the State Environmental Code-Title consistency provisions the approval of federally-funded projects, but V. The relationship of local authorities in the health code field to this same action threatens to dictate to the cities and towns where the State Code must be included in the final statement. Fundamental such federally-funded projects may go, regardless of the desires of decisions, such as which code controls, must be considerqd and clarified. the local municipality, This applies not only to large scale projects, such as mass transit systems, water and sewer treatment plants, etc., -72- -71- claimed that CZM can ensureconformity by the Federal government with (3) Policy 35. tile detailed specifics of the CZM program. There is no enforcement The Massachusetts CZM document requires (page 296) that the 208 power. There is no control over federally-funded activities. There plans being developed be consistent with the CZM program, and that 201 is no authority in CZM to regulate nor guide public infrastructure projects be consistent with the CZM program. To the contrary, projects be cnsitent with the program. To the contrary, investments. The DEIS must address these conflicts as well. CZM Congress has mandated that planning authority for 201 projects be obtains its legal basis only in existing state statutes. granted to 208 agencies, and once the 208 plans are approved by the According to the DEIS (11-29) further continuation of the EPA state, that 201 projects be consistent with the 208 plans. By what Water Clean Up Program will be impossible beyond 1977 without revision authority does Massachusetts CZM change the express intent of and amendment of the Massachusetts CZM Plan. What are the effects on Congress? Water planning authority has been given to the 208 agencies; the environment of delays such as this? What procedure will be used yet CZM asserts the 208 agencies must conform to CZM, which is taking to change the Plan? Notice? Hearings? Time? Why initially approve away from the 208 agencies the authority assigned by Congress. The this plan where such fundamental problems remain unresolved. In this DEIS does not address this conflict. connection, it should be noted that the bulk of 201 projects to be The DEIS states Policy 35 is "enforceable under current funded in 1978 would have involved coastal communities and their present Massachusetts laws"; this is not correct. There is no legislative discharges of raw sewerage into bay and ocean waters. A great deal of authority to assign highest priority to infrastructure which meets environmental impact has been disregarded in the DEIS. thie needs -bf urban and community development interests. The CZM Further, transportation projects will also require formal revision document speaks of CZN having "adequate opportunity for input" (page and amendment to the CZM Plan. It is astounding to read what 296), "probable that CZM will have the opportunity for considerable "consistency" here means -- not consistency with legitimate environ- input" (page 297), "CZM would participate in the review" (page 297), mental impact on coastal waters or on pristine environmental resource "CZM will act as an advocate before..." (page 297). This is not areas, s of areas, -- but rather "Consistency will be Judged on the basis of enforcement, but merely comment. Yet, through a distortion of the anticipated changes in land development patterns and rates that may meaning of "federal consistency" (as explained elsewhere), it is result from changes in transportation access." (DEIS, 11-31). Under what Massachusetts law is this enforceable? Under what statutory authority does CZM have this power? Further, EOEA is not a transportation 9LIO -74- -73- local authorities to adopt only policies consistent with CZH. Where or land use planning agency. What effect will this fact have on both is the local prerogative and autonomy which is claimed in the plan? economic and environmental activities? Again, no discussion is The DEIS on 11-7 states the classification of policies as enforce- included. able is by virtue of existing state law. Policy 2 is not listed as What is the economic impact of policies which serve to limit enforceable. However, on page II-32 the first criterion for approval infrastructure improvement strictly to urban or town centers? What (No. 1) states that policy 2 can be used as a criterion with which to are the effects of this policy on the general economic climate of the deny a permit for certain activities. How can an unenforceable policy state? Is this tantamount to economic discrimination against citizens be used to enforce another policy? The Plan and the DEIS tend to show of smaller municipalities? What are the alternatives to these policies? this result. The DEIS fails to both clarify this concern, or point out The DEIS on page II-29 glosses over the three criteria for public that here the plan cannot create in and of itself a self-contained infrastructure consistency. enforcement power by virtue of any policy's inclusion in the plan. (See 1. No mention is made of prevalant local no-growth attitude. This also policy 13 at page 11-34). is evidently shown in the DEIS as acceptable where only areas (4) Policy 36 wanting growth are considered. The economic implications of this The DEIS does not address the meaning of "providing" as used in are staggering, but unconsidered. policy 36 (.... providing federal and state financial support...). A 2. As to water supply, no standards are shown with which to judge reading of the policy and its supporting paragraphs clearly shows the this factor. Are we to assume a moratoria is justified on the word is not "providing", but "permitting, not to obstruct, allowing basis of a non-scientific feeling that water is in short supply? federal financial assistance to go where it is planned by others". 3. How is the subjective criteria of community or regional character Publicly financed housing developments must be "consistent" with judged and determined? Inclusion of this basis for decision the CZM Plan. In the case of state-financed projects,,which are under making creates enforcement of a stated unenforceable aspect of the authority and statutory responsibility of a different executive this policy. By what authority? office (e.g., Communities and Development), the DE IS does not address Under Criteria 1 of policy 35 (page II-29) there must be "evidence; '...- the issue of statutory authority whereby such a commitment may be made that local regulatory measures will be adopted to direct further growth..." consistent with this policy. This is merely blackmail of by CZM binding upon other state Executive Offices. In the case of HUD Z*, -75- -76- grants which are directly between HUD and the municipality, it is only The DEIS fails to hold any discussion of policy 37. What are the intimated (page 299, "Under the A-95 review process, CZH will champion alternatives? applications consistent with the above policy") that CZM will use the There is no treatment of the possible conflicts under policy 37 federal consistency requirement to enforce its view of where housing .between character and the clustering of development. What of traffic, should go. The DEIS is deficient in that it must answer questions like: safety and other considerations in this regard? (1) In what circumstances will federal consistency will be so invoked? The CZH Plan and the DEIS are quick to present restriction of (2) How does this coincide with the oft-repeated statements of "respect- activities, but short on the exposition of growth needs. ing local choices"? (3) What authority does CZM has over other state The DEIS fails to consider loss of value and tax base for land Executive Offices and by what statutes? (4) What are the alternatives outside of the designated custered areas. What of fiscal impacts on thereto? the State where takings are judged to have occurred. The DEIS says that Policy 36 is not enforceable. Given the above It is unclear in what way this policy -- essentially three narra- comments, it is not clear whether the policy is enforceable or not. tive paragraphs expressing planning goals - will be a criterion Control of the pursestrings seems a quite strict control. Does this against which an application will be judged or in terms of which the mean that CZM can withhold an approval although unrelated to the permit CZH program will be implemented. being sought? This policy states one of the weak links in the entire CZM program. (5) Policy 37 It will "encourage" an entirely separate Executive Office. It will The DEIS parrots the CZH Plan in this and other policies regarding "encourage" local municipalities to change zoning and health codes. "encouraging". There is, however, no definition or parameters for how The authority to implement the program, the responsibility to make the far EOEA can or will go to accomplish the "encourage" policies. program work lies not in CZH, but in other state or local agencies. What is the effect on the CZM Plan if measures are not locally What are the alternative agencies for responsibility and why are they adopted? not considered in the DEIS? See also Hassachusetts Growth Policy Report The DEIS speaks of "compatibility with local character". How is (September, 1977, page 75). this subjective standard arrived at? What is the process for changing This fundamental flaw in the CZH Program must be fully considered. local "character"? Does this local shift become constrained by the (6) Policy 38 existence of the CZM Plan? How is this desire for change communicated This policy suffers the same ambiguities as the earlier "Develop- to CZM? What is the expected CZM response? ment" policies. What is the meaning of "encourage"? What is the -77- -78- This is likely unenforceable, as the DEIS states (DEIS 11-7), but any meaning of "assist"? The DEIS is strangely silent, and offers no comment on this policy. The CZM text (page 301) repeats the words such declaration by CZM on "non-conformance" would raise grave legal difficulties for any developer. Impact here, must be discussed, of policy 38: "conforming to CZM policies and assist developers to reach such conformance". What is required of developers is that the including alternatives. There must be included a definition for threshold standards by proposed development conform to CZM policies. Stated in the plural which to judge what is and what is not a "major development". this appears to mean all 38 of them, and to the text accompanying each There are stated to be certain positive aspects of the CZM Plan of these policies. This innocuous looking policy, which received no which assist development. Absent discussion of such aspects one can comment in tile DEIS, sets the legal arena and legal requirements against which any development can be measured, namely any one paragraph from only conclude those statements are of little if any substance. The DEIS fails to add alternatives such as credits for positive pages 39 to 305. See also Certification Statement on p. 366 of CZM Plan. economic impact which may or may not impact the environment, but which "Any ten citizens" (DEIS, 11-49) can challenge any development on should transcend the provisions of the plan because of other'overriding the basis of any paragraph from pages 39 to 305, whether or not the CZM staff has granted approval. The potentials for legal delays are endless. concerns. Any projects, major or minor, public or private, is subject to the (7) Conclusion to Comments on Policies 34-38 A fundamental flaw in this entire section which would regulate impossible task of meeting the requirements of every paragraph of the development and growth is that the Legislature has spoken in this area. 277 pages of policies and accompanying text. A major environmental The responsibility for encouraging development has been located'by the project such as the planned $800 million clean-up of Boston Harbor Massachusetts Legislature within the Office of the Secretary of Economic under P. L. 92-500, which is already the subject of considerable contro- and Manpower Affairs;~ and 'particula~ry'within t be' DlatmentofCommerce versy in Quincy, Wellesley, Natick, etc., could never clear the legal and Development. Secondly, growth planning h-s alsobeen addressed by barbs and hooks contained in the proposed CZM program. The DEIS must the Massachusetts Legislature in the Massachusetts Growth Policy discuss the environmental, social, and economic consequences of this Development Act (Chapter 807 of the Acts Ol975). iUnder that Ac', unlimited legal exposure which will result when and if the CZM Plan isof the Ats of 1975). Under th which governs the state, local growth policy reports were developed in approved. The text accompanying policy 38 states that CZM will use the M4EPA each community, including the coastal communities; these in turn have been process to review "conformance with CZM policies" (not with MEPA policies). -79- incorporated into regional growth policy reports, and the regional 3. What has happened to the legislatively established procedures reports have recently been incorporated into a state-wide report, the and responsibilities for Massachusetts Growth Policy development? Massachusetts Growth Policy Report. Issued under Governor Dukakis' signature in September, 1977, neither the Growth Policy Report, nor the enabling law shows CZM or the Executive Office of Environmental Affairs as having supremacy over the coastal zone as claimed in the CZM program. Thirdly, under the Growth Policy Act and Report, there are only policies which are defined as broad guidelines to aid in infrastructure location and development choices. In contrast, and contrary to the Growth Policy Act, the growth policies are distorted under CZH into fixed, rigid criteria which must be met both singularly and collectively. The DEIS fails to point this fact out. For the above reasons, among others, the entire "Development" policy section violates a fundamental requirement of the federal DEIS: "a clear sense of direction and predictability for decision makers..." (DEIS, 1-3). Neither private developers nor local officials nor state or federal agency heads will have the slightest inkling whether any proposed project will clear the CZH process or the unlimited legal exposure which is contained in the aIost 300-pages of text accompanying these policies. The DEIS must address the following: 1. What has happened to the legislatively established procedures and responsibilities for zoning? 2. What has happened to the legislatively established procedures and responsibilities for economic development? a lp -8- -82- VI. COMMENTS ON PART II, CHAPTER 3 OF DEIS VII. COMMENTS ON PART II. CHAPTER 4 OF DEIS Our comments on legal authorities for the individual policies A. PART II, CHAPTER 4. SECTION A OF THE DEIS FAILS TO DESCRIBE ACCURATELY THE FUNCTIONS OF THE STATE AGENCIES REFERRED TO THEREIN. of the CZM Plan are contained in our comments on Part II, Chapter 2, of THE FUNCTIONS OF THE STATE AGENCIES REFERRED TO THEREIN. As commented on in greate~ detail in the memoranda of Messrs. the DEIS, and in the following documents which are appendices hereto: As commented on in greate detail in the memoranda of Messrs. (1) Legal Memorandum by John J. Desmond, Esquire, of Boston Kenny. Gengler, and Desmond, attached to these comments, dated May 6, 1977, ()Legal Memorandum by John J. Desmond, Esquire, of Boston Edison Company dated April 26, 1977. May 5, 1977 and April 26, 1977 respectively, and the Draft Commentary on (2) Legal Memorandum by Michael T. Gengler, Esquire, of Certain Legal Issues Involved in the Proposed Massachusetts Coastal Zone Rich, May, Bilodeau & Flaherty dated May 5, 1977. (3) Legal Memorandum by Patrick . Kenny, Esquire, of New England Management Program prepared by Messrs. Bresnick, Gengler, Kenny, Lee, and (3) Legal Memorandum by Patrick J. Kenny, Esquire, of New England Power Service Company dated May 6, 1977. Ruddock, dated October 17, 1977, also attached to these comments, the (4) Draft Legal Commentary dated October 17, 1977, prepared by Massachusetts Coastal Zone Management Program cannot be legally adopted an Attorneys' Committee. (5) Report to the Massachusetts Office of Coastal Zone Management or implemented through memoranda of understanding, nor can such memoranda (5) Report to the Massachusetts Office of Coastal Zone Management- dated July 1, 1975, by Alan H. Kaufman, Esquire, of the be deemed binding and enforceable against private parties. Conservation Land Foundation of New England, Inc. As the same memoranda point out, EOEA does not have statutory authority to implement the Massachusetts Coastal Zone Management Programs in the form as written. EOFA does not have authority to issue regulations binding upon EOEA agencies in the substantive decision making entrusted to their care. EOEA and its agencies do not have statutory authority to establish a system of permitted and prohibited uses in the Coastal Zone. (In this regard the "model orders" under the Wetlands Restriction Act and Coastal Wetlands Restriction Act referred to in Policies 1 through 8 are just that, internal Agency "models" with no presumptive validity or binding effect.) EOEA does not have authority to establish an "environmental policy" controlling land use planning and energy policy decisions. Its roles in land use planning and energy policy are purely advisory as recognized by M.G.L. Chapter 21A, Section 2. -84- -83- not contain any substantive power to accept or reject environmental As the above referenced memoranda point out, the mere designation impact reports or the projects and permits to which the impact reports of "Critical Areas of Concern" does not give EOEA any substantive authority relate. to impose restrictions on uses in such areas. The resolution of conflicts 8. PART II, CHAPTER 4, SECTION B OF DEIS power of EOEA is devoid of substantive content that could establish See our comments below, Section VII (D), on relations between regulatory requirements binding on private parties with the force of law. EOEA agencies and the Executive Office of Environmental Affairs. MEPA and NEPA procedures give EOEA no substantive regulatory powers over C. PART I. CHAPTER 4, SECTION C OF DEIS projects and licensing activity of EOEA agencies or other agencies. See our comments below, Section VII (D), on relations between EOEA has no automatic powers to review all Federal agency deter- the Energy Facilities Siting Council and the Executive Office of Environ- minations of consistency with the State program. The Massachusetts Coastal mental Affairs. Zone Management Program relies on the notion that State agencies with D. PART II. CHAPTER 4. SECTION D. OF DEIS, PAGE 11-46 "parallel" jurisdiction similar to the jurisdiction of Federal agencies In the first paragraph of Part II, Chapter 4, Section D, on will somehow infuse EOEA with powers to review the consistency of the p. 1I-46, the DEIS reaches the unsupported conclusion that the CZM Plan "parallel" Federal agencies with the Massachusetts Coastal Zone Manage- will result in the more effective implementation of existing statutory ment Program. This scheme fails to recognize the inability of EOEA authorities by State agencies. agencies as well as agencies outside EOEA to transfer their substantive Tile commentary on legal authorities for the policies of the decision making powers to the State OCZM within EOEA. Without such trans- CZM Plan and on the authority of the Secretary of Environmental Affairs fer of power it is difficult to see how the OCZM within EOEA would have to adopt the CZM Plan and to direct its implementation including the any permit granting powers parallel to the Federal agency involved. It legal memoranda which are Appendices to these comments, raise substantial also fails to recognize the failure of OCZM and other state entities to legal issues concerning the validity of the CZM Plan and its 38 -policies. have enforceable powers upon which to have Federal consistency review in The DEIS admits that 21 of those 38 policies are unenforceable.- In. cases where Federal agency.powers exist which have no parallel in State addition, there are conflicts between different sections of the CZM Plan agencies. ._.... .. (See, for example, Policies 1, 2, and 8, which establish a system of per- The discussion of The Massachusetts Environmental Policy Act mitted and prohibited uses in large areas-of the Coastal Zone, and Policies (MEPA) on P. 11-44 of the DEIS fails to discuss in a clear and adequate 28-33, which purport to acknowledge the power of the Energy Facilities manner the fact that under Massachusetts Law (M.G.L. Chapter 30 Section 62) Siting Council to override such restrictions. the functions of EOEA and its Division of Environmental Impact Review do -A.va At ' inconsistencies within the Plan can lead only to conflicts between agencies The CZM Plan itself does not adequately delineate the scope of charged with implementation of the Plan, to delays in the granting of permits the authorities of individual agencies listed after each policy as having authority to implement the policy. The discussion of the line agencies while conflicts are resolved, and to 'further delay for litigation of legal issues arising from implementation of a poorly drafted and overreaching CZM charged with implementing Policy l, which commences on page 84 of the CZM Plan. Under the existing forty or more Massachusetts statutes, referenced in Plan, is an example of the Plan's inadequate analysis of legal authorities. the CZM Plan, admittedly, there are ample opportunities for delays and increased This discussion merely re-states the geographical jurisdiction of each of costs due to inconsistencies of regulatory action. However, by substituting the the line agencies or regulatory programs, but makes no attempt to deal with CZH Plan for existing regulations and standards under current law, these the agency's ability to carry Policy 1 into effect (except in the case of opportunities will be multiplied because of the difficulty of ascertaining the discussion of the Wetlands Restriction Act, G.L. c. 130, �105). Instead, the precise manner in which each line agency is to implement the CZH Plan under the CZM Plan glosses over possible inadequacies of legal authority by provid- the precise manner in which each line agency is to its owh statutory authorities. ing in the Secretary's draft regulation, "No EOEA agency shall apply CZM These problems will be further compounded if the CZM Plan is adopted policy...where to do so would require them [sic) to take an action imper-pounded if the CZ at the Federal level and by the Secretary of Environmental Affairs prior to missible at law." CZM Plan, draft regulation, �5.6, p. a-33. All legal adoption under G.L. c. 30A of individual agency regulations showing the manner issues related to authority of individual agencies under the CZM Plan are in which the line agencies will utilize the CZM Plan in taking actions. Imple- thus left open for resolution by litigation. Administrators permit appli- mentation of the Massachusetts CZM Plan in its present form will lead to cants, and persons seeking to represent the public interest are left confusion, conflicts and delays in the permitting prodecure for Coastal Zone completely in the dark as to the manner in which these legal issues are to projects of all kinds, including energy facilities. Delays will cause increases be resolved. in the cost of almost every project which must be approved under the CZM Plan. Apart from the question of whether so general a disclaimer as It is likely that some projects may be ,abandoned or moved to out-of-state �5.6 of the draft regulations can cure illegal provisions of tfie CZM Plan locations due to delays and increased costs. A confusing CZM Plan of question- (see p. 88 infrd), it is not good management practice to leave the scope of able legality will also interfere with the goal of' 306 (c) (8) of the Coastal each agency's authority to implement specific CZM policies for resolution on Zone Management Act, 16 U.S.C. 51455(c) (8), which requires CZM Plans to pro- a case-by-case basis. vide for adequate consideration of the national interest in planning for and The DEIS should discuss possible negative impacts on existing siting of energy facilities in the Coastal Zone which-arenecessary to meet permitting programs if the CZM Plan is adopted as proposed. The existence requirements which are other than local in nature. The DEIS is required to of substantial legal questions concerning the validity of the CZM Plan and discuss these negative impacts of the CZM Plan. -88- (1) The Secretary's Regulation. The DEIS accepts uncritically and at face value the proposed regulations, the operative authority for reviewing applications for regulation of the Secretary of Environmental Affairs (CZM Plan, pp. a-21 permits. Exceptions to the CZH Plan will be permitted only if the to a-67) and assumes that the regulation will have no negative impacts. Plan requires an action to be taken which is "impermissible at law," Some legal inadequacies of the Secretary's regulation have already or the Secretary determines that more substantial and compelling been noted in the preceding general discussion of negative impacts of public interests require that the Plan be overridden. CZM Plan, adopting the CZH Plan in its present form. In addition, the following draft regulation, �5.6, p. a-33. The general fallout of illegal legal issues are raised with respect to the Secretary's regulation, all regulatory requirements caused by adopting as a regulation an of which will cause the CZM Plan to have negative impacts which should be 800-page document cutting across approximately forty individual considered in the DEIS: regulatory programs cannot be safely buried by the type of "saving (a) New CZM Standards clause" used in the Secretary's draft regulation. The provisions The DEIS fails to descxibe or consider the impacts of the of the CZM Plan are too complex.and interrelated to be capable of Secretary's regulation on existing regulatory programs within EOEA. isolated determinations of %alidity or invalidity under a saving The CZM regulation to be adopted by the Secretary incorporates the clause. As for the Secretary's override, this procedure is not entire CZH Plan by reference, and directs all EOEA agencies and the authorized by G.L. c. 21A or by any of the individual EOEA permit Secretary to implement the Plan and enforce their law, process regu- statutes. 'The individual permitting statutes provide that decisions latory reviews, conduct program activities, disburse funds, construct thereunder are to be made by the commissioners or other authorities works, supervise the construction of works, or otherwise administer having jurisdiction, not by the Secretary. Review of final decisions their programs in the coastal zone consistently with the CZM Plan. of such agencies is obtained exclusively under G.L. c. 30A, �14, in CZM Plan, P. a-33. Each commissioner within EOEA has agreed in the courts. "Memoranda of Understanding" to adopt as his own regulation this (b) The CZM Plan Cannot Be Adopted by the Secretary as an Enforceable Regulation. regulation of the Secretary, including the entire CZH Plan. CZM The alleged power of 'the Secretary of Environmental Affairs Plan, pp. a-9 through a-18. The Secretary's regulation requires to promulgate the CZM Plan as a binding regulation is principally all EOEA agencies "to apply CZM criteria when they take a lawful based on the provisions of G.L. c. 21A, ��3 and 4. The Secretary action in the coastal zone." CZM Plan, p. a-34. The CZM regulations is authorized by G.L. c. 21A, �3, to conduct comprehensive planning will make the 800-page Plan itself, rather than existing statutes or with respect to the functions of the EOEA and to coordinate the -89- -90- activities of the departments and divisions within the EOEA. The To the extent that the CZM land-use and energy policies are Secretary is further authorized by G.L. c. 21A, 54, to "resolve advisory and unenforceable under Massachusetts law, these policies administrative and jurisdictional conflicts between any such (EOEA) are not binding on federal agencies in issuing federal permits or -agencies or officer; .. . to implement, upon request of any such grants. Despite these serious defects, the DEIS assumes the (EOEA) agency or officer,� programs jointly agreed to by the Secre- enforceability of many of the land-use prohibitions contained in tary and such an agency or officer; . . .to coordinate and improve the CZM Plan without the adoption of any additional Massachusetts program activities involving two or more (EOEA) agencies or legislation. DEIS, p. 11-7. officers . . . (c) Considered as a Regulation. the CZH Plan is officers . . ." The power of "comprehensive planning" is clearly Uncons itutionally Vague. confined to the functions of the office of the Secretary itself. The entire CZM Plan will be incorporated by reference as a These functions do not include the issuance of substantive regula- regulation of EOEA. Included in this incorporation by references * tions concerning land-use planning or energy policy. The are "technical statements . . . descriptive material, analyses of "coordination" of activities does not imply any power of the problem areas or conflicts, regional chapters and other textual office of the Secretary to issue substantive regulations binding discussion." CZH Plan, p. a-33. In addition, the proposed EOEA private parties as to energy and land-use planning. Likewise, the regulation declares that the "State Environmental Policy" (to be power to resolve "administrative" and "jurisdictional" conflicts enforced as part of the CZH Plan) shall include not only certain refers to matters such as manpower and budget priorities, inter-agency constitutional and statutory provisions, but also "Executive Orders geographical boundaries and other such ministerial "administrative" or other statements by the Governor.. ." and statements of environ- and "jurisdictional" matters. and "Jurisdictional" matters. mental policy promulgated by the Secretary of EOEA by "Secretarial The power of the office of the Secretary to implement programs Order." CZM Plan, p. a-29. Jointly agreed to by the Secretary and a line agency upon the request If the CZM Plan is to be considered as a regulation, it must of the line agency is limited to programs that are within the juris- comply with the constitutional standards for clarity and precision diction of the line agency to begin with. Neither the office of the applicable to regulations so that due process is afforded-to Secretary nor any agency within the EOEA has the power to establish parties to adjudicatory or other proceedings. -A statement such as land-use or energy-siting controls through a system of permissible "The Implementation of alternatives such as solar, wind and solid- or priority uses. The CZM Plan contains several examples of such waste energy recovery systems would reduce our dependence on the more systems. See Policies 1, 2, 8 and 17 of the CZM Plan. -91- -92- traditional fossil fuel and nuclear forms of energy" (CZM Plan, adoption under G.L. c. 30A. The adequacy of the DEIS must be p. 229) is not the type of material which may be used in a questioned if no regulation, or some significantly different regulation. The CZM Plan contains a multitude of such provisions regulation, is in place at the time of program approval. It is with an equal number of unresolved contradictions. not possible to address comments to significant aspects of the CZM Items such as "statements by the Governor" or "statements of Plan if implementing regulations are not formally proposed. environmental policy promulgated by the Secretary of Environmental (2) Conflict Resolution. Affairs by Secretarial Order" cannot be incorporated into regula- The conflict resolution procedure is described in Chapter 4 of the tions without specific references to the statements or orders being CZM Plan and in Section 6.20 of the draft regulation of the Secretary of incorporated, nor without a rule-making proceeding under G.L. c. 30A Environmental Affairs, pp. a-37 to a-40 of the Plan. We agree that the providing for notice to the public of what is being adopted. The Secretary has the power to resolve jurisdictional or administrative con- CZM Plan here attempts to make an end run around legal procedures flicts between EOEA agencies under G.L. c. 21A, 52 and 3. We do not which are designed to protect the public from arbitrary or dicta- agree, as the DEIS and CZM Plan suggest, that the Secretary has authority torial administrative actions based on standards which have not been under the conflict resolution procedure to interfere in or direct the formally incorporated into an agency's published regulations. result to be reached in a permit proceeding before a line agency on the Governmental officers cannot make up the rules as they go along. ground that the line agency purports to act inconsistently with the CZM "Regulation" is defined inGC.L. c. 30A, 51(5), as ";the whole or Plan. See CZM Plan, draft regulation, �5.6, p. a-33, and Commentary, part of every rule, regulation, standard or other requirement of p. a-37. Such a result would be contrary to the enabling legislation of the line agencies, and to the state Administrative Procedure Act, general application and future effect . . . adopted by an agency to implement or enforce the law enforced or administered by it." G.L. c. 30A, which governs review of administrative decisions. For a Every such regulation must be adopted by an agency only after more detailed discussion of this problem, see the Memorandum dated notice to tihe public under CG.L ..................... ..... c. 301A, ��2 and 3. May 6, 1977, by Patrick J. Kenny, pp. 6-8. The DEIS does not adequately (d) The Secretary's Regulation Has Not Been Proposed consider the extent of the proposed conflict resolution or its legal basis (d) The Secretary's Regulation Has Not Been Proposed under G.L. c. 30A. *under .L. c. 30A\. (3) Performance Evaluation. The DEIS assumes that the Secretary's regulation will be No comments on this subsection. promulgated prior to program approval. To date, no formal action has been taken by the Secretary to propose any CZM regulation for -93- -94- a party, appear as an expert witness, or comment upon adjudicatory (4) Memoranda of Understanding Within EOEA. proceedings which are before the commissioners of EOEA agencies. The DEIS fails to reflect that Memoranda of Understanding, unless Although G.L. c. 21A, ��2 and 4, gave the Secretary many powers, they are publicly promulgated as regulations under G.L. c. 30A, �4, are no one of these powers encompass intervention or other type of unenforceable. As discussed supra, p. 91, "Regulation" is defined in appearance on the merits of an adjudicatory proceeding before one G.L. c. 30A, �1(5) as "the whole or part of every rule, regulation, of her departments. The Secretary has the power to appoint and standard or other requirement of general application and future effect... discharge her commissioners (G.L. c. 21 A, �7). An appearance adopted by an agency to implement or enforce the law enforced or imple- by the Secretary on the merits in an adjudicatory proceeding before mented by it." Every such rule, regulation, standard or other requirement the EOEA commissioners or departments could only be interpreted as a must be subjected to G.L. c. 30A procedures prior to use by an agency in direction of the outcome of the case. Appearances by the Secretary an adjudicatory proceeding. Lewis-HMota v. Secretary of Labor, 469 F.2d on the merits are particularly inappropriate in the case of energy 478, 482 (2d Cir. 1972); City of New York v. Diamond, 379 F. Supp. 503, facilities. If the EOEA agency were to deny the permit for an 518 (S.D.N.Y. 1974) ("The fact that it is entitled 'Memorandum to Heads of energy facility, the company proposing the project could appeal to All Agencies' does not make it any the less an exercise of the administra- the Energy Facilities Siting Council, of which the Secretary is a tive rule-making power..."). voting member. The Secretaty's position on the Siting Council is (5) Coordinafive Functions of Coastal Zone Management. judicial innature, and it is inconsistent with that position for (a) State CZM May Not Intervene as a Party. Appear as an Expert Witness. or Comment on the Merits of EOEA the Secretary to take a position on the merits of a proceeding Actions. which could come before her as a judge. A judge in a court of law According to the DEIS, p. 11-47, and the CZM Plan, the would have to disqualify himself as to any proceeding in which he Massachusetts CZM office will have the power to appear as an expert participated as an advocate. American Bar Association, Code of witness, to intervene as a party, dr to submit its comments on any Judicial Conduct, Canon 3 (C) (1972). EOEA action affecting the Coastal Zone. The Massachusetts CZH (b) The DEIS fails to Recognize and Discuss the fact that Office has no statutory authorization. As it is currently organized, The Secretary and the Office of Coastal Zone Management lack power to appeal decisions of it is merely a separate function of the Executive Office of EOEA agencies to the courts. Environmental Affairs. From an organizational standpoint, the The Secretary's regulation, in Section 6.31, p. a-41, purports Massachusetts CZM Office speaks for the Secretary. We do not believe to grant the Massachusetts Office of Coastal Zone Management the the Secretary of Environmental Affairs has authority to intervene as ;.a3 -96- -95- (6) Memorandum of Understanding with the Energy Facilities Siting Council. power to appeal decisions of other EOEA agencies to the courts. The DEIS accepts uncritically and without commentary as to possible According to G.L. c. 12, D3, the Attorney General is the sole negative impacts the proposed Memorandum of Understanding with the official empowered to take appeals from administrative decisions, Energy Facilities Siting Council. or otherwise to represent the Commonwealth or its agencies in Some aspects of the Siting Council Memorandum of Understanding litigation. Cf. G.L. c. 12, �11D, specifically relating to environ- are not authorized, either because no statutory authority exits upon mental protection. In Secretary of Administration and Finance which to base the provisions, or because of conflict with existing v. Attorney General, Mass. Adv. Sch. (1975) 665, the Supreme statutory authorities. In addition, the DEIS and the CZM Plan contain Judicial Court held that individual agencies could not represent contradictory statements about the role of the Siting Council in themselves before the courts in obtaining judicial review of actions implementing the CZM Plan which should be clarified. of other agencies nor could the Attorney General be forced to take (a) Memorandum of Understanding, Responsibilities an appeal by an agency. The court stated: Section, Para. 2. "In consolidating all the legal business of the Commonwealth In paragraph 2 of the "Responsibilities" section of the in one office, the Legislature empowered, and perhaps required, the Attorney General to set a unified and consistent legal policy Memorandum of Understanding between the Siting Council and EOEA, for the Commonwealth. It would defeat this apparent purpose to allow an agency head, representing narrow interests and with a the Council has agreed to recognize the final coastal zone manage- limited scope, to dictate a course of conduct to the Attorney General, and in effect to destroy any chance of uniformity and ment plan, as promulgated by the Governor, as a "statement of the consistency." Id., p. 677. health, environmental, and resource use and development policies The Secretary's regulation in �6.31 proposes the ultimate admin- of the Commonwealth." CZM Plan, p. a-19; this statement is echoed istrative absurdity: permitting one agency to sue another agency by para. 6 of the DEIS on p. 11-47. Because no G.L. c. 30A within the same Executive Office. Conflicts between EOEA agencies proceedings have been commenced to adopt the CZM Plan as a regula- are political or governmental questions to be resolved under tion, even at the level of the Secretary, and because the CZM Plan G.L. c. 21A and the CZM Plan, not by the courts. cannot, in any event, meet the legal standards applicable to (c) Appointment of CZM Coordinators. regulations, the CZM Plan itself will not constitute a regulation To the extent that CZM Coordinators of individual agencies adopted by a state agency at the time of federal approval. The involve themselves in the types of activities discussed above in Siting Council's regulations require that the Council recognize paragraphs 5(a) and (b), the use of CZM coordinators would also be unauthorized. at~~~~~~~~~~~~~~~~~~~~~~~~~ -97- -98- under G.L. c. 164, �693, only those policies as have been stated authority) that she has the authority under G.L. c. 21A, �2, to set in the state constitution, statutes, and duly promulgated rules and policies for matters unrelated to environmental protection. Nor regulations of agencies. EFSC.Regulations, Chapter G. Rule 62.9(3). can the Governor's approval of the CPH Plan elevate the Plan to regulations of agencies. EFSC.Regulations, Chapter G, Rule 62.9(3). the level of a statement of health and resource use and development Unless the CZM Plan constitutes one of the above authorities for policies. The Governor's approval does not add to the legal status policies, the Siting Council will be unable to use the Plan as a of the CZM Plan according to the Siting Council's published source of policy in rendering decisions. regulations; his approval does not make the CZM Plan a constitut )n, There is an even more basic flaw in paragraph 2 of the "Responsibilities" portion of the MOU. The statement is made that statute or duly adopted rule or regulation as required by Rule 62.9(3) of the Council's regulations. the CZM Plan is agreed to be a statement not just of environmental (b) Memorandum of Understanding, Responsibilities protection policies, but also of health and resource use and Section. Paragraph 3. Section, Paragraph 3. development policies. Under G.L. c. 21A, �2, the Secretary of As stated in Paragraph 3 of the Responsibilities section of Environmental Affairs is not empowered to establish substantive the MOU, and on p. 11-47 of the DEIS, the Siting Council has agreed policies. Even if the Secretary has the power to adopt a policy to act consistently with the policies of the CZM Plan. This which must be considered according to G.L. c. 164, �693, by the statement of the DEIS and the MOU neglects to take into account Siting Council, such policies must by virtue of the Secretary's the Siting Council's statutory obligations not only to determine office and the preamble to G.L. c. 21A, �2, be limited to environ- that proposed electric and gas facilities are consistent with mental protection policies. Other agencies of the state are current health, environmental protection and resource use and charged with responsibility for health and resource use and development policies as adopted by the Commonwealth, but also to development policies. See, for example, Acts of 1975, Ch. 807, determine that such facilities "are consistent with the policies the Massachusetts Growth Policy Development Act, charging a special stated in section sixty-nine H jof G.L. c. 164] to provide a legislative commission with developing, in conjunction with local necessary power supply for the Commonwealth with a minimum impact growth policy committees and the Office of State Planning, a report on the environment at the lowest cost". G.L. c. 164, �69J. The on growth and development for Massachusetts, including recommends- act does not direct that primary consideration be given to any tions for possible legislation. The Secretary of Environmental particular policies in derogation of the other statutory factors, Affairs cannot presume (particularly in the absence of legislative t.e., power needs and cost impact. The requirement placed on the Council to act consistently Evaluation of Inland alternatives will make the entire state with the CZM Plan is beyond the Council's authority in another subject to review under the CZM Plan, and the CZM Plan will important respect. The Council must be free within its general definitely have impacts on inland areas. These impacts are mandate to balance power needs, cost and environmental impacts to not discussed by the DEIS. determine which among many conflicting specific "policies" most nearly reflects the over-all policy of the Commonwealth. The CZM Section of the MOU is that the Council recognize the standing of Plan may conflict with some other health or resource use and the State Office of Coastal Zone Management in its adjudicatory development policy. The Council cannot bind itself in advance to proceedings. As noted above, the state CZM office Is organized follow the CZH Plan to the derogation of any and all other con- without any statutory authority as a branch of the office of the flicting state policies. To do so would mean that the Council was Secretary of Environmental Affairs. The CZM office has no circumscribing its statutory discretion. An administrative agency powers or Identity apart from those of the Secretary. it would may not alter by regulation or agreement the statutory standard violate ethical principles applicable to judicial officials under which it decides cases. Shea v. Vialpando, 416 U.S. 251 (1974). (see p. 94 supra) to permit personnel within the Secretary's office The MOU in Para. 3 of the Responsibilities section and the to intervene as parties or otherwise appear as advocates before DEIS on P. 11-48 state that the Council will adopt regulations the body on which she sits as a voting member deciding cases. requiring the consideration of at least one inland site for (c) Memorandum of Understanding, Responsibilities Section. Paragraph 4. coastal energy facilities in accordance with the CZM Plan. The According to Paragraph 4 of the MOU's Responsibilities DEIS on p. 11-48 garbles the statement of MOU (Cf. p. a-20 section, the Siting Council has agreed to give prime consideration of the Plan, which omits any mention of coastal dependency). to environmental impacts in "areas of critical concern." These areas may include almost any part of the Massachusetts coast, See Secretary's draft regulation, CZM Plan, pp. a-42 and a-43. -101- (d) Interference with Siting Council's Power to The MOU makes a distinction as to such areas which have been Override EOEA Permit Denials restricted tinder the Wetlands Restriction Act, G.L. c. 130 �105, and those which have been designated but not restricted. Those portions of the Memorandum of Understanding by which Designation without restriction does not constitute a constitution, the Siting Council agrees to recognize the CZH Plan as a statement law or regulation which the Council must recognize. Moreover, of health, environmental, resource use and development policies the Siting Council is empowered to grant certificates of of the Commonwealth, to act consistently with the policies of the environmental impact and public need under G.L. c. 164, �69K, to CZM Plan, and to give prime consideration to environmental impact any gas or electric company which is prevented from building if an energy facility is to be sited in a critical area of environ- a facility because of "disapprovals, conditions or denials by a mental concern, all could be used by opponents of energy facilities state or local agency or body"; restrictions imposed on a to attempt to block a Siting Council override of an energy facility Wetland by the Department of Environmental Management would which had been denied a permit1y EOEA agencies on the ground that constitute "conditions" which may be overridden by the Council. construction of the facility was inconsistent with the CZM Plan. Finally, as noted above in connection with the discussion of The Council has been granted authority to issue certificates of para. 3 of the Responsibilities section of the MOU, the Council environmental impact and public need under G.L. c. 164, �69K, to must evaluate planned facilities according to each of the any gas or electric company which is prevented from constructing statutory standards provided by law. Just as the Council cannot a facility because of "disapprovals, conditions or denials by a give overriding precedence to one statement of policy, it cannot state or local agency or body". There is no statutory exception give prime consideration to environmental impacts in a to the Siting Council's power to override in the case of electric particular area at the expense of consideration of the need for or gas facilities. The Siting Council is thus able to override power and cost impacts. provisions of the CZM Plan, as well as decisions of EOEA agencies made on the basis of EOEA interpretation of the CZM Plan. The CZM Plan and the DEIS should clearly state the full extent of the Siting Council's powers under Massachusetts law. -103- 104 (7) Martha's Vineyard Conmmission (e) Failure to Consider Alternatives The proposed Memorandum of Understanding with the Martha's Vineyard Commission should be available for comment. Tile DEIS should consider alternatives to the Memorandum of Understanding with the Siting Council. The Siting Council has (8) Public Participation (Part II, Chapter 4, full authority under Massachusetts law to grant or deny permission Section D(8), (9) and (10)) to construct major energy facilities everywhere in the state, Existing public participation mechanisms have proven inadequate including the Coastal Zone. One alternative to the MOU would be to address the legal and economic concerns raised by significant seg- for the Secretary of Environmental Affairs to make a finding, as ments of the business community in Massachusetts with respect to the part of the CZM Plan, that the Siting Council has adequate authority CZM Plan. In fact, the type of "public participation" used to date in to perform for energy facilities the regulatory functions required preparing the CZM Plan has not provided adequate opportunities for of state government under the federal Coastal Zone Management Act, participation not only to the business community but also to the and that general authority to implement and enforce the CZM Plan Massachusetts legislature. Advisory groups which purport to represent with respect to energy facilities is accordingly delegated to the the public at large, including business or environmental groups, do Siting Council. The CZM Plan takes a similar approach with not provide adequate substitutes for direct participation by individual respect to the Martha's Vineyard Commission (DEIS, p. 11-48, citizens or interest groups. Such advisory groups are even less Item 7). The proposed Rhode Island Coastal Zone Management Plan suitable forums for legislative participation. The public participa- uses this approach to regulation in a number of instances. Wording tion process utilized to date by the Massachusetts Office of Coastal the CZM Plan in this manner would not unlawfully restrict the Zone Management should be thoroughly revised prior to plan approval Siting Council's jurisdiction over energy facilities, and would to insure that no important segment of Massachusetts opinion is denied eliminate the unclear and ill-considered language of the MOD. a voice in decision-making because it is submerged in general advisory A second alternative which should be considered is a clear groups. statement that the CZM Plan and its policies are to be considered to be only advisory in nature by the Siting Council. This (9) Federal Government Annual Review (DElS. p.l1-49) approach would also eliminate the needless restrictions on the The Federal annual review procedure should include specific detailed Council which are imposed by the MOU. mechanisms for all interested Massachusetts citizens to participate. -106- -105- How can the DEIS suggest on page II-51 that local communities VIII. COMMENTS ON PART II. CHAPTER 5, OF DEIS: LOCAL COMMUNITIES know the extent of state activities? The DEIS fails to describe or analyze the federal/state relationship, the possible conflicts or how these may be The Massachusetts CZM Plan contains new standards, which are resolved. The citizen advisory councils are not described. It is unclear created in the policies contained in the Plan. These new standards, how these are constituted and how they will make their funding decisions. priorities and biases are proposed to be enforced through existing laws and The DEIS is very brief on how this is accomplished. So called "statewide funding. The DEIS fails to analyze the effects of these new standards both interests" are not identified or discussed, nor are alternative methods of ecologically and economically. decision-making considered. Environmental and economic impacts of each This Chapter misstates the power which this Plan will have over suggested alternative should be included in the DEIS. local development decisions. With state funding, state permitting, federal In the discussion of effects on local communities, there is no permitting and federal funding all affected by the Plan's policies, there mention of economic effects. For example, later in the DEIS there is a is a serious misrepresentation of the local powers remaining after the Plan reference to revenue loss due to land restrictions. Why doesn't the DEIS is approved (Chapter 5, page 11-50). discuss this fact in this section? The DEIS here ignores its responsibility The Coastal Zone Management Act purports to be a balanced statute to describe and analyze. It is purely a sales tool to dangle the carrot for both ecological and economic interests. It is interesting to note in the of assistance funds but fails to adequately address the negative aspects Massachusetts CZM Plan that of the nine eligible categories for technical of the plan including the loss of local controls and effects on the tax assistance only one is within the concerns of a non-EOEA agency. Clearly base. this testifies to the environmental bias of the CZM Plan. The DEIS fails The overview section must include a discussion of program funding. to address this defect. It fails to describe alternate agency responsibility Providing a general accounting of where the money is coming from and where for the CZM Plan. Of the projects available for funding under the Plan, the it isgoing would provide a sense of the priorities which will be placed bias in the policies toward environmental concerns predispose how financial on various activities. Local funding criteria and priorities should be assistance will be allocated. Why, if this is a State Plan, is the Secretary set forth for discussion and public comment. of Community Affairs not allowed to receive federal CZM funds and use them Specifically the introductory sentence of this section of the to help local communities? DEIS is both inaccurate and misleading. The plan, in fact, includes new law and permitting. New or specialized regulations are to be promulgated -107- -108- During the most critical first year implementation phase "at least three over and above presently existing regulations. For example Chapter 111, persona will be available" (DEIS page 11-50) "on a rotating basis". This Section 127, of the Massachusetts General Laws enables the State Sanitary/ means that each of the approximately 75 municipalities can look forward Environmental Code. No mention is made there of any power to promulgate to sharing such aid with 24 other towns and cities. What of the town's a specialized code for areas proximate to critical areas under the CZM plan. legal exposure where such cursory technical aid is taken and serious local However, the plan acknowledges the intent to have DEQE promulgate such a decisions are based on that aid? This point must be treated in the DEIS. specialized code under the umbrella of Title V (see page 92 of the CZM plan). The aEIS also fails to take cognizance of the inherent delays in By definition the promulgation process will lend to these new regulations the Massachusetts permitting process by limiting the maximum time period the force and effect of law even where they are not specifically enabled for funded projects to one year. (See DEIS 11-51). This is funding based by statute. on a hollow promise, with little chance for meaningful local aid. This As to new or increased permitting, the CZM plan (at page 366) point must be more fully examined in the DEIS. includes an offhand comment concerning a process of issuing a Certification Statement of Consistency. No mention is made in the DEIS of how this is to be accomplished. Who is to make such a determination and what are the parameters of such a certificate? What is to be the treatment of developments of local concern? Will they require certification as well? This seems to indicate that even the unenforceable policies will be at least partially enforceable via this certification process. (See page 366 of the CZM Plan, "other citizen action"). This reference should reflect the fact that section 7.11 of the draft regulation (a-55 of the plan) requires a consistency certificate only for federal actions, or is it the intent to certify all projects ? In addition, no discussion is included in the DEIS concerning the practical effects of the contemplated level of technical assistance to be made available to local municipalities. of the Plan. It fails to present the questions raised by the conflict of IX. COMMENTS ON PART 11, CHAPTER 6, OF DEIS �208 planning and CZM.' Finally, the Draft Statement does not present options The DEIS on page 11-56 incorrectly states that interstate gas and alternatives to resolve this conflict. For example, �208 is not biased, facilities are reviewed by the Energy Facility Siting Council. The failure as CZH is, against structural solutions. of the Plan and E.F.S.C. to control interstate gas facilities is mirrored in the areas of oil pipeline review. Additionally, the Siting Council does not have total control of the siting of oil refineries vis-a-vis local zoning. Since the Plan relies on the Council for addressing the National need for energy, its failure to discuss the cumulative impact of all the applicable restrictions in the Plan on energy facility siting renders the Plan and the DEIS inadequate. On pages 11-60 and 11-61, the DEIS fails to give page numbers for reference in the Plan. On page 11-61, the DEIS discusses Transportation. The DEiS fails to describe how maritime shipping is given high priority. Indeed, the Plan gives a bias to marine-dependent uses, but this can only be achieved by restrictive and negative procedures. For example, the Plan does not provide a mechanism for low interest loans for such development. On page 11-61 (5) the DEIS attempts to describe the National Interest regarding coastal waste treatment plants. Except for a list of "approved" plants already funded in 1977, all future treatment plants proposals must both respond to CZM Policies and will lequire amendments to the Plan. The Plan has policies which restrict sewer extensions. The problem arises where these CZH policies may conflict with planning deter- minations under P.L. 92-500, �208. The DEIS fails to present this aspect X. COMMENT ON PART 1I. CHAPTER 7 OF DEIS: It should also be acknowledged that the public hearing process HOW THE MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM WAS PREPARED is of prime Importance because it is only in such a process that problems can be identified in their totality. Even now adequate commrent is Citizen participation in the preparation of the Massachusetts impossible because of the absence of regulations by EOEA and agencies. CZM Plan was inadequate. The Plan Is of statewide importance, but there was no attempt to include citizens or interested groups from non-coastal communities; in other words the views of "inland" Interests were not solicited even though they would be seriously impacted by the Plan. A significant portion of the Massachusetts citizenry was excluded from the process. in addition non-resident owners of land in the coastal zone were not invited or had little opportunity to participate in the process. The DEIS and the Plan should specifically acknowledge that citizen participation and citizen desires are no substitute for decision masking by public officials and agencies within their statutory mandates. Citizen participation is only a factor to be considered and public officials and agencies are free to disregard citizens' advice if to do so is required in light of their public responsibilities and obligations. It is also our understanding that local citizen groups did not generally concern themselves with formulating the basic policies, but rather involved themselves with Identifying specific problems In local areas. The DEIS should explain the degree to which such groups were consulted on the basic policies and any changes caused thereby in the development of the Plan. -114- -113- On page 111-4, first paragraph on the page, the DEIS attempts XI. COMMENTS ON PART III CAP However, t fails o accomplish PRoBABLE IMPACTS oN TiHe fVIRONMENT to summarize the environmental impacts. However, it fails to accomplish this goal. This paragraph merely re-states the Plan and how it will be The preamble to Part III on page III-1 correctly states that phased into effect. What and where are the impacts? Will critical significant environmental, social and ecomomic impacts will result from ecological areas suffer as a result of this delay? Why is there a delay Federal approval. This is absolutely true. One wonders, however, how when the federal government spent so much money in Massachusetts for three serious the drafters of the DEIS are when only a small fraction of the years to effectuate the Federal Coastal Zone Management Act? Finally, document considers these impacts. The brevity of this area in the DEIS, where are the alternatives to avoid the delay? These questions remain as contrasted to the description of the Plan and the "sell" Job presented unanswered because the DEIS fails to assume its responsibilities under in all the other sections, challenge the National Environmental Policy NEPA. The DEIS constantly re-states the Plan in order to Justify its Act. Clearly, the DEIS is meant to sell the Massachusetts CZH Plan, not existence, not to describe the Plan's impacts. The failures of the DEIS to analyze its impact and present alternatives to federal action. testify to OCZM'a pre-disposition to approve the Mass. Plan. The DEIS on page II-1 in the last paragraph states "...the In Part II, Chapter 1 (B) the DEIS fails to state what types of State's management authorities will be administered differently..." development will be shifted inland. Assessments should be made on the (Emphasis added). This is particularly awkward given the statements on effects this inland development will have on transportation systems, water pages 11-50 and 11-7 to the effect that no new laws or regulations are systems, sewer systems, and ecological areas. Might not this effect run created. The DEIS does not resolve this conflict. Which is it -- are counter to the State's desire to direct development into urban centers? there new laws., standards and regulations that are "administered How does inland development and loss of tax revenues affect coastal cities differently" or is the CZM Plan a mere restatement of existing laws, and towns? Won't some development move elsewhere, out of the state? Where? standards and regulations? How much? Will this affect unemployment? Welfare? The DEIS fails to adequately identify the statutory reference In the "New Development Impacts" section beginning on page 111-4, for much of the program. In discussing the areas of preservation, it fails how is it possible to say development will continue when it is being to present alternatives and their impacts. restricted by the Plan? Isn't this a contradiction on its face? In the On page 111-3, second paragraph, the last sentence is nonsense. first paragraph of this sub-chapter, it says, "and permitted subject to There is, however, an indication that some developments will not be certain conditions...near designated recreation or historical sites," addressed. What are these developments? If developments that are not What state permit law allows or prohibits actions near historic sites? addressed are unknown, what is their range? Are there any examples? What is the economic and environmental impact of such a requirement? ~~~~~-1lS~~~~~~~~~~~~~- ~-116- policy to give highest priority to marine-dependent uses. The effect of The last paragraph on p. 111-4 does not accurately describe the other side of the coin. For example, 79% of the coast is restricted, and this priority is to zone ports and harbors. The priority is supposedly even the 21% that is remaining has conditions that restrict. Why doesn't enforced with state permits. The owner is burdened -- solely by the CZM Plan. The maritime dependent use is established through industry spokesmen. the DRIS list and analyze the restrictions that affect the 21%? In The coastal owner in this situation sustains a burden (not created by the previous sections of the DEIS (see, II-6, last sentence and 11-50, first Legislature) and his rights are redistributed in favor of shipping and paragraph) it was stated that local government retained all its land-use fishing interests. The effects of this bias should be precisely described. powers. On page III-4, the last sentence states "Many decisions...will be made at the local level..." The word "many" implies not all. The DIS In the l a st paragraph of "Coastal wner's" page -6, the is hopelessly vague. How long is the short run? What Justification is here admits a loss of local controls. This loss of local control should be i s hopelessly vague. How long is the short run ? What justi on is there to say the short term burdens are balanced by promoting a quality precisely described with alternatives. The first paragraph of page 111-5 suggests a coercive method of environment? In the Section on "Local Government Budgets" page III-6, why directing growth. Why doesn't the DEIS refer to this attitude in the doesn't the DEIS list the amounts of CZM monies that will be available earlier section on local impacts? There all the DEIS speaks about is for each city and town and the criteria for disbursement? Why doesn't financial assistance. Here the DEIS reports that localities will be the DEIS admit that some Coastal Zone Management Act monies are loans encouraged by foreclosing options. The direction of development into already developed areas raises questions concerning the Clean Air Act, areas of tha t must be repaid What are a community's liabilities? How long is non-attainment and non-deterioration. What is this relationship? What the "long term" for recovery of public invetments The DEIS should state in this section how local development will be constrained. Reading effect will it have? Ecologically? Economically? Socially? earlier sections, the DEIS suggests that local development choices are In the Ports and Harbors sub-section on page 11-5, the DEIS fails unaffected (see p. II-6, last sections and p. II-50 first paragraph). to describe how redevelopment funds will be directed into these areas The splitting of these effects confuses the DEIS and clouds the real when EOEA has no funding mechanism to accomplish this goal? In the same picture as to the effects of the CZM Plan. This should be clarified. sub-section, the DEIS admits that "certain projects" can be permitted In the section "State Institutions" on page 11I-6, the DEIS without state review. What "certain projects"? Is there a gap in the fails to adequately describe the economic effects of "new review steps". State Plan and how it complies with the Federal law and regulations? The DEIS does not discuss private sector effects either short or long term. In the sub-section, "Impacts on Coastal Owners" page 111-5, the DEIS is inaccurate. Are owner's rights redistributed? The Plan has a "-� 3q - I t7- -118- XII. CORMENTS ON PART Ill, CHAPTER 2, OF DEIS: What impact will this have on firms that are considering Massachusetts for IMPACTS ON EXISTING AUTHORITY future locations? (Incidentally, how can waterways have "expanded responsibilities" when no new laws are created?) The preamble paragraphs on p. 111-8 suggest that existing laws In the overall area of Environmental and Economic Impacts, the will be intensified and under CZM they will be implemented "differently". DEIS fails to present alternatives --- alternatives to the overall cz Now is this In concert with statements earlier in the document (see, pages Plan as Massachusetts filed it, and alternative viewpoints of specific 11-50 and 11-6) that no new laws or regulations will be created? policies or effects of the Plan. In addition, the DEIS fails to analyze alternatives. These failures are so consistent as to give the DEIS the A. PART III, CHAPTER 2, SECTION A appearance of being one-sided and merely justifying the Plan. Thus the The DEIS on page 111-9 inaccurately describes the relationship DEIS fails to satisfy the disclosure portion of the NEPA. between the Restriction Act and the Protection Act. The Legislature did not intend two levels of protection for the same ecological area, as the DEIS would have the reader believe. In fact, the Legislature enacted two laws for two degrees of areas. The Protection Act is not a first level attempt at restriction. The DEIS improperly suggests that the Protection Act should be utilized as a Restriction Act. This view would prejudice the local commission's review, because there would be an avoidance of project analysis and a bias favoring the natural ecological system. The Legisla- ture did not intend such a process. If they did, only one law would have been enacted. The rate of restriction described by the DEIS on page 11-9, first paragraph, is overly optimistic. It took twelve years to restrict 45% of such areas along the coast. The federal monies proposed for the CZM Plan do not seem sufficient to restrict the remaining 55% in three years. The DEIS fails to present funding levels so that the reader is assured as to the accuracy of the rate of restriction. In view of the On page III-11, second paragraph, the DEIS overstates the power requirement for matching state funds, the DEIS does not describe any of the Wetland Protection Review Board, its mandate and its time table for effect on inland programs resulting from a priority use of state funds for action. No proposed regulations have come from this Board as of November, coastal communities. This includes both coastal wetlands and wetlands 1977. In addition, the DEIS in this paragraph wrongly asserts that within the 100 year flood area. regulation will determine in some fashions the "permissibility of particular The DEIS on page III-9 makes only a passing reference to property uses". The Wetland Protection Act is project specific, not site specific, owners who have their land restricted. The DEIS is deficient in this area. and does not permit regulations to be promulgated that effectively create Is the loss by an owner in "profits" or is it in "value" of the land? permitted and prohibited uses. In the same paragraph, the DEIS fails to What are the effects on value losses for tax revenue purposes? This area list the policies that are presumed to be implemented by the Wetland is very deficient in its analysis of the effects of the restriction programs. Protection Act. What are they? Are any outside the parameters of the In particular, it dBes not indicate that approximately forty suits are statute? The reader is unable to tell from the DEIS. There is no analysis pending in Superior Court concerning Wetlands Restrictions. What are of the social or ecomomic impacts of this law, particularly in regard to these costs? What happens to the CZM Plan if these suits are successful? private land owners if the CZM Plan is approved. What happens to the restrictions? Will CZH pay for the takings? C. PART III, CHAPTER 2, SECTION ON WATERWAYS B. PART III, CHAPTER 2, SECTION B There is no discussion in the DEIS of irrevocable permits issued The first sentence of this section improperly states the law. by the Legislature. How does the CZM Plan affect these permits and licenses? Where in the Wetland Protection Act did the Legislature give local Is the Legislature bound by the CZM Policies? What are the economic affects Commissions authority over areas 100 feet from a 100 year flood plain? of restrictions on granting irrevocable licenses? The statute is only triggered by work on a wetland which "borders...the The DEIS on page III-11 and III-12 should describe the effects of ocean,...or river, stream, etc." (M.G.L. c.131, Section 40. Emphasis priority funding for dredge operations on local communities. Are there local added). At the top of page III-10, the first paragraph, the Plan fails costs incurred if the state funding is constricted? Will this policy and to adequately describe the relationship between the Restriction Acts and ranking affect recreational boating? Where in the statutes concerning the Protections Act (see, Comments to DEIS, Part III, Chapter 2, A). Waterways has the Legislature told the Administrator to give priority to non-structural measures? Finally, the DEIS does not state socio-economic effects of the CZM Program on waterways decision making. should assess this lack of authority. Has the Secretary of Transportation D. PART III, CHAPTER 2, SECTION E. ENERGY FACILITY SITING COUNCIL. approved such statements as the state's "transportation network is virtually See our comments elsewhere on the Energy Facility Siting Council. complete" (DEIS, 11-29). The DEIS does not assess the status of the E. PART III, CHAPTER 2, SECTION F, MEPA Secretary of Transportation and the Massachusetts DPW under the CZM Plan. The first paragraph here fails to alert the reader that the Is EOEA in control of the Transportation Department in the Coastal Zone? Massachusetts General Laws, Chapter 30, Section 62, MEPA impact report The DEIS states that transportation projects require amendments procedure is not a regulatory permit process. It is a disclosure law. to the Plan. Now is this to be accomplished? What are the impacts on The description of Coastal Program Impacts on p. III-15 fails to state highways funds of this delay? how often will the Plan be amended? present the socio-economic impacts, or the effects on the private landowner Are all transportation projects listed? Where is the Northern Avenue Bridge and local municipality. Project for the City of Boston? What are the effects of CZM on whether this Finally, on p. III-16, the first paragraph, the DEIS admits there bridge is moveable or fixed? Finally, is the CZM officer in Massachusetts are gaps in the protection of historic sites. Why isn't this discussed in the only patty who can amend the Plan? The DEIS fails to present a the sections and policy on historic sites? The DEIS should adequately description of how and who can amend the Plan. describe the effects of this gap on protecting historic sites. On page III-19 there is only a brief statement concerning air F. PART III, CHAPTER 2, SECTION GC, APR'S quality. The DEIS should have an analysis of whether the Plan's policy After three years of planning and thousands of federal dollars, of concentrating development runs counter to the Clean Air Act, and its APR's have not been designated. Without these designations the DEIS cannot restrictions on development in non-attainment areas and prevention of adequately describe the Plan. Impacts cannot be assessed unless APR's are significant deterioration. The DEIS must address this very serious problem known. 'This section of the DEIS fails to present or analyze socio-economic and the land-use conflicts that it raises. The DEIS is inadequate in its effects of APR designation or non-designation. In addition, the legal status discussion of the socio-economic aspects of this impact. of APR designation is in doubt. Serious questions have been raised as to the authority for such designation and the scope of its effects. 0. PART III. CHAPTER 2, SECTION H. INFRASTRUCTURE This section of the plan purports to be the most comprehensive method to effect the Plan. It has no statutory references and has not been approved in any fashion by the Massachusetts Legislature. The DEIS -124- -123- XIII. COMMENTS ON PART IV OF DEIS These comments contain many examples of instances in which changes made to existing standards for agency action by the CZM Plan exceed or A. THE FEDERAL ALTERNATIVE conflict with the statutory authorities for such actions. The discussion (1) The Coastal Zone Management Program is not adequately of the Siting Council's relationship to the CZM Plan is one such example. comprehensive to achieve the goals and objectives of the Coastal Zone Management Act It is significant that the concept of coastal dependency, extolled in The shortcomings of the Massachusetts Coastal Zone Management this section of the DEIS (p. IV-2) is stated in these comments to be Program have been addressed in detail in the preceding sections of without basis in many existing regulatory programs, including the EFSC, these comments. The Associate Administrator should withdraw his the Wetlands Protection Act program, and others. initial determination that the Massachusetts CZM Plan is adequately In connection with preparation of the final DEIS, the legal comprehensive in scope to achieve the goals of 5�302 and 303 of the sufficiency of the authorities relied upon for the comprehensiveness Coastal Zone Management Act. of the CZM Plan should be reexamined. Because the "changes to State We agree that the Massachusetts CZM Plan relies for implementation and local institutional arrangements" made by the CZM Plan to achieve on a set of strong environmental protection statutes and regulatory comprehensiveness are for the most part without foundation, the CZM programs already on the books. However, as stated on p. IV-2 of the Plan should be disapproved. DEIS, "the Massachusetts Program makes changes to its present State and (2) Massachusetts Lacks Adequate Legal Authorities to Implement the Proposed CZM Plan. local institutional arrangements..." The main thrust of these comments The federal Office of Coastal Zone Management has made an initial is that these "changes to State and local institutional arrangements" determination that the Massachusetts CZM Plan will be supported by have been opportunistically concocted for the purpose of implementing adequate legal authorities at the time of implementation. On p. IV-3 a CZM Program without adequate regard to limitations of the statutory of the DEIS, it is assumed that "process regulations and 21A regula- authorities for the Program. Although every effort is made in the CZM tions will be in place prior to federal approval." This statement Plan and in the DEIS to downplay the "changes to State and local continues,"...the State will have drafts of all the [key substantive intitutional arrangements", in fact these changes have been necessary program] regulations prior to Federal approval of the Massachusetts because the separate regulatory programs by themselves do not consitute Program". To date, there has been no formal proceeding to adopt any a CZM Program. The CZM Plan changes the standards according to which regulations under the CZM Plan. The legal inadequacies of the draft decisions will be made under existing regulatory programs, substituting the Plan for currently effective regulations. -126- -125- Secretary's regulation have been discussed in detail in our comments on procedures of G.L. c. 30A are first used to make the MOU' effective. Part II, Chapter 4, Sectiont D of the DEIS. No other regulations have There is no shortcut to implementing a regulatory program which dispenses even been distributed informally in draft form. It is totally unreal- with the state Administrative Procedure Act. istic to expect such regulations to be drafted, reviewed, and promulgated Similarly, at the top of p. IV-4 of the DEIS, the DEIS states that within the two months remaining prior to projected federal approval of the the Associate Administrator has determined that the energy policies of the CZM Plan are enforceable because the EFSC must abide by state CZM program. We wish to repeat our position that all regulations to be used to environmental policies. However, unless the CZM Plan is adopted as a regulation, the EFSC will not recognize the CZM Plan as an environmental implement the CZM Plan should be finally promulgated after completion policy under its own Rule 62.9(3). See our comments on Part II, Chapter 4, of public adoption proceedings prior to federal approval of the Plan. Any other course of action can lead only to chaos in the administration Section D of the DEIS. Similarly, to be enforceable, the S iting Council of existing state programs in the interim period, and will also result MOU must be subjected to G.L. c. 30A procedures applicable to regulations. The DEIS recites various disadvantages, chiefly delay, if program in delays and increased costs for applicants for projects in the Coastal Zone. The CZM Plan by itself, without supporting regulations, is a legal approval is postponed to adopt implementing regulations. The DEIS nullity. Again, see the discussion in these comments of Part II, inadequately considers the negative impacts of program approval prior to adoption of all state substantive and procedural regulations. Program Chapter 4, Section D of the DEIS. The DEIS on page IV-3 asserts, ".. . the authority to implement the .......................approval without regulations in place will not only result in a plan Program rests not with the regulations but with the authorities given which lacks adequate authority under the federal CZM Act, but also will the Secretary under Chapter 21A of the Massachusetts General Laws. " create chaos in the administration of state regulatory programs. The Without regulations adopted under G.L. c. 30A, 992 and 3, the CZ14 Plan existence of an unenforceable CZM Plan will complicate approval pro- tcceedings under existing regulatory programs because regulatory authorities may not be used to govern actions or procedures within EOEA or the and intervenors may attempt to use the unenforceable CZM Plan as a guide Siting Council. Moreover, the Secretary's powers under G.L. c. 21A, ��2 and 4, do not embody independent authority to create substantive for actions or approvals. regulatory programs. The Memoranda of Understanding referred to on p. IV-3 of the DEIS cannot be used to govern agency actions unless the regulation adoption -127- -128- B. STATE ALTERNATIVES (3) Consideration by the CZM Plan of the National Interest . in Siting Energy Facilities is Inadequate. This section of the DEIS inadequately explores state alternatives which These comments have already considered the energy facility siting would be less restrictive than the proposed Massachusetts CZM Plan. For aspects of the CZM Plan in connection with its discussion of Policies example, the Secretary of Environmental Affairs could find that the Siting 28-33, and in its discussion of the Siting Council MOU and Part II, Council possesses adequate authority under its enabling legislation to safi- Chapter 4, Section D. We point out here that Rule 62.9(3) of the guard the interests sought to be protected by the CZM Plan, and could delegate Siting Council's regulations requires the Council to consider only complete implementation authority with respect to energy facilities to the those health, environmental protection and resource use and development Council. The system of permitted and prohibited land uses Policies 1, 2 and policies of the Commonwealth as are adopted in the state constitution, 8 could be modified to a system of conditions. Structural solutions to statutes or regulations. As proposed to be implemented, the CZM Plan erosion from flooding could be permitted subject to conditions. We favor will not be such a policy (see item (c), p. IV-5 of DEIS). We also Alternative No. 4 (adoption of regulations prior to program approval), note that the Council has no authority to enforce unenforceable policies Alternative No. 5 (redesign of the boundaries), and Alternative No. 6 (State of the Plan, as suggested on p. IV-6 of the DEIS. The Council does withdrawal of application for program approval and securing of alternate not make policy; it merely looks at existing policies adopted by other funding). We oppose the remaining alternatives because inadequate statutory responsible state agencies. The Siting Council has no authority to authority exists for these more restrictive policies. With respect to bootstrap the CZM Plan into effect if other state agencies would lack boundaries, the discussion of Wetland areas or anadromous fish runs outside independent authority to implement the Plan's unenforceable policies. the road boundary (p. a-3 of the CZM Plan) must be clarified geographically. (4) The CZM Plan Does Not Meet All of the Specific Requirements There is no geographical description of these areas. Moreover, the large of the Coastal Zone Management Act. upland areas (e.g. Manchester, Cape Cod) proposed for inclusion in the The adequacy of the Massachusetts CZM Program with respect to the Coastal Zone should be narrowed to the areas minimally necessary to carry requirements of the Coastal Zone Management Act has been discussed in out the purposes of the Plane See Memorandum dated Hay 5, 1977, by these comments in connection with our review of the Table following Michael T. Gentler, which is an appendix to these comments. page I-4 of the DEIS. The reader should refer to this discussion for our comments on this subject. -130- -129- XIV. COMMENTS ON PART V OF DEIS: PROBABLE ADVERSE XV. COMMENTS ON PART VI OF DEIS: RELATIONSHIP BETWEEN ENVIRONMENTAL EFFECTS WHI~CH CANNOT BE AVOIDED LOCAL SHORT-TERH USES OF THE ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERH PRODUCTIVITY This part of the DEIS properly acknowledges that there will This part of the DEIS does not serve its stated purpose.. It does continue to be unavoidable adverse environmental impacts. not explain the indicated relationship or explain why or how the CZH Plan It should be explained in the DEIS in detail why it is asserted It should be explained in the DEIS in detail why it is asserted ill have the indicated effects. The bottom paragraph on p. VII-1 states that the effects of the Plan's implementation wiil on the whole, be that the effects of the Plan's implementation will, on the whole, be certain conclusions, the basis for which have not been explained in the DEIS environmentally beneficial. The environmental impacts of activities vhich or the Plan. or the Plan. would because of the Plan be conducted inland or in other states should be The enhancement of long-term productivity, i.e., of economic She enhancement of long-term productivity, i.e., of economic analyzed and compared to the impacts of such activities in coastal areas. improvement and opportunity, is not adequately provided for in the Plan, The "very wide range of land use decisions" by local governments nor has it been shown that the Plan minimizes "social costs" which accompany should be identified and the environmental impacts thereof discussed in development. These "social costs" may only be transferred elsewhere without the DEIS. ~~~~~~~the DEIS. ~~~~~~~~~~~~any benefit and perhaps at a detriment to the overall social, economic and environmental interests of the Commonwealth. It has not been demonstrated that the Plan "allows growth to continue at present rates" since there is no basis in the Plan or DEIS for concluding that such growth will occur in Massachusetts if growth is excluded from the Coastal Zone. XVI. COMMIENTS ON PART VII OF DEIS: XVIX. COW4ENTS ON PART Vill OF DEIS: IRREVERSIBLE OR IRRETRIEVABLE CONNIUMETS CONSULTATION ANDO COORDIN~ATION This section of the DEIS is almost Incomprehensible. In view of See our commsents on Public Participation. the failure to discuss alternatives infusny sections of the DEIS and the lack of Information on social, economic and environmental effects, it in understandable why this part of the DEIS is so vague. The cZH Plan will, however, have effects on resource utilization and the consumption of resources. It is important that these effects be anticipated and described In the DEIS so that the Iiqplications of the program can be adequately eassessed. -134- -133- XIX. COMMENTS ON THE DEIS APPENDIX XVIII. COMMENTS ON CZM MAPS A. MEMORANDUM DATED AUGUST 23, 1977, RE-ENERGY FACILITIES. Two sets of maps have been included in the CZM Plan. The map Our comments on Policies 28-33 of the CZM Plan, and DEIS, Part II, which is a foldout enclosure to Volume I shows areas of various hues which Chapter 2, Section F and Part II, Chapter 4, Section D cover our principal will be subjected to restrictions of varying degrees under the CZM Plan. The objections to the CZM Plan's treatment of energy facilities, and these second set is interspersed throughout Volume II of the Plan. comments should also be considered applicable to the August 23, 1977, The DEIS does not adequately consider the maps, their accuracy, Memorandum re-Energy Facilities which appears in the Appendix to the DEIS. or their legal status as part of the CZM Plan. For example, what are the We point out that the August 23, 1977, Memorandum, being an unsigned precise boundaries of the variously colored areas on the Volume I map, and "position paper" of the Secretary's office, has no legal status as part of how will the restrictions on development delineated by the different colors the CZM Plan, and does hot constitute a regulation. The Memorandum as a be implemented? Particular attention should be given to the brown-colored whole fails to take into account adequately the necessity for substantive upland areas with septic restrictions. What criteria were used to delineate regulations implementing the CZM Plan to be adopted by EOEA and the EFSC these areas from areas suitable for development? All assumptions and prior to the Plan's assumption of the status of a binding statement of determinations should be enumerated and explained, and the economic and social environmental policy which the EFSC must consider. Without such regulations, impacts of the delineations explained. Finally, is the Volume I map a binding the EFSC cannot act to implement the CZM Plan. part of the CZM Plan, or is it for informational use only? On page 1, the Memorandum states that the CZM Program will evaluate The same questions must be asked for the Volume II maps. What is energy facilities "as it would any facilities", with consideration of their legal status? How was the extent of shellfish beds, areas subject to opportunities for visual enchancement, impacts on recreational opportunities, erosion, and other critical areas determined? What ate the impacts on the water-dependency, etc. This statement fails to take into account the prime Massachusetts economic and social environment of the designations? Were any role of the Energy Facilities Siting Council with respect to energy facilities. alternative procedures for designation considered? Moreover, it does not answer the question, "Are Policies 1-27 binding on the EFSC"? The DEIS and the Plan do not adequately and clearly answer this question. aq3 -135- -136- With respect to items (1) through (4) on pages 3-4 of the Appendix, agencies by Secretarial regulations if they are not already a part of the the Memorandum assumes that many substantive and procedural regulations are agencies' authorized criteria for decision-making. already in place. In fact, none of these regulations have even been formally Much of the August 23, 1977, Memorandum repeats what has been said proposed under G.L. c. 30A. The Memorandum cannot serve as a substitute for elsewhere in the DEIS, and commented upon in connection with such statements regulations in assessing the environmental impact of the Massachusetts CZM in the DEIS. Failure to address these issues again in connection with the Plan, or its compliance with federal OCZM regulations for program approval. Memorandum should not be interpreted as agreement with the Memorandum. There is no guarantee the regulations will be issued as outlined in the Because the procedural and substantive CZM regulations are not Memorandum. in place, and because many portions of the CZM Plan are beyond the authority We disagree particularly with the first unnumbered paragraph on of the State agencies mentioned in the Plan, the federal Office of Coastal page 4 of the Memorandum, since the EFSC may under its enabling legislation Zone Management should find that the Massachusetts CZM Program fails to meet override any denial, condition or disapproval by a state agency, including the requirements of federal CZM regulations on energy facilities. Wetlands restriction orders. Again, the Memorandum on p. 5 assumes, just as do so many portions B. MEMORANDUM OF JULY 29, 1977 RE-SHORELINE EROSION/MITIGATION PLANNING of the DEIS, that a secretarial regulation under C.L. c. 21A will be in Reference is made to our comments on the Coastal Hazards policies. place prior to program approval. No such regulation has been formally The Commonwealth has a choice of a variety of options to solve proposed. Such a regulation, formally available for public comment, should coastal erosion problems. The Plan's preference for a non-structural solution be part of the DEIS review procedure in order to provide for meaningful has not been demonstrated to be the best overall choice since alternatives public participation. The portions of the CZM Plan most likely to generate were not adequately offered or discussed with proper consideration of their comments should not be withheld from the public until after DEIS review has environmental, economic or social effects. The benefits and costs of been completed. alternatives are not examined. On p. 6, the Memorandum fails to take into consideration the fact The references to the Wetlands Restriction, Wetlands Protection that the concept of coastal dependency is absent from the Siting Council's and Waterways programs on pages 3 and 4 indicate that it is the intention enabling legislation, and also from the enabling legislation of the EOEA of the Memorandum's author to bind the administering agencies to the imple- permitting agencies. Such a concept cannot be made binding upon these mentation of these policies. If so, this is an illegal interference with the actions of administrative agencies since these agencies have not con- ducted hearings or adopted implementing regulations, and in fact are 244qyt -137- -138- unauthorized by law to adopt regulations for many of these policies, as is XX. CONCLUSION explained elsewhere in these comments. The amount of funds available for implementation of Policies 10, These comments in their entirety discuss our objections to the ;11, and 12 should be estimated and their planned use discussed in greater substance of the Massachusetts Coastal Zone Management Program, as well detail on page 4 of the Memorandum so that the public can comment on the as the procedural defects under the National Environmental Policy Act and proposed use of such funds. the Massachusetts Environmental Policy Act of the Program approval action. We request that the Commonwealth of Massachusetts withdraw the CZM Plan, and in the alternative, that the Assistant Administrator of the federal Office of Coastal Zone Management disapprove the CZM Plan. APPENDIX A. Memorandum of Law by John J. Desmond, III, Esq. of Boston Edison Company, MEMORANDUM dated April 26, 1977, which relates to treatment of the Energy Facilities Siting Council under the Massachusetts CZM Plan. B. Memorandum of Law by Michael T. Gengler, Esq., Rich, May, Bilodeau & TO: Persons Interested in the Massachusetts Coastal Zone Flaherty, dated May 5, 1977; which relates to Coastal Zone boundaries Management Plan ~~~~~~~~~~~~~~~~~~and to treatment of general permitting statutes under the Plan. C. Memorandum of Law dated May 6, 1977, by Patrick J. Kenny, Esq., of New FROM: John J. Desmond, III England Power Service Company, which relates to the legal authority of the Secretary of Environmental Affairs to promulgate and administer the SUBJECT: Jurisdictional Relationship between the Massachusetts CZM Plan. Coastal Zone Management Program and the Energy Facilities Siting Council D. Draft Legal Commentary on the Massachusetts Coastal Zone Management Plan dated October 17, 1977, prepared by representatives of the Massachusetts Rome Builders Association, the Greater Boston Chamber of Commerce, Boston DATE. April 26, 1977 Edison Company, New England Power Service Company, Algonquin Gas Transmis- sion Company, New Bedford Gas and Edison Light Company and Fall River Gas Company. E. Letter of John J. Kearny of Edison Electric Institute to Michael Shapiro, National Programs Office, Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, dated October 28, 1977, with attached commentary on federal consistency regulations. F. Letter of Robert W4. Knecht, Acting Associate Administrator for Coastal Zone Management, National Oceanic and Atmospheric Administratido, to Mon. George Rogers, Chairman of the Joint Committee on Natural Resources, Massachusetts Legislature (undated). G. Report to the Massachusetts Office of Coastal Zone Management dated July 1 1975, by Alan H. Kaufman, Esq. of the Conservation Law Foundation of New England, Inc. (Note - copies of Appendix G were included in the copies of these comments filed with the Department of-Commerce and the Massachu- setts Secretary of Environmental Affairs, and are also on file with the submitters of these comments). APPENDIX A MEMORANDUM -2- Jurisdictional Relationship between the Massachusetts Coastal Zone Management Program and the Energy Facilities Siting Council responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zoning giving full consid- eration to ecological, cultural, historic, and aesthetic values as Question Presented: well as the needs for economic development. The federal government is to make grants for the purpose of assisting the states in the Are the understandings and commitments evidenced by the development of a management program for the land and water resources Memorandum of Understanding between the Executive Office of En- of their coastal zones. Among the listed requirements of such state vironmental Affairs and the Energy Facilities Siting Council valid, program is the following: enforceable or appropriate as they purport to regulate the siting of energy (gas or electric) facilities in the Commonwealth? (8) A plan process for energy facilities likely to be located in, or which may significantly Background: affect, the coastal zone, including,.but not limited to, a process for anticipating and The Energy Facilities Siting Council (the "Council") was managing the impacts for such facilities established in 1974 (Acts 1973, Chapter 1232) and charged with thehe impacts for such facilities. responsibility of "implementing the energy policies ... to provide On or about March 10, 1977 the Executive Office of Environ- a necessary energy supply for the commonwealth with a minimum im- mental Affairs ("EOEA") and the Council executed a so-called Memo- pact on the environment at the lowest possible cost." The major randum of Understanding setting forth their respective areas of functions of the Council are to (a) review the long-range forecasts responsibility and operating procedures to be followed under the of electric power together with the particular need and location Coastal Zone Management Plan ("CZM Plan"). Both the statement of for facilities and (b) issue a certificate of environmental impact existing agency powers and the listed responsibilities under the and public need for such facility if a local or state agency other- CZM Plan contain inaccurate descriptions of purpose and scope. wise inhibits the construction. With reference to the review of long-range forecasts and their related facilities, the Act specifies Memorandum of Understanding! the type and scope of information to be supplied to the Council, namely, "... expansion, reduction, or removal of existing facilities; The Memorandum's Statement of Existing Powers contains construction or acquisition of additional facilities; a description four paragraphs which characterized the purposes of the EOEA of alternatives to planned action such as other methods of generating, and the Council. The fourth paragraph describes the functions of manufacturing or storing; other site locations, other sources of the Council as follows: electrical power ..., and no additional electric power ...; a de- scription of the environmental impact of each proposed facility ...." 4. Pursuant to its statutory scheme, the EFSC The Council is also to issue a list of guidelines. "A minimum of reviews proposals for major energy facilities data shall be required by these guidelines from the applicant for submitted to it by utilities and other energy review concerning land use impact, water resource impact, air quality companies. In its review process the EFSC must impact, solid waste impact, radiation impact and noise impact." determine whether the proposed facilities are After notice and public hearing, the Council will approve or disapprove consistent with current health, environmental the forecast. Thus, the Massachusetts Legislature has delegated or protection, and resource use and development committed the authority to approve long-range forecasts and their policies as adopted by the Commonwealth. The related facilities to a specific state agency. EFSC may inquire into the need for the facility, the economics of the facility and alternative The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 proposals and sites. An approval from the EFSC et seq.) declares its policy to be the preservation, protection, is required before an applicant commences con- development, and where possible, the restoration or enhancement of struction on any energy facility subject to the the resources of the Nation's coastal zone. In addition, the Act act. is to encourage and assist the states to exercise effectively their a2? -4- providing for cooperation between the EFSC and the The paragraph implies that the Council determination of a facility EOEA on the review of any Long-Range Forecast, as consistent with current health, environmental protection and re- Supplement, Notice of Intention to Build an Oil source use and development policies is mandatory (... the EFSC must Refinery, or Certificate of Environmental Impact determine ....). While the Council's inquiry into the need for the and Fublic Need in which an energy facility is facilities, the economics at the facility and alternative proposals proposed for the coastal zone. Such regulation and sites is permissive or discretionary (... EFSC MM inquire into or bulletin will include provisions .... ). Such phrasing misstates the plain statutory language which requires the Council to determine that the proposed facilities "are i) that all such submissions will be forwarded to consistent with the current health, environmental protection, and the EOEA for comment and review prior to any hearing resource use and development policies as adopted by the commonwealth; before the EFSC; and are consistent with the policies stated in section sixty-nine }I ii) that the EOEA and the EFSC will cooperate on de- to provide a necessary power supply for the commonwealth with a veloping guidelines for data for initial review pur- minimum impact on the environment at the lowest cost." The Act does suant to H.G.L.c.164, 5691(3); and not direct that primary consideration be given to environmental iii) that such guidelines will contain a requirement factors with a secondary or discretionary review of power needs and that for any proposed coastal facility, an applicant cost impact. All three factors, i.e., power needs, environmental provide information .for at least two alternative concerns and cost impact, are of equal importance and weight. sites, one of which shall be an inland site. The Memorandum's listed Responsibilities under the Coastal b) a regulation or administrative bulletin that Zone Management Program again contain several points of misstated recognizes that the administration of the Coastal jurisdiction and purpose. The second paragraph of such section Zone Management plan by the EOEA or any subdivision provides: thereof may be substantially and specifically affected by a proceeding before the EFSC in which the proposed 2. The EFSC hereby agrees to recognize the final site or alternatives are located in the Coastal Zone Coastal Zone Management Plan, as approved by the and will therefore recognize the standing of the Governor, as a statement of health, environmental Coastal Zone management office in any such proceeding. and resource use and development policies of the Commonwealth in the coastal area. 4. In conducting its review of facilities proposed for critical areas of environmental concern, the EFSC By purporting to embrace the CZM Plan as a comprehensive policy plan will give prime consideration to the environmental of the Commonwealth, the Council bestows policy stature on a document impact in these areas. While thus insuring a minimum not entitled to such recognition. The current health, environmental impact on the environment in such critical areas, the protection, resource use and development policies of the Commonwealth EFSC will continue to consider the need for a necessary are set forth in the constitution, general laws and duly promulgated energy supply at the lowest possible cost and will. re- rules and regulations of agencies. For that matter the Council has tain its final power under Massachusetts Law over the shown a specific awareness of policy sources in Chapter C - Long-Range siting of energy facilities. Forecasts and Supplements of its Regulations. (See, Rule 62.9[31). With reference to the promulgation of regulations, the Act specifically The third and fourth paragraphs of such section provide: empowers the Council to adopt and publish rules and regulations con- sistent with the purpose of the Act. (�69H[2J). Moreover, the 3. The EFSC hereby agrees to act consistently with Council in Chapter C - Rules for Adopting Administrative Regulations the policies of the plan and to amend or adopt such of its filed and published Regulations, describes the procedure for regulations and procedures as may be necessary to the adoption, amendment or repeal of such regulations. If the regu- implenment those parts of the plan which fall under lations and procedures referenced in this paragraph of the Memorandum its jurisdiction, including, but not limited to: are intended to establish a rule, standard, guideline or other re- a) a regulation or administrative bulletin *_ ~~~~~~-- Bend -6- quirement of general applicatiop it must be promulgated consistent with the requirements of the State' Administrative Procedure Law. (G.L.c.30A). An administrative bulletin is limited to matters of site nformation will reul t in donuplication. andth the reasonabtle the internal management of the Council and should not substantively of such euiderant s ubect to qestion. affect the rights of or the procedures available to the public or parties affected by the Council.s activities. Subparagraph 3(b) of the Hemorandum contains a commitment to promulgate a regulation or issue an administrative bulletin which The eured provisions of (ihrough iii) of Paragraph will confer stagndin of the Coastal Zone management office to paril- 3(a) affect the substantive rights of the applicant electric company cipae in any proceeding where a proposed site or alternatives are cipite in any proceeding where a proposed site or alternatives are or gas company. Subparagraph 3(a)(1) requires review ad comment by located in the Coastal Zone. The determination of parties in interest the: EOEA prior t~o any hearing before the 'Council. The Act contatins in proceedings before the Council is specifically treated by the Act. no such requirement. In fact, it specifically excludes Council ac- (6-9N). The status of an entity described as "the Coastal Zone manage- tion from the application of G.L.e.30, 5561 and 62 (determination meat office" to participate in any such proceeding i unclear Par- of environmental impact and publication of environmental impact re- ticularly, where, as here, intervention and participation are treated port). The latter section (5612) colts for the submittal of an cn- by the statute and existing Council regulations. (Rules 15.2 & 15.3). vironmental impact report to the secretary of environmental affirs Furthermore, the Coastal Zone management office is for all intent and for comment. Thus, any attempt here to giv EOEA preference over purposes the EOA, which nw would appear at the bearing before the the other cabinet secretaries on the Council or afford the EOEA an opportunity for preheaing re view and comment is contrary to the Council in an advocate capacity and also participate in the adjudica- language of the Act. Subparagraph 3(a)(ii) calls for cooperation tory decision process as a Council member between OEDA and the Council for developing guidelines for data for initial review. (56961(3)) The 1976 amendment (St. 1976, c.468)__ Subparagraph 4 of the Hemorandum states that where facilities to the Act has revised and. expanded the application of such guide- are proposed fot critical areas of environmental concern"; prime con lines by deleting the reference to initial review As now amended sideration will be given to the environmental impact. This requirement lines by deleting the reference to initial review. As now amended the applicable provisions of b69!(3[r;eaas: is defective for two r easons. First, the Hemorandum contains no def- the a inition of "critical areas of environmental concern", nor for that The council shall after public notice and a period matter any indication how one would determine what or where they were. Tfheor.soe be empered to issue and revise its ounclSecond, the Act' defines the Council's responsibility as having three for_,coument be empowered to issue and revise its own list of guidelines. A mininmgm of data shall aspects, namely, to implement the Commonwealth's energy policies to be required by these guidelines from the applicant provide (1) a necessary energy supply, (2) with a minimum impact on for requview concerning land use impact, water re- the environment and (3) at the lowest possible'cost. Nowhere is the for reviewncncerning land use impac, water - Council empowered to select one factor for primary consideration source ipact, air quality impact, solid waste mpactwhile relegating te remaining factors to secondary roles. pact, radiation impact and noise impact. The emphasis is on minimum of data and does not call for a comprehensive As appealing as the Memorandum of Understanding might appear analysswhicmay-ed at Ilicnsigleto some on first reading, 'its impact becomes ominous when the other analysis which may be required at the licensing agency level. documents of the CZM Plan are reviewed For example the Energy Consequently, the XEOA and Council cooperation would ex- Chapter shows plainly the subordinate role in store for the Council. tend Cbeond an initial review and call for a cooperato woperatiex. Throughout Policy statements (28) through (33) the Implementation tend beyond an initial review and call for a continuing cooperation. Subparagraph 3(a)(ili) purports to establish a requirement that for scheme,the marching orders of the Council are explicit any proposed coastal facility information must also be furnished on The PFSC shall promulgate rules'and regulations a minimum of two alternative sites, one of which must be an inland site. The Act merely requires a description of alternatives to the through which it will consider alternatives in the planned action and lists other site locations as one of several types manner descred under this olicy... Policy of alternatives (i.e;, other methods of generating, other power sources, (29) - pg 34) no additional power, etc.), To establish a set number of alternate "... Specifically, the Council shall: - weight the air and water quality, noise, and ;ZLL� - 7 - visual impacts associated with siting the facility at the alternative and proposed sites, ... In addition, electric facilities should not be sited in areas designated by the Secretary of Environmental Affairs as Areas for Preservation or Restoration/ Areas of Critical Environmental Concern." IPolicy (31) - pg. 36] Finally, the draft CZM Plan regulations governing Procedures for Actions in the Coastal Zone (7.10) indicate that state agencies in dealing with matters affecting the Coastal Zone are to follow their standard procedures, ".... including any modification in these pro- cedures to incorporate CZM policies". The source of control and direction are clear. The Coastal Zone management office will decide what, if any, energy facilities are sited in the Commonwealth. Comment and Conclusion: As presently structured the proposed Coastal Zone Manage- ment Plan, as it relates to the responsibilities and jurisdiction of the Energy Facilities Siting Council, is deficient in several respects, some of which are highlighted by the Memorandum of Understanding en- APPENDIX B tered into between the Council and the Executive Office of Environ- mental Affairs. First, the CZM Plan is to include a "planning process' for energy facilities" which will anticipate and manage the impacts from such facilities. The CZM Plan cannot preempt the delegated responsibilities of other state agencies, e.g., Energy Facilities Siting Council. Second, the mandated consideration of proposed energy facilities by the Council is threefold - necessary energy supply - minimum impact on the environment --lowest possible cost. Any attempt to have the Council commit itself to ignore one or more of such considerations or grant precedence of one over the others, must fail. Finally, the approvals and orders issued by the Council are adjudicat6ry in nature and determine the legal rights, 'duties and privileges of the applicant and other parties. Its decisions must be supported by substantial evidence and contain appropriate subsidiary findings.. -In sum, the siting of energy facilities in the Commonwealth is presently subject to a balanced and comprehensive *rview. The.:propo'sed:ZM .nPl and-its implementation through the Memorandum of Understanding instead of destroying this balance must give it appropriate recognition and support. April 26, 1977 John J. Desmond, III -2- -RiaLH, MAY, SILOOMAU & FLAHERTY staff of the Secretary of Environmental Affairs, the Governor's MEMORANDUM Task Force on Coastal Resources, and the Citizen Advisory Committees which are evident in every phase of the draft SUBJECT: Legal Authorities for Coastal Zone Management Program (Analysis of Boundaries and Land Use Massachusetts Plan. However, we are opposed to certain Controls) substantive and procedural aspects of the Plan which, in our DATE: May 5, 1977 opinion, represent an attempt to exploit the Plan adoption I. INTRODUCTION process to achieve a blanket system of rigid environmental restrictions which will be harmful to the state's economy and Attorneys representing various public utility companies to the development of energy facilities and resources, and for in Massachusetts have requested the opportunity to present which there is no legal authority. comments concerning the draft Massachusetts Coastal Zone This firm represents a number of public utility companies Management Plan dated March 18, 1977. Different aspects with interests in the future use of the coastal zone, including of the PMan will be coverd by each attorney submitting Algonquin Gas Transmission Company, New Bedford Gas and Edison written comments. This Memorandum will consider the boundaries Light Company, and Fall River Gas Company. These companies of the Massachusetts Coastal Zone as described in the draft and their facilities are franchised, licensed or certificated Plan, and the authority of the various line agencies (not by regulatQry agencies to serve the public. The existing including the Executive Secretary of Environmental Affairs, laws under which they operate, soh as the Natural Gas Act, whose implementing authority is treated in a Memorandum 15 U.S.C. S717 et seq., and the Massachusetts provisions of submitted by New England Power Company, nor the Energy Facili- G.L. c. 164, especially G.L. c. 164, SS69G-69S, establishing ties Siting Council, which is discussed in a Memorandum the Energy Facilities Siting Council, recognize the interest prepared by Boston Edison Company) to make effective the of the public in the construction of public utility facilities, system of land use controls contained in the draft Plan. and provide that in almost every instance (the only exception We recognize the value to the citizens of Massachusetts being construction on state lands by an intrastate utility of a Coastal Zone Management Plan, properly adopted and placed operating under G.L. c. 164), upon a,,fijxing that a proposed into effect, the aim of which is to satisfy the conditions of facility will serve the public convenience and necessity, such the Coastal Zone Management Act, 16 U.S.C. S1451 et seq. (the facilities may be constructed notwithstanding other conflicting "Act"). We also recognize the hard work and dedication of the restrictions. Such a finding by a regulatory agency involves -3- -4- balancing possible harm to the environment as-a result of the pursuant to the Act. The draft Massachusetts Plan has adopted construction of a facility against the benefits to the public a system of major roads or other rights of way generallly which the facility will provide in operation. The Coastal paralleling the coast as the boundary. Plan, Boundary Chapter, Zone Management Act, especially in S5306(c) (8) (16 U.S.C. p.3. The actual boundary is 100' inland of the designated S1455(c)- (8)), 306 (e) (2) (16 U.S.C. 51455(e) (2)) and 305 roads. All islands are included, in accordance with the 1976 (b) (8) (16 U.S.CJ s1454(b) (8)), provides that this balancing amendments to the Act. Areas such as tidal wetlands and procedure is to continue under the Act, and that the other similar areas inland of the road boundary are also environmental protection goals and energy development goals of included. In addition, the entire Cape Cod area is included the Act are to be considered in relation to one another. The from the Bourne-Plymouth town line eastward. same spirit is evident in the Congressional findings and Although the general principle of using roads or other declaration of policy in the Act. See 16 U.S.C. S�1451 and rights of way as the boundary is as acceptable as any other 1452. The Act does not constitute a mandate for giving principle for designing the boundary, in actual application overriding precedence to environmental protection. there are a number of specific areas in which the roads or The gist of these comments on boundaries and land use rights of way chosen take in much more land than is necessary controls under the draft Massachusetts Plan is that the Plan, or appropriate to comply with the definition of the Coastal as applied to specific geographical areas, goes far beyond Zone in the Act. In addition, in some instances, the Plan any reasonable environmental protection program contemplated includes within the Coastal Zone areas which are not within by the Act, and ignores in many instances the historic balancing the permissible area as defined in the Act and in regulations of interests which has governed the construction of energy of the National Oceanic and Atmospheric Administration ("NOAA"). facilities, and which is expressly preserved by the Coastal The Act provides standards for designating the limits Zone Management Act. These comments also assert that there is of the Coastal Zone. In 16 U.S.C. S1453(a), the Act states no legal authority to implement substantive land use controls that the zone may extend inland "only to the extent necessary contained in the Plan by means of the permit statutes upon to control shorelands, the uses of which have a direct and which the Plan relies. significant impact on the coastal waters." Regulations adopted by NOAA further provide that the boundaries of the II.. THE BOUNDARIES OF THE COASTAL ZONE area to be controlled by a state pursuant to a Plan adopted The Coastal Zone is the area which will be regulated under the Act may not be more extensive than those called for by the Act. 15 C.F.R. �923.11(b)(1)."--a (5) Cape Cod. The entire Cape Cod area is included. A review of maps prepared by the Coastal Zone Manage- The inner Cape area-varies in width from five to ten miles, ment Program, and as yet unpublished, reveals the following and the Falmouth area is even wider than that. Elevations specific areas in which the boundary includes land which frequently exceed 200' above sea level. Considering the the use of which cannot be deemed to have a "direct and multitude of laws already in effect in Massachusetts affecting significant" impact on the coastal waters: wetlands and water quality, the imposition of coastal zone (1) The Maqnolia region of Gloucester and Manchester. jurisdiction over so broad an area is not only inconsistent The boundary follows Route 127, rather than other streets with the Act and regulations adopted thereunder, but serves closer to the coast, and extends as much as one mile inland no useful purpose. at elevations of over 150' above sea level. (6) Westport Point. Westport Point is a broad (2) The Marblehead-Swampscott area. The boundary covers peninsula with high elevations along the central spine. all of Marblehead, a sizeable town, and most of Swampscott, There are well-defined roadways near the shore on all sides and extends more than one mile inland and to elevations in of the peninsula. The extension of the boundary to cover excess of 100'. this peninsula in its entirety is arbitrary and inconsistent (3) The Cohasset-Scituate-Marshfield area. The boundary with the treatment of similar land areas elsewhere in the follows Route 3A through these towns. This highway is well state (e.g., Cape Ann). inland for almost all of its length in these three towns, Because final maps have not yet been published or touching the coastal waters only at a few points such as the included as part of the draft Plan, we reserve the opportunity North River. There are many streets closer to the coast which to make additional and more detailed comments concerning the could be used as the boundary, and no need to subject large when maps are published. areas in these towns to CZM restrictions. (4) The Manomet-White Horse Beach area of Plymouth. III. LAND USE RESTRICTIONS Again, Route 3A is used as the boundary, despite the fact According to the Act, 16 U.S.C. S1454(b)(2), a coastal that in the Manomet area the land is at its highest elevation zone management plan must include " a definition of what shall along the Massachusetts coast, and despite the fact that the constitute permissible land and water uses within the Coastal boundary is a long distance inland. There are numerous other Zone which have a direct and significant impact on the coastal roads closer to the coast in this area which could have been waters." In 16 U.S.C. 51454(b) (5), the Act requires that a chosen as the boundary without subjecting wide areas of land plan must also contain "broad guidelines on the priority of to unnecessary restrictions. - -7- -8- -8- uses in particular areas. . ." Regulations of NOAA further to establish the land uses to be permitted or excluded in any provide, consistently with 16 U.S.C S1451(c) particular area, or to carry such restrictions on land use that in determining permissible uses, states should give into effect. The regulations of NOAA require only that the consideration to the requirements for industry, commerce, ability to control land use be demonstrated by the plan, not residential development, recreation, extraction of mineral that the plan itself adopt such restrictions. See especially resources and fossil fuels, transportation and navigation, resources and fossil fuels, transportation and navigation, 15 C.F.R. 55920.14 and 923.14. Although the plan must contain waste disposal and harvesting of fish, shellfish and other State policies or guidelines on land and water use in the living marine resources. The regulations emphasize and repeat coastal zone," such policies or guidelines need not tae the coastal zone," such policies or guidelines need not tate the the need to strike a balance between competing needs for land form of blanket prohibitions, but could appropriately :onsist and water uses in the coastal zone. The regulations provide that of priorities or factors to be considered by regulating agencies the determination of permissible and nonpermissible uses must having jurisdiction in permitting or not permitting a articular having jurisdiction in permitting or not permitting a particular be based upon careful analysis of the impacts of competing use inca particular area. The requirements of the NatLonal uses, rather than on arbitrary exclusions of types of uses, lood Insurance Program, used as a justification for tie Flood Insurance Program, used as a justification for the6 regardless of their environmental impact. See 15 C.F.R. 5920.12 draft Plan's flood hazard policies, are similarly flexble, draft Plan's flood hazard policies, are similarly flexhibe, and 923.12. There is no requirement in either the law or the and permit exceptions to local flood control regulatios, and permit exceptions to local flood control regulations, regulations that the coastal zone must be protected from especially for public utility uses. See 24 C.F.R. SS110.3, any further environmental change through development. Similarly, 1910.6 and 1910.22a)(2). Such regulations, even in fLood- 1910.6 and 1910.22(a)(2). Such regulations, even in flood- the requirement in 16 U.S.C. S1454(b)(3) that a plan contain prone areas, need prohibit only nonessential or improper" an inventory of areas of particular concern does not direct installation of public utility facilities. 24 C.F.R. the preservation of every area designated as an area of high S1910.22(a)(2). The land use policies adopted under Policy 8 natural productivity or essential habitat for living resources of the draft Massachusetts Plan are much more rigid and pursuant to 15 C.F.R. S�5920.13 and 923.13, nor must the plan restrictive than necessary to conform to federal regulations enable the commercial development of every site identified as for flood hazard insurance eligibility. for flood hazard insurance eligibility. an area where developments and facilities are or may be con- The draft Massachusetts plan goes far beyond the structed which are dependent upon coastal waters. minimum requirements of the federal law and regulations, in Under the Act and the NOAA regulations, the plan ia a Under the Act and the NOAA regulations, the plan i a that it contains in several of its enumerated "policieE" specific procedural tool for classifying and establishing priorities permitted and prohibited uses in designated areas. The per- of use in the coastal zone. The plan itself is not required -ash -10- -9- (5) Barrier beaches. mitted and prohibited uses, when viewed in relation to the (6) Salt ponds. extent of the areas covered, amount in their practical effect 7)Designated APR's(~.which may include, but are not to a freezing in their natural state of all undeveloped areas limited to, areas (1) through (6) above, plus areas which immediately-adjacent to the shoreline. Finally, there are are known spawning grounds for fish, commercially valuable contradictions between the policies establishing permitted plants, anadromous fish runs, feeding and breeding areas for and prohibited uses in Significant Resource Areas (SRA's), waterfowl or birds dependent on coastal resources, and areas Areas for Preservation and Restoration (APR's) and flood of high water quality or potential to meet highest water zones and the policies with respect to ports and harbors quality standards. and energy facilities. If the policies with respect to t8) Areas of special flood hazards/ with velocity, SRA's, APR's and flood zones control the policies on ports that are inundated by tidal floodsA(the coastal high hazard and harbors and energy facilities, as appears to be the case, area) designated as zone Vl-30 under the National Flood the latter policies are meaningless. The opportunity to Insurance Program. balance the relative importance to the public welfare of (9) Areas of special flood hazards having water depths competing land uses in the coastal zone, which is one of the and/or unpredictable flow paths between (1) and (3) feet policies of the coastal zone legislation which Congress thought and with velocity, designated as zone VO under the National important enough to write into the Act, has been omitted from Flood Insurance Program. the draft Massachusetts Plan. (10) Areas of special flood-related erosion hazards, A. THE DESIGNATED RESTRICTED AREAS designated as zone E under the National Flood Insurance AND USES PERMITTED AND FORBIDDEN Program. The major land use restrictions contained in the draft The "permitted uses" in areas numbered- (1) through (6) Massachusetts Plan are found in policies 1, 2 and 8. In sum, and (8) through(l0) above are as follows according to the the areas restricted by these policies include the following: draft Massachusetts Plan (see pp. 2-B/34 - 2-B/36 and Coastal (1) Saltmarshes. Hazards chapter, p.10): (2) Shellfish flats. a. the construction and maintenance of cat walks, (3) Dune areas. observation decks, wharves, piers, boathouses, boat shelters, (4) Sandy beaches. fences, wildlifze management shelters, and above ground electric and communication lines providing these structures are con- i. dredging, excavation, filling, an- other construction structed on pilings or posts to permit the reasonably unobstruct- for a boat channel limited to single famile use (subject to ed flow of the tide and preserve the natural contour of the specified conditions); maintenance dredginj of existing area, channels and mooring basins; the construction, expansion, b. the cultivation and harvesting of shellfish and wormUs and maintenance of beaches, including beach nourishment except for bait, and the excavation and construction of areas for the on salt marshes and shallfish flats; the construction and cultivation of shellfish and other marine foods, maintenance of boat launching ramps (subje.ct to specified C. outdoor recreation activities, conditions); ship channels in port areas (;ee Policy 18); and d. salt march haying, dune and marsh grass planting, bank stabilization and shoreline protection works which meet Irish moss harvesting, the policy criteria set forth in Coastal Hazards Policies e. the installation of floats, construction of duck- 11 and 12. blinds, Tr!,Iaddition, in salt ponds only, dredqing for the enhance- f. the construction and maintanence of a minimum legal ment of shellfish and other marine food productivity is and practical width driveway providing an alternative means permitted. of access from a public way without building upon ecologically The prohibited uses in the areas described above in significant resource areas is unavailable. Such driveway paragraphs (1) through (6)'and (8) through (10) are as follows: shall be constructed in a matter which does not restrict All activities, except those needed to accomplish the the flow of the tide and shall be constructed of permeable above permitted uses, shall be prohibited. Such prohibited material, and shall not be treated with any petroleum product uses shall include, but not be limited to: or salt, a. the filling, placing, or dumpinr4 of any soil, loam, g. the enlargement to minimum legal and practical width peat, sand, gravbl, rock or other mineral Substance, refuse, and the maintenance of existing raised roadways, trash, rubbish, debris, or dredge spoil, h. the installation and maintenance of underground b. the draining, excavating, dredging, or removal of electric, communication, sewer, potable water, and residential loam, peat, sand, gravel, soil, or bther m:neral substances, gas lines, providing the surface vegetation is restored sub- C. the discharge of hazardous substances, the discharge stantially to its original condition, i.e. revegetation as from a sewage treatment facility, and the discharge of thermal necessary for restoration, effluent from a power plant or other industrial source. -13- -14- The use policies in designated Areas for Preservation (1) through (10) above constitute-the entire Massachusetts and Restoration are more restrictive than those listed above. shoreline. There is no type of coastal area which is not We note that with respect to the APR's, the plan provides included, either as a saltmarsh, beach, flood-prone area, in a footnote that "in situations where compliance with this or other specified area. The restrictions on uses in these policy would conflict with the compelling public interest, areas unconditionally bar the construction of any type of the conflict resolution process should be used." Plan, public utility facility within or through these areas except p.2-B/40. No such provision is provided for areas restricted transmission lines. by Policies 1 or 8. Although a discussion of the adequacy Policies 1, 2 and 8, because of these blanket land use of such a provision as a means to reestablish the balancing restrictions, render the construction and land use policies of interests underlying the permitting of public utility adopted in the Ports and Harbors and Energy chapters meaning- facilities is beyond the scope of this memorandum, we note less. that the Massachusetts legislature has already established Although the Energy chapter provides that energy facili- the Energy Facilities Siting Council and the Department of ties not subject to the jurisdiction of the Energy Facilities Public Utilities to oversee the granting of permits which Siting Council are subject to Policies 1-27, the Energy override other local or state land use restrictions. Neither chapter nowhere states that facilities subject to the Council's the Executive Secretary of Environmental Affairs nor these jurisidiction are not subject to such policies. In fact, the two state agencies may repeal or amend these statutes to Memorandum of Understanding with the Energy Facilities Siting deprive these two agencies of jurisdiction to act on permit Council requires the Council to give "prime consideration"to applications under their basic 'legislation. The imposition environmental impacts in the areas of critical environmental of a "conflict resolution procedure" giving the Executive concern. Secretary power to override the Council or the Department is In summary, the Plan purports to adopt a comprehensive absolutely contrary to existing statutory provisions. See and highly restrictive system of permitted and prohibited G.L. c. 164, �569G-69S; G.L. c. 40A, S3; G.L. c. 164, 5571- land uses within areas of varying dimensions along and adjacent 75G; G.L. c. 166, 9521-32. Neither the Management Chapter's to the shoreline, but nevertheless constituting a continuous discussion of the conflict resolution procedure nor the draft strip extending for the entire length of the Massachusetts coast. EOEA regulation (S7.20) makes any mention of applying the Such a system of land use regulations is not a requirement of procedure outside the EOEA agencies. See Plan, p.4-16. the Act or of the NOAA regulations, and the absolute exclusion The areas restricted or to be restricted under paragraphs -15- -16- from this strip of public utility uses (except for transmission to control land use in a manner which will exclude uses which lines) is contrary to the Act. The legal authority of line have a "direct and significant impact on the coastal waters." agencies to implement such a system (excepting the discussion See 16 U.S.C. S�1454(b) (2), 1455(c) (7), 1455(d) and 1455(e). of the Executive Office of Environmental Affairs and the Siting The state may choose the means by which such control is achieved. Council, as previously noted) will be discussed in the next 16 U.S.C. 51455(e) (i); see also the draft study by David A. Rice, section of this Memorandum. "Legal and Institutional Resources for Implementation of the Massachusetts Coastal Zone Management Program", pp.3, 11-12, B. THE LACK OF LEGAL AUTHORITY IN MASSACHUSETTS FOR STATE AGENCIES and 30-31. TO ADOPT A SYSTEM OF PERMITTED AND PROHIBITED USES IN THE The blanket use restrictions contained in Policies 1, 2 COASTAL ZONE. and 8 may exclude uses which would not have "direct and sub- We have three principal legal objections to Policies 1, stantial" impacts. Not only are such use restrictions incon- 2 and 8 as they appear in the draft Massachusetts Plan: sistent with 16 U.S.C. 51454(b) (2), but they exceed the per- (1), Public utility uses, except for transmission lines, missible limits of police power restrictions, since such are automatically excluded from the designated areas, contrary restrictions must have a reasonable relationship to the public to provisions of the Act (see discussion in Part A above). health, safety or welfare. The Massachusetts Supreme Judicial (2) The system of predetermined permitted and prohibited Court has stated, "The preservation of privately owned land uses of the draft Plan permits no consideration of whether a in its natural, unspoiled state for the enjoyment of the public particular prohibited use will have "a direct and significant by preventing the owner from using it for any practical pur- impact on the coastal waters" (see 16 U.S.C. 51454(b) (2)). pose is not within the scope and limits of any power or authority (3) The permit and license statutes relied upon by the delegated to municipalities under the Zoning Enabling Act." draft Plan as legal authority for implementation of the per- MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 640-1 mitted and prohibited use system do not provide legal authority (1970). Because the restriction imposed by the Duxbury Board for adoption of such a system. of Appeals in MacGibbon operated to exclude a use which the Issues No. (2) and (3) will be considered in this section court found would not interfere with the ocean food chain or of this Memorandum. pose a flood hazard, the court overturned the Board's refusal 1. "DIRECT AND SUBSTANTIAL IMPACT to grant a special permit. The court instead ordered the Board ON THE COASTAL WATERS" to resolve any problems by means of conditions and safeguards. The Plan must demonstrate that Massachusetts has the ability MacGibbon v. Board of Appeals of Duxbury, Mass. Adv. Sh. (1976), 143, 149-55. asd -17 - - 0-- The land use controls in Policies 1, 2 and 8 would ~manner that the property is taken for public use. We also wish eliminate the possibility for such a resolution, since to state our disagreement with assertions by counsel for the the Plan fails to provide for any solution of a proposal Coastal Zone Management Office that the Energy Facilities Siting for a non-permitted use other than prohibition. In Council may not override wetlands restrictions. According to addition, as will be noted in the next section, Policies G.L. c. 164, 569K, the certificate procedure is available to 1, 2 and 8 would, if adopted as regulations by the override "any disapprovals, conditions or denials" by state agencies (emphasis added). permittings agencies referred to in the draft Plan, unlaw- fully deprive these agencies of a significant measure of The permit and license statutes furnish no authority for discretion which has been vested in these agencies imposing, by means of regulations or otherwise, a predetermined by the legislature. set of permitted and prohibited land uses. The essence of a permitting statute is that an applicant for a permit must have 2. UNLAWFUL UTILIZATION OF PERMIT AND an oppox*unity to present his case and to prove that he meets LICENSE STATUTES AS AUTHORITY FOR A PREDETERMINED SYSTEM OF PERMITTED the standards established by the statute for issuance of the AND PROHIBITED USES permit. The permitting agendy cannot adopt rules and regulations Apart from the two wetlands restrictions acts (G.L. that deprive applicants of the opportunity to make such proof, c. 131, 5105, and c. 131, S40A) * the statutes relied upon nor may such regulations deprive the agency of a portion of as authority for the land use restrictions of Policies its statutory subject matter jurisdiction, or change the 1, 2 end 8 are permit or licensing statutes. statutory standards on the basis of which the agency decides cases before it. The wetlands restriction statutes provide authority for imposing direct restrictions on the use of specified The power of administrative agencies to adopt rules and types of significant areas. However, the restrictions regulations has been outlined as follows by the Supreme Court: "The power of an administrative officer or board imposed under such statutes must be reasonably related to administer a federal statute and to prescribe rules and regulations to that end is not the to the interests sought to be protected. Ct. MacGibbon v. power to make law -- for no such power can be delegated by Congress -- but the power to adopt Board of Appeals of Duxbury, supra,.356 regulations to carry into the will of Congress as expressed by the statute. A regulation which the wetlands restriction statutes, the state must pay for does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity." the privilege of restricting use of property in such a Manhattan General Equipment Co. v. commissioner of Internal Revenue, 297 U.S. 129, 134 (1936). 249 administrative actions carried out under the statute must be The Massachusetts Supreme Judicial Court follows the same measured. This standard provides as follows: standard in reviewing administrative regulations: "But-an "If after said hearing the conservation commission, administrative board or officer has no authority to promulgate selectmen or mayor, as the case may be, deter- mine that the area on which the proposed work rules and regulations which are in conflict with the statutes is to be done is significant to public or private water supply, to the ground water supply, or exceed the authority conferred by the statutes by which to flood control, to storm damage prevention to prevention of pollution, to protection of such board or office was created." Bureau of old Age Assistance land containing shellfish, or to the protection of fisheries, such conservation commission, of Natick v. Commissioner of Public Welfare, 326 Mass. 121, 124 board of selectmen or mayor shall by written order within twenty-one days of such hearing (1950). impose such conditions as will contribute to the protection of the interests described herein, Time does not permit an exhaustive analysis of each of and all work shall be done in accordance there- with." G.L. c. 131, S40. the permitting statutes relied upon as authority for the system In order to regulate a project, the body holding the hear- of permitted and prohibited land uses described in Policies 1, 1ng must first find that the area in which the work is to 2 and 8. Instead, this Memorandum will focus on G.L. c. 131, be performed is significant to one of the enumerated interests. 540, the-.wetlands protection statute, as possible authority 4 Second, any conditions which are imposed must contribute to for the Commissioner of the Department of Environmental Quality the protection of the enumerated interestse Although DEQE Engineering to adopt regulations applying the restrictions in is required to make regulations by the statute, such regula- Policies 1, 2 and 8 to the granting of permits under that' statute. tioms are limited to those which "effectuate the purposes of Much of what is true of the Commissioner's authority under that this section." G.L. c. 131, 540. statute is equally applicable to other permit or license statutes An examination of the statute itself fails to reveal any cited in the draft Plan. express power delegated by the legislature to DEQE to establish According to G.L. c. 131, 540, any person seeking to conduct any work in the areas coveredby the statute must file his plans predetermined land or water use restrictions. A comparison of G.L. c. 131, S40, with statutes which do expressly enable with the conservation commission and DEQE. The conservation the adoption of such restriction, serves to distinguish the commission (or DEQE, on an appeal from the conservation commission) legislature's intent in G.L. c. 131, S40, from the very must hold a hearing, and issue an order of conditions regulating the construction.' different intent manifested by the land use restriction statutes. See, for example, the definition of "zoning" in The statute does not confer unlimited discretion on the the zoning enabling act, G.E..c. 40A, Sl: conservation commissions and DEQE to regulate the use of the areas under their jurisdiction pursuant to the statute. The "'Zoning', as used in this chapter, shall mean ordinances and by-laws, adopted by cities and ________ which all ~~~~~towns to regulate the use of land, buildings and legislature has provided a standard according to which alltow n s to the use of the ingspend structures to the full extent of the independent constitutional powers of cities and towns to Q4D protect the health, safety and general welfare of -21- -22- their present and future inhabitants.: city or town licensing board. The statute permitted the Also see Mass. Const., Amend. Art. LX: Authority to adopt fixed numerical limitations on the number "The general court shall have power to limit buildings according to their use or construction of licenses issued, but did not provide for any procedure for to specified districts of cities and towns." other similar provisions are contained in G.L. c. 40C, appli- pre-application waiver by the Authority of such limitations. The court stated, "The change which rule 45 seeks to cable to historic districts. impose on the statutory scheme by requiring a pre-application If the predecessor agency of DEQE did not already have waiver is no mere matter of detail; it goes to the very heart sufficient power to apply predetermined land use restrictions of the procedure prescribed by the legislature . . ." The to wetlands and other covered areas under the predecessor court noted that an unsuccessful applicant who failed to of G.L. c. 131, 540, which was enacted in 1963, there would obtain a waiver was denied a hearing, a written statement of have been no need to enact the wetlands restriction laws, the grounds for denial, and judicial review under applicable G.L. c. 130, 5105, and G.L. c. 131, S4OA, which were added statutes. Gross v. New York City Alcoholic Beverage Control in 1965 a~nd 1968, respectively. � Board, 7 N.Y. 2d 531, 166 N.E. 2d 818, 821 (N.Y. 1960). The Under a permit statute, the permitting agency is bound to utilize the procedures provided for in the statute, and opinion concluded, "More specifically,to state the matter briefly, the Authority is without power to adopt a scheme of* may not rewrite the statute to establish new prerequisites its own to deal with applications for licenses and employ it for a permit which have no basis in the existing statutory as a substitute for that provided by the legislature." Id. framework. Fqr example, the New York State Liquor Authority at 822. adopted a rule which stated that the number of certain types A regulation of DEQE which stated preconditions for the of liquor licenses was to be limited to the number of such granting of permits under G.L. c. 131, S40, either as land licenses as of a certain date. The Authority further pro- use restrictions or as grounds for automatic, mandatory denial vided that waivers to that policy could be granted upon certain of permits, would be similarly outside the authority of DEQE conditions. The State Liquor Authority regulation prohibited as established under G.L. c. 131, S40. Such regulations would local licensing authorities established by the statute from accepting or acting on applications for licenses unless the applicant deprive applicants of their right to a hearing before the conservation coimnission and to a decision of the local body had previously obtained a waiver from the Authority. The statute regulating the granting of liquor licenses provided exercising the discretion allowed to it under the statute. If a decision of the local body is not appealed, DEQE has that the applicant would apply in the first instance to the no authority to interfere. Depending on the form taken by -2 3- -24- the 'estriction imposed by DEQE, applicants could also be deprived was a requirement established in SJ0(b) of the Act); Shea v. of their right to judicial review under G.L. c. 30A, 514, applicable Vialpando, 416 U.S. 251 (1974) (Colorado Aid to Dependent to adjudicatory hearings, and limited instead to review of regu- Children regulation restricting employment expense exclusion lations pursuant to G.1.. c. 30A, �7, and c. 231A. The standards from gross family income to no more than $30 per week was not and procedures of review under these statutes differ materially. authorized by statute which mandated that gross income test "take Predetermined land use restrictions would also deprive the con- into consideration. . . any expenses reasonably attributable servation commissions and DEQE of their discretion to control to the earning of any such income'); and Farrell Lines, Inc. v. potentially harmful development by imposing conditions, thereby United States, 499 F. 2d 587 (Ct. Cls. 1974) (Federal Maritime leading to situations similar to that discussed by the Supreme Agency could not exclude certain payments to seamen falling within Judicial Court in MacGibbon decisions. statutory description of included items in determining operating- Adoption of predetermined land use policies applicable to the differential subsidy). granting of orders of conditions under G.L. c. 131, 540 would Through the adoption of regulations, an-agency may not place change the standard under which the conservation commissions and into effect a regulatory scheme which differs from that contemplated DEQE would act under the statute. Regulations which modify the by its enabling legislation. A system of permitted and forbidden standard pursuant to which an administrative body makes its land uses is substantially different in nature from the permitting statutory determinations are not permitted. For example, when system contemplated by G.L. c. 131, S40. Thus, a statute administered a statute provided that liquor license applications should be by the Pennsylvania Department of Agriculture made it unlawful to granted upon a showing by the applicant that the license would offer for sale any adulterated food. 'Adulterated' was defined serve the 'public convenience and advantage", there was no as "mixed, colored or changed in color. . . whereby damage or power in the licensing authority to deny an application on the inferiorityis concealed, or so as to deceive or mislead the basis that there was no need for a liquor store in the location purchaser; or if, by any means, it is made to appear better or of applied for in view of the type of neighborhood there. Barry v. greater value than it is.' The Department of Agriculture was O'Connell, 303 N.Y. 46, 100 N.E. 2d 127 (N.Y. 1951). See also given the authority to adopt rules and regulations "for the Ernst & Ernst v. Hochfelder, ____ U.S. ____, 47 L.. Ed. 2d 668, proper enforcement thereof, including rules and regulations 688-9 (1976) (Securities and Exchange Commission, in adopting setting up definitions and standards of articles of food. . Rule 10b-5, had no power to modify'standard of conduct provided Bakery products, under the Department's regulations, were required by S10(b) of the Securities Exchange Act of 1934, 15 U.S.C. to be free from added color, either of synthetic or natural S78j(b), to cover conduct not involving scienter, since scienter origin. Defendant was arrested and charged with selling adulter- 09~oii.Dfnatwsarsedadcagdwt eln dle- ~~~~~~~~~~~~~-25- ~~~~-26- Colarelli, 145 F. Supp. 569 (E.D. Ao. 1955}; aff'd sub nom. atgd food when he served a representative of the Department two Colarelli, 145 F. Supp 569 (E.. . 956; af'd sub no. Barton v. Sentner, 353 U.S. 2 (1957) (-per c-4ria.m) (Statute pieces of lemon pie containing "Jell-O Lemon Flavor Pie Filling Barton v. Sentner, 353 U.. 2 (197 (r crim) (Statute and Pudding" which were colored with artificial coal tar dye. authorizing Attorney General to impose restrictions on freedom of movement of alien subject to deportation did not authorize The Supreme Court of Pennsylvania held that the Department's restrictions on alien's opportunity to associate with other regulation represented an unlawful expansion of the Department's rule-making authority, since the addition of an artificial color persons, since such restrictions were for the purpose of regu- lating subversive activities, a subject not covered by the did not conceal defects in the pie or make it to appear better lating subversive activities, a subject not covered by the than it was or to have a greater nutritional value than it deportation statute). An administrative agency has no authority to narrow the actually possessed. Commonwealth v. DiMeglio, 385 Pa. 119, 122 An administrative agency has no authority to narrow the A. 2d 77, 80 (Pa. 1956). See also Volunteer Firemen's Relief scope of its statutory jurisdiction, or to disclaim any of its A. 2d 77, 80 (Pa. 1956). See also Volunteer Firemen's Relief Association of the City of Reading v. Minehart, 425 Pa. 82, 227 powers granted by the legislature. If an agency is directed A.2d 632 (Pa. 1967) (Auditor General had no power to disallow by its enabling legislation to consider certain factors in payments to Firemen's Relief Association on the ground that reaching a decision, it cannot adopt regulations which would Association required membership and payment of dues and imitia- cause a particular factor to be ignored. For example, the tion fee as prerequisite for death benefit paid out of state California indeterminate sentencing law had been construed by the tax reimbursements, since statute requires payments to be state supreme court to require consideration of all relevant made to the relief association recognized by the city for such factors, including post-conviction factors, in determining sentences purpose, and the plaintiff Firemen's Relief Association was so under the act. The California Adult Authority adopted regulations recognized);-Lewis v. Florida State Board of Health, 143 So. fixing sentences for offenders primarily in relation to the nature 2d 867 (Fla. App-. 1962) (Enabling statute containing authoriza- of the principal commitment offense, with extensions of the tion to adopt regulations furthering specific enumerated powers, sentence for post-conviction offenses. Other augumentingffactors together with "Execution'of any other purpose or intent of the included the offender's prior record and prior, concurrent or laws enacted for the protection of the public health of Florida" consecutive prison Sentences. Because the regulation did not- .. did not authorize adoption of substantive rules governing pest require the Authority to take into account vmitigating post-hconviction control companies, since such a purpose was not one of the behavior, the regulation was found to be invalid. The California specifically enumerated powers, nor was it granted by any appellate court stated: other statute enacted to protect the public health) and Sentner v. -28- What has been said in this V:emorand'u- concerning the powers -27- of DEQE and the conservation com'Assions under G.L. c. 131, 540, "The directive leaves mandatory criteria in can be applied equally well to other similar agencies and statutes, the corners of the field, awaiting an oc- casional gleaner. Administrators,like other including the Energy Facilities Siting Council and its enabling humans, tend to obey visible directions signs and ignore invisible ones. Left to stand, the legislation. directive would permit disregard of indis- pensable standards." In re Stanley, 54 Cal. If these agencies may not adopt regulations adopting a pre- App. 3d 1030, 126 Cal. Rptr. 524, 531 (Ct. App. 1976). determined system of permitted and prohibited land and water uses, Similarly, in Knowles v. Butz, 358 F. Supp. 228 (N. D. Cal. they may not accomplish the same result indirectly through so-called 1973) the applicable statute required for the purpose of the house- Memoranda of Understanding. According to G.L. c- 30A, S1(5), hold income test for eligibility for food stamps that a household "regulation" is defined as "the whole or part of every rule, constituted a group of individuals living as one economic unit, regulation, standard or other requirement of general application sharing common cooking facilities and for whom food is customarily and futu3ae effect... adopted by an agency to implement or enforce purchased in common. The Department of Agriculture adopted a the law enforced or administered by it." A Memorundum of Unders- regulation defining household as a group of persons who share tending in which an agency agreed to issue permits only for common living quarters and share expenses for such quarters. The specified permitted uses would constitute a regulation, and if not regulations had the effect of excluding from the food stamp pro- adopted pursuant to the procedures of G.L. c. 30A, the Memorandum gram individuals who shared living quarters, but did not share would be unenforceable. Lewis-Mota v. Secretary of Labor, 469 F. 2d cooking facilities or purchase food in common. The District Court 478, 482 (2d Cir. 1972); City of New York v. Diamond, 379 F. Supp. held that the regulation unlawfully narrowed the scope of the 503, 518 (S.D.N. Y. 1974) ("The fact that it is entitled 'Memorandum statutory food stamp program. to Heads of All Agencies' does not make it any the less an exer- Regulations which categorically prohibited the granting of cise of the administrative rule making power..."). permits for certain types of uses in the areas covered by G.L. c. 131, This section of this Memorandum has considered the legality of 540, would unlawfully narrow the jurisdiction of the regulatory the adoption of regulations under permit and licensing statutes to.- bodies under the law to grant permits for such uses upon proper establish a predetermined system of permitted and prohibited land uses. findings, and would also deprive these bodies of jurisdiction to The wetlands protection statute, G.L. c. 131, �40, has been con- consider the full range of factors mandated by the statute in act- sidered as a typical example of the permit statutes upon which the ing on an application. 2(. -29- -30- draft Massachusetts Plan relies for authority to adopt such a believe that an appropriate Coastal Zone Management Plan can be system. We have concluded that adoption of such regulations is achieved for Massachusetts by following closely the legislative beyond the authority of the persons charged with administration mandates of the agencies which will participate in carrying the of these statutes. Plan into effect. The propriety of administrative regulations must be measured by a single standard: the administrative agency's enabling legis- Michael T. Gengler Y Rich, May, Bilodeau & Flaherty lation. The validity of regulations is not determined by 294 Washington Street Boston, Massachusetts 02108 examining their purpose, and deciding whether they are "bad" regu- Tel.: 617-482-1360 lations or "good" regulations. The authority of an administrative agency is circumscribed by the statutes applicable to it, whether the agency is devoted to environmental protection, the licensing of businesses to serve alcoholic beverages, the regulation of welfare programs, or the control of aliens. The system of constitutional checks and balances is undermined equally whether an ultra vires regulation is promulgated to restrict the use of land or to deprive persons of civil liberties. IV. CONCLUSION These legal comments on the draft Massachusetts Coastal Zone Management Plan have been offered for the purpose of calling certain aspects of the Plan which we believe to be improper or unauthorized by appropriate statutes to the attention of the Coastal Zone Manage- ment Program at an early stage of the adoption proceedings. We May 6, 1977 MEMORANDUM FOR: PERSONS INTERESTED IN THE MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM FROM: PATRICK J. KENNY, ATTORNEY, NEW ENGLAND POWER SERVICE COuPA\Y Attached is a memorandum challenging the authority of the Massachusetts Secretary of Environmental Affairs to substantively regulate land use and energy facilities planning in the Coastal Zone and questioning the procedural adequacy of the use of Memoranda of Understanding to control agency rulemaking. APPENDIX C Enclosure ~~~~~~~~ .0 THE AUTHORITY OF THE SECRETARY OF ENVIRONMENTAL AFFAIRS TO SUBSTANTIVELY -2- REGULATE LAND-USE AND ENERGY FACILITIES PLAIOUNG IN THE COASTAL ZONE BY MEANS OF THE "POLICIES" FOUND IN THE STATE CZM PLAN (Particularly Nos. 28-33), AS INCORPORATED BY DRAFT REGULATIONS 6.1, 6.2 and 6.3, LACKS A planning...and coordinate" means little more than this. Read in SUFFICIENT FOUNDATION IN LAW. context, as it must be, this directive does not grant the Secretary broad power to "comprehensively plan" the substantive programs implemented by the various state agencies within the executive office. A. Chapter 704 of the Mass. Acts of 1969 does not The power to "comprehensively plan" is limited to the functions of the provide the Secretary of Environmental Affairs with executive office proper; and the power to "coordinate" activities of any authority to issue substantive regulations of the various line agencies refers, as the ensuing sentences make clear, any kind. only to organizational, procedural and budgetary matters. A fundamental reorganization of state government was affected by The "Comprehensive planning" power literally refers only to the 1969 c. 704. According to the CZM Plan, at p. 4-2, this reorganization executive office proper, which arguably includes the Secretary herself combined 43 different agencies and programs into one secretariat. and her four immediate "divisions". By contrast, the five "denartments" According to the Plan, "the legislature also recognized that this under EOEA are semi-indenendent aventies havi- t-hei r nwn enabling marriage of diverse programs would require central direction and thus legislation, duties and powers; and are tied to EOEA only by reason gave to the Office of The Secretary powers to plan and coordinate the of the l9bv government reorganization act, for the purposes intended operations of the individual programs, to have central budgetary thereby - namely, the rationalization of service delivery systems.1 responsibility, and to resolve conflicts." (at p. 4-2). If it extends at all toactivities of the line agencies, the "compre- hensive planning" power too must be limited to matters of administrative This interpretation of 1969 c. 704, as it relates to EOEA, coordination and the budget, as the ensuing descriptive sentences is generally accurate but contains one misleading implication: suggest. (These sentences, indeed, are descriptive of the above two 1969 c. 704 did not give the Secretary power to plan the operations powers of the Secretary, and not additive thereto. Note the absence of the individual departments and program under her roof. As of such words as "and" or "also"). Section 4, read as a whole, can codified in HGL. c 6A, 54, "Duties of the Secretaries", the 1969 sensibly yield no other conclusion. Act reads as follows: The nature of the power to "coordinate" activities of the line "Each secretary shall act as the executive officer of the agencies, similarly, is substantively sterile. As already noted, the governor for accomplishing the purposes of his executive purpose behind 1969 c. 704 (now MHL c. 6A) was non-substantive. That office. He shall conduct comprehensive planning with respect Act was an indiscriminate general reorganization effort to rationalize to the functions of said office and coordinate the activities the operation of related or overlapping departments and programs. and programs of the state agencies therein. He shall conduct 1969 c. 704, 650 clearly illustrates this point: studies of the operation of said agencies with a view to effecting improvements.... He shall from time to time recommend Such recommendations for further governmental re- to the governor such changes as he shall deem desirable in the organization to be made by the newly created laws relating to the organization, structure, efficiency or Executive Secretaries] shall be made with a view to administrative functions, services, procedures and practices the eliminating of duplication and overlapping in the of any such agency or agencies. He shall review and act upon functions, administrative practices and facilities of budgetary and other financial matters concerning said agencies, said agencies, the combination and coordination of in accordance with sections 2C, 3, 3A, 4, 9B and 29 of ch. 29." information systems, the creation of administrative structures which will assure coordinated and joint By virtue of this legislation, the Secretary obtained only b,,d-t-arv planning, the establishment of clear and identifiable and ministerial coordinating nowers over the departments newlv van'... 4,ed lines of authority and allocations of responsibility, within her ortIce. The general purpose of the 1969 reorganization was the coordination and consolidation of the delivery of nor to change tne substantive functions or services provided by the state services at state and regional levels and the various departments and programs affected, but to provide a more rational enlargement of career opportunities. scheme for their administration. The above language reflects this goal, precisely. The executive functions there enumerated authorize the The language here is consistent with that in MGL c.6A, 54, above, Secretary to act Upon budgetary matters, conduct efficiency studies, and with the spirit of the initial reorganization effected by the legis- and recommend such-changes in administrative organization and internal lature. The focus in each instance is on the coordination of service procedure as those studies may suggest. These are the Secretary's rock- delivery systems - not on the substance of the services-delivered. The bottom responsibilities. The directive to conduct "comprehensive Secretary's "planning" and "coordinating" powers, under 1969 c. 704, therefore, are clearly limited to budgetary or other ministerial concerns. -4- -3- EOEA's power to influence land use planning and regulation, as granted by 52(16), is likewise advisory only: to "assist other state and regional agencies in developing appropriate programs and policies relating Consequently, although the governmental reorganization act of 1969 to land use planning and regulation in the commonwealth." Section 2(16) also does place the following five "departments" - DEOE, DEM, HDC, F&A and fails to provide legal authority for the issuance of substantive regulations FoeRV - under EOEA; it does not provide any authority bv which the with the force of law purporting to affect, albeit less directly than &Secretary might mandatorily regu.late tne substantive Programs of these regulations under 52(17), the siting and operation of energy facilities. authority by which tne Secretary might directly and substanticlvely related activities are 2(9) and2(). The Secretary is thereby related activities are 652(9) and 2(10). The Secretary is thereby reguiate activities in the coastal zone. authorized to authorized to B. H.G.L. c. 21A. 55 2,3,4, contrary to the claims made at pages 4-2 to 4-8 of the CZM Plan, do not provide the Secretaryt usage of land, water, and air to of Environmental Affairs with any authority to issue substantive optimize and preserve environmental quality by regulations affecting energy facility siting and operation in the encouraging and providing for, in cooperation with other coastal zone. appropriate state agencies, planned industrial, commercial, recreational and community development. [52(9)] I. The powers granted to EOEA by c. 21A, 52 regarding land-use Planning and energy-related activities are purely advisory. [and to] provide for the preservation and abatement of and therefore do not provide a statutory baT!TrY-T1 a-tnM - water, land, air, noise, and other pbllution or tive regulation of these subjects by the Secretary. environmental degradation. [52(10)] EOEA was created as a cabinet level office within the executive These and similar subparts (notably �52(2)-2(7) and 2(11) might conceivably provide a basis for substantive regulation of the coastal zone having branch of the state government by M.G.L. c. 21A, added by Acts of 1974 c. 806. restrictive external impacs on enegy planning and pogams. The cotal zone having Section 2 of c. 21A details the powers and responsibilities of this office. directive of e2, to "carry out the state environmental policy"; and the Together with �5 3 and 4, section 2 allegedly provides statutory authority for provisions of 52(1), to "develop policies, plans and programs for carrying the substantive regulation of coastal zone activities. Relying on this out ... that] assigned duty;" might also be read to authorize substantive section, the Secretary has attempted to regulate, among other things, regulations that in turn tangentially affect energy programs. energy-related activities in the coastal zone by means of the policies found in the state's CZM Plan, which in time are soon to be made effective However, 9J 2(16) and 2(17) do not provide for direct imposition by regulation (see current draft reg's 6.1-6.3).2 In fact, the only of land use and energy planning regulations by the Secretary of Environmental EOEA regulations permissible under c. 21A, 52(28) authority (the power Affairs or by the Departments and Divisions within the Secretariat. In the to promulgate "regulations necessary to carry out their statutory :ase of a conflict or controversy involving land use or energy planning, one responsibilities") are those relating to (a) matters of administrative would expect these specific subparts to preempt the less specific. Such a procedure and coordination (pursuant to c. 6A, 54 and c. 21A, 653,4), conflict or controversy might arise, moreover, whenever a rule pursuant to (b) matters of the budget (c. 6A, 54), c t another subpart effectively does more than "analyze and recommend" on the ro rams vore in e subject of energy. The list of 28 enumerated 5 2 responsibilities, after cC. 2 d) planning for the functions of the Executive Office all, certainly appears to be definitive (all inclusive) and not merely proper tc. 6A, 94 and c. 21A, 53), end (e) the implementation of the illustrative of the concerns to be faced when "carrying out the state substantive functions of the Office proper (as defined by relevant environmental policy". The list of (28) specific duties, furthermore, portions of c. 21A, 52). Regulations promulgated by the Secretary, such covers at length a great breadth of subjects, thoroughly, one by one, in as the CZM Plan policies in question (in particular a's 28-33), cannot carefully chosen language. In some instances the Secretary is directed exceed and must conform to one of the above categories or be judged ultra to "develop", "encourage", "manage" or "provide" (subparts 1-3, 5-15, 19); vires. and in others to "assist", "advise", "analyze", "aid" or "recommend" (sub- parts 4, 16-18, 23, 27). In still others the duties of the Secretary are Of all the alleged sources for EOEA authority, only c. 21A, �2(17) clearly academic or educational, oriented towards research and the maintenance specifically addresses energy-related activities. Section 2(17) provides: of data banks (subparts 20-24). Finally, there are provisions calling for the in the process of carrying out the state environmental policy, the EOEA keeping of records and accounts (26), for the promulgation of necessary regu- shall "analyze and make recommendations, in cooperation with other state lations (28), and a specific authorization to receive federal grant money in and regional agencies, concerning the development of energy policies the name of the Commonwealth (25). The nature of this carefully articulated and programs in the commonwealth." This power is purely advisory. As scheme argues strongly that the treatment of a specific subject, such as such it cannot possibly serve as a foundation for the promulgation of energy, in a manner so as to severely restrict the powers of the Secretary substantive regulations having the force of law. procedures and practices, (and) promoting economy and efficiency". thereon, was deliberate. It further suggests that the scheme was intended The duties and powers here established are two: comprehensive to be complete and exhaustive. There is, in fact, no language present that suggests a contrary intent. Note also in this regard, that other, planning for the Office of the Secretary, proper; and coordination independent agencies, such as EFSC, are vested by the legislature with of all divisions and depart ments within the office including primary State jurisdiction over energy planning matters; and the rational enabling legislation, author ity and riesiiiis and which stan scheme of governmental reorganization begun in 1969 certainly would not generally independent of the Secretary except in matters budgetary or allow proliferation, at the cabinet level, of substantive and binding procedural. (Recalln.G.L. c. 6Ae 4 discussed above at pages *energy regulatory- powers. The first of these two powers clearly applies only to the functions of the Executive Office proper, and does not extend to the five semi- For all of the above reasons, ..L. c. 21, 2 fails to provide independent "departments" of EOEA. The language used here carefully EOEA with any authority to substantively regulate energy-rela ted distinguishes the "functions" subject to "comprehensive planning" - activities in the coastal zone by means of any regulation purporting those of "the office'; and the "activities" subject to "coordination"- to have the force of law - such as CZM polices #28-33. Note in this those of all "divisions and departments within the office." The fact regard, the claim made at page 4-9 of the CEZ Plan: that the Executive Office is composed both of four "divisions" directly within the Office of the Secretary, and five "departments" (each The effect of the Secretarry's regu lation ins that al containing many subdivisions and programs) that are more loosely attached EOgA agencies are to carry out the CZM Plan in full in to EOEA by virtue of c. 6A reorganization; supports the distinction drawn granting permits, in disbursing funds, or in conducting here, as in c. 6A, � 4, between the proper subjects of comprehensive secre- any kind of activity in the coastal zone. In other words, should an issue arise as to the weight to be given tarial "planning" and the proper subjects of secretarial "coordination". words, should an issue arise as to the weight to be given to CZM policies, they are to be dispositive. The activities of DEQE, DEM, MDC, F&A and WF&RV (the five semi- independent "departments"), according to this view, are subject only This statement is clearly erroneous insofar as it concerns CZM policies independent "departments"), according to this view, are subject only 28-33. The statutory responsibities of the Secretary are outlined in to the secretarial coordinating power. Read as a whole, c. 21A, p3, suggess M.G.L. c. 6A, 54 and c. 21A, 552,3, and 4. None of these sections as did the parallel language of c. 6A, ra that "Coordination" of line agency activities (aodS~_~ the off__e-f~__2~ direct the Secretary to "develop". "encourage", "manage", "providerdination" or otherwise substantively affect either "land use planning" or "energy pnlgpower as well) is anon-subs policies and programming in the Commonwealth." Its enumerated powers te ensuig sentence as a continuing review of "operations .. ith a f-e-tb--Xh ~ lmp' a inlstra lveC anrgan zatii-o ~ i =d~ i iiesi ...economy in these areas are purely advisory. The power to issue regulations, as and efficiency." Nothing herein suggests that the coordinating power granted in 6 2(28), is limited to the promulgation of rules "necessary was intended to effect Secretarial control over the substance of the to carry out. ..statutory responsibilities". Consequently, the only permissible substantive EOEA regulation of energy programming will be Secretarial power appears to be intended for the purpose of rationalizing purely advisory.3 They will neither carry the force of law, nor service delivery systems; not for the purpose of affecting, in any way, the bind third parties. Both independent State agencies and EOEA's own line content of the substantive services so delivered. Moreover, the words agencies, therefore, will be free to disregard CZM policies 28-33. Their "and" or "also" do not appear, so as to suggest not that the "review" promulgation and incorporation into formal executive regulations of the of operations was intended to be additive to but descriptive of the Secretary (6.1-6.3), carrying the appearance and claim of being legally coordinatin and planning) responsib ilities enumerated. binding, therefore, should be voided as an action ultra vires. 2. The powers rated to EEA by c 3 are largely Upon statutory powers of this nature the authority to substantively 2. The rowers zranted to EOA by c. 21A, J 3 are largely 1 - ministerial, or otherwise concerned with matters of internal reguplanning and energy program regulation are not among the, because land procedure, and wholly unrelated to substantive issues affect- use planning and energy program regulation are not among the "functions of the office", according to c. 21A, 52 (EOEA power in these areas, recall, ing land use planning and energy facility siting in the the "comprehensive planning" power is not substantive but only advisory): the "comprehensive planning" power coastal zone. established by 13 cannot.sustain CZH policies 28-33. In M.G.L. c, 21A, ! 3 the legislature has provided that "the Secretary 3. The powers granted to EOEA by c. 21A, 4 do not provide shall conduct comprehensive planning with respect to the functions of the office and shall coordinate the activities and programs of the departments a ny authority by which the Secretary mintht coastantively and divisions within the office. He shall continually review the operation of the office with a view toward improving administrative organization, -8- -7- activities as facility siting. The energy policies of the CZM Plan, M.G.L. c. 21A, � 4 adds to the Secretary's powers in the soon to be Secretarial regulations; therefore, cannot be premised on following language: the legal authority of c. 21A, 54(2). None of the possible parties to the type of voluntary agreement (MHOU) contemplated by �4(2), neither In order to enable him to coordinate and improve the the Secretary nor any of the five departments, have the authority to operations of all departments, divisions and other conduct substantive regulation of energy facility siting. Voluntary administrative units within the office, the Secretary agreements between the Secretary and independent (non-line) agencies shall have the following powers and duties ... such as EFSC, an authority that can regulate facility siting, do not provide a basis, under S4(2), for Secretarial implementation of such (1) the power and duty to resolve administrative extra-jurisdictional programs as the regulation of energy facility siting.5 and jurisdicitonal conflicts between any such agencies or officers; Consequently, neither 5�2,3 or 4 of c. 21A of the General Laws provide any authority by which the Secretary of Environmental Affairs (2) the power and duty to implement, upon request of might substantively regulate energy-related activities in the coastal zone. any such agency or officer, programs jointly agreed to by the Secretary and such an agency or officer; C. Assuming, arguendo, that the Secretary has some authority to issue substantive regulations affecting the coastal zone; she has (3) the power and duty to coordinate and improve nevertheless exceeded the limits of her delegated authority to program activities involving two or more agencies carry out the state enviornmental policy because substantive energy or officers. regulations (CZM policies 28-33) have been issued without legal foundation. The conflict resolution power granted in 54(1) is restricted to "administrative and jurisdictional conflicts" between line agencies. As already detailed, the Secretary has no legal authority to This is perfectly consistent with the preceding interpretations of promulgate and implement substantive energy regulations such as those secretarial "coordinating" power under c.6A, 54 and c. 21A, 13. As in found in CZM policies 28-33. Even assuming, arguendo, that the the case of such ministerial coordinating power, �4(1), here, cannot Secretary has some authority under relevant subparts of c. 21A, �2 be reasonably construed to provide legal authority for the substantive to issue substantive regulations affecting the coastal zone, the regulation of energy programs by the Secretary. The powers granted promulgation of policies 28-33 constitutes an ultra vires action. pursuant to �4(3), moreover, present an identical case. Their subject, "coordination and improvement" of line agency activities EOEA's delegated authority may be found in c. 6A, � 4 and c. 21A, where two or more such agencies are involved, was the essence of the �52,3 and 4 of the General Laws. It has already been shown that none S 3 directive. Generally speaking, � 4 appears to be a footnote to � 3, of these statutory sections authorize substantive energy regulation illuminating specific aspects of the Secretary's general "coordinating" or land use planning. Neither can this defect be cured by reliance on powers. Section 4, after all, is introduced with the words: "In order c. 21A, �2's general authorization to "carry out the state environmental to enable him [the Secretary] to coordinate and improve the operations policy." The language used is clear. Its directive is to "carry out", of all departments ...with the office...." For comparison's sake, recall not "create" that policy. EOEA may not claim the power to substitute that the �3 directive was to "coordinate the activities and programs for the legislature in this respect. The legislature has not granted of the departments.. within the office... [and] review the operation of such power, and could not legally do so without first providing standards the office with a view towards improving administrative organization ...." (either express or implied) by which EOEA would determine that policy. Given this relationship between �� 3 and 4 it is difficult to imagine Given this relationship between 5S 3 and 4 it is difficult to imagine In c. 21A, � 2(1) EOEA is further authorized to "develop policies, plans, how �4 might succeed in supporting substantive energy regulations where In c. 21A, 2() A is further authorized to "develop policies, plans, h3 failed to provide legal authority for the same ennd programs for carrying out their assigned duties;" to wit, the carrying out of the state environmental policy, and the ministerial coordination of the This same infirmity also affects �4(2), which, in addition, is self- office and its departments (as per �� 3 and 4). CZM policies 28-33 developed l imited to the secretarial implementation of Joint programs voluntarily presumably under . 21A, � 2() authority however advance neither the entered-into by the Secretary and her line agencies. Such implementation state environmental polic as found and elucidated in various acts of the proceeds only upon request of the latter and presupposes that the latter of non-delegation followed have the statutory authority to conduct such programs. Nolegslature. Under the constitutional doctrine have the statutory authority to conduct such programs. Note, of the five in this state, such a defect is fatal. Clearly stated in Commonwealth v. EOEA departments, not one has authority to regulate such energy-related Diaz, 326 Mass. 525 (1950);6 this doctrine prohibits the legislature a70 il -10- -9- Because the above regulations are not justifiable under c. 21A, If 2, 3 from delegating purely legislative authority such as power or 4, as demonstrated supra, they have already failed to satisfy the to make or create policy. Only the power to fill in Diaz requirements as regards one of the three identifiable legislative details or further develop a policy already legislatively established statements of the state environmental policy. may be delegated - and only if the legislature provides the agency so authorized with sufficient guidelines for the task. The enumerated In addition, the Massachusetts Environmental Policy Act, M.G.L. subparts 2(2) to 2(28) appear to satisfy this condition. Legislature c. 30, 5 61, which directs: statements of the state's basic environmental policy, and guidelines for its further development by EOEA, may be found here and in other All agencies, departments, boards, commissions, and auth- statutes; notably M.C.L. c. 30, 561 (M.E.P.A.), and article 49/97 of orities [to). . .determine the impact on the natural the state constitution. The 52(1) authorization, therefore, generally environment of all works, projects or activities conducted appears to be valid in form. Nevertheless, the various CZM policies by them and. . .use all practicable means and measures to actually promulgated, and the purposes promoted thereby, may still minimize damage to the environment. .... [emphasis addedl. lack sufficiently identifiable legislative sources. Any given "determination" of the state environmental policy made by EOEA may, provides no authority for EOEA to promulgate policies 28-33. upon proper scrutiny, fail to meet the tests established by the Diaz line of cases. In the present case, CZM policies 28-33 should (but Substantive energy regulation is not an "activity conducted by them," db not) have an established basis in law, and should be (but are not) where EOEA divisions and departments are concerned. Similarly, article designed to promote an end enumerated by the legislature in one of the 49/97 of the Constitution: above mentioned legislative statements of the state environmental policy. The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the CZM policies 28-33, soon to be formal regulations of the natural, scenic, historic, and esthetic qualities of Secretary when incorporated into regulations 6.1-6.3, do substantively their environment; and the protection of the people in affect the development and planning(and therefore the substantive their right to the conservation, development and utili- regulation) of energy-related activities in the coastal zone:7 zation of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to 28) Maximize the use of existing oil terminals. For new be a public purpose oil terminals, ensure that enviornmental impacts and effects on port operations are appropriately considered. fails to provide such authority. This definition of public purposes and environmental rights might well be construed to include appropriate regu- 29) Consider the siting of oil tank farms in areas outside lation of energy-related activities. EOEA, however, is the wrong office the coastal zone. to exercise substantive energy regulation powers, because such-powers are beyond the Jurisdiction of the Secretary and her several line agencies. 30) UWigh the environmental and safety impacts of locating Any EOEA regulation, pursuant to. 2(28), or policy pursuant to S 2(1), proposed coastal gas facilities at alternative sites. regardless of its relationship to some legislative statement of the state environmental policy (such as Article 49/97) would nevertheless be invalid 31) Consider alternative sites, including inland locations, if designed to carry out something other than the Secretary's "assigned prior to siting electric generating facilities in the duties" or "statutory responsibilities", Precisely because EOEA 5 2 powers coastal zone, are carefully defined and the subject of energy-related activities specifi- cally, and restrictively, treated in 5 2(17), CZM policies 28-33 are not 32) Consider alternative sites, including inland locations, proper exercises of a valid delegation superficially justifiable under for refineries. For deepwater ports consider alternative Article 49/97, or any other proper statement of the state environmental coastal sites to ensure that harm to the marine environ- policy.8 ment is minimized. D. Assuming. arguendo. that the Secretary has some authority to issue substantive regulations affecting the coastal zone: any eneryv- 33) In exploiting indigenous or alternative sources of related regulations so issued are not binding on or enforceable energy (off-shore oil and gas, coal, solar, wind, and against third parties. tidal power) minimize, to the extent practicable, adverse impacts on the marine enviornment, especially i. CZM policies 28-33. in particular. are not mandatorily binding with respect to fisheries, water quality, and wildlife, upon the office's five departments under c. 21A, 5 2; neither and on the recreational values of the coast. are they capable of being voluntarily assented to by those departments (by MOU) under c. 21A, S 4(2). -12- The power of the Secretary to bind her line agencies by regulation on matters affecting the substance of energy programs is minimal. As do not have the force of law and cannot be enforced against already seen, the "comprehensive planning" and general "coordinating" independent third parties. powers (see c. 6A, � 4 and c. 21A, � 3) of the Secretary are severely limited. Similarly, c. 21A, � 2 fails to grant the Secretary any It is not inconceivable, however, that independent third substantive program control over the services delivered by the five parties, such as the EFSC, might voluntarily accept EOEA "advice" departments. Every power granted the Secretary by � 2 is also granted promulgated in CZM policies 28-33. An independent energy-activity to each of the line agencies. The effect of this grant to both "the regulator like EFSC, though, cannot voluntarily bind itself to office and its appropriate departments" is, as stated at pages 4-4 and follow policies 28-33. EOEA's own substantive energy-regulating 4-5 of the CZM Plan, to superimpose upon the enabling legislation of authority is still limited to advisory policies; and because the each department the duty to "carry out the state environmental policy EFSC is not an agency "within the office", it is not "such an in the manner directed by Section Two". (Emphasis added.) The effect agency" contemplated by � 4 (2), and cannot transfer by request, of this direct mandate is to suggest that EOEA line agencies are sub- under the auspices of 1 4 (2), its authority to implement substantive stantively independent of the Secretary.10 Identical and equal powers and legally binding energy regulations. are granted by � 2 to the Secretary and to the five departments. It follows logically from this, and from earlier discussions of the The legality of any MOU between the Secretary and an independent "planning" and "coordinating': powers of the Secretary, that in most agency like EFSC, in fact, cannot be found on 5 4 (2); but must cases and under normal circumstances (i.e., absent specific legislative rest, if at all, on � 2 (26), the Secretary's power to contract. direction to the contrary) substantive environmental regulations of Even so, CZM policies 28-33 may be void because, as already seen, the Secretary are not mandatory upon the several line agencies. CZM the Secretary has no independent authority by which to issue them - policies 28-33, when finally incorporated into executive regulations except in an advisory capacity. The power to contract with EFSC 6.1 - 6.3, will be such substantive environmental regulations. on a given subject presupposes that both parties wield authority relevant to that subject. An MOU with EFSC cannot create in EOEA Of course, line agencies may voluntarily bind themselves to the power to regulate energy facility sitings - a power not granted to substantive regulations of the Secretary. M.G.L. c. 21A, � 4 (2) it by the legislature. The extent of the Secretary's energy-related appears to authorize this, moreover, even if the Secretary has no powers being advisory only, therefore, an EOEA-EFSC MOU might authority of her own for issuing substantive regulations on the properly appraise the latter of CZM policies 28-33. Such an MOU, subject - as long as the line agency involved has such authority. however, could not bind the EFSC to follow Secretarial energy "advise", The problem with CZM policies 28-33 is that neither the Secretary because to do so would change the character of EOEA powers regarding nor any of the five line agencies have authority to regulate such energy activity regulation in contradiction of expressed legislative matters as energy facility siting and planning. An MOU, authorized direction. It follows, therefore, that any EOEA-EFSC MOU respecting byA- 4 (2), between the Secretary and any of her line agencies, CZM policies 28-33 is not legally binding, and might be followed or pledging the various departments to follow policies 28-33, disregarded at the pleasure of the EFSC. therefore, would be a nullity, because the subject agreed to is outside the lawful jurisdiction of the parties.11 Note - the only energy-related authority held under c. 21A, � 2 by the Secretary or her departments is an advisory power, the power to "analyze and recommend", granted by 5 2 (17). CZM policies 28-33, if directed to the five departments, even if assumed valid as advisory regulations, would be meaningless because, at most, they would only constitute direction on how to advise others on the subject. 2. CZM policies 28-33, in particular, are not mandatorily binding upon, nor are they capable of being made voluntarily binding (via MOU) upon, independent agencies. As already seen, c. 21A, � 2 (17) provides that EOEA power to substantively regulate energy-related activities is at most advisory, only. As a result, such regulations as CZM policies 28-33 -13- -14- ~5 ~~~ ~5~~~~ OFootnotes ,s _ _ 1. See argument I B (3), infra; and Appendix and Footnote 12. ,'~~~J~ �~~~ -<~ NSee also argument I D (1), infra. Z a 2. Draft regulations 6.1, 6.2 and 6.3 may be found at "Appendix A" a M of the State CZM Plan, as submitted to the U.S. Secretary of '1 I - _____ Commerce. -- _- ~ ~ 3 -3. Note - nonsubstantive regulations affecting the administrative t ., T3 procedures of any EOEA line agency that regulates energy-related 5 0 0 a e 'o activities are, of course, permissible under the Secretary's 0 m Q , a F' c. 6A, S 4 and c. 21A, 5 3 ministerial "coordinating" and aX ~~~~~~ �~~~~~~~~~~~ obudgetary powers. The regulations (CZM policies 28-33) M~~~~~~ o W ; o n n complained of, however, are not of this type. EOEA line e s oCagencies, furthermore, have no energy-regulating authority, as~~~~~~~~~~ c > 9 < ^ Tsuch as would be even potentially subject to CZN policies 28-33. ,' X F~-~-. If it were decided that these policies are nonsubstantive, om~~~~~~~~ a a < they would still not be mandatorily enforceable under c. 21A, b 6" - 5c 3; because that section applies only to EOEA line agencies, - - -. o none of which have substantive energy-regulating powers of the - - - ' .....,- f type considered in policies 28-33. a 4. Sea also footnote 1, supra. '1 am a 4 ' 1 " 0 5. See argument I D 2, at pages 20 ff, infre; where it is explained in ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~a an X~ *** � wmore detail that voluntary contracts or MU's with independent - -~~ -~ - - . z -Z third parties cannot grant to EOEA powers that the legislature go � =� :: has chosen to invest in those third parties and not in EOEA. 2X~~~ ^ c Thus an MOU with EFSC, because it cannot be justified under Hw 3:� �51S 4 (2) but only under 5 2 (26), if at all; cannot provide EOEA ,' � ~~ Ig~~ ,~ 3with any authority to promulgate CZM policies 28-33 as formal _-~ _-~ _ -~ _ -~~ *0~ I~ ~and bindin g regulations of the Secretary. Such regulations cannot have the force of law and must be void. 'a C 3 , . s _ 36. Commonwealth v. Diaz, has not been overruled since it came w ~ ~~ ~~ s~ ~~~~~ -E ~~ t s _ down in 1950. It has, in fact, been impliedly reaffirmed, �~~~~ ne~ ~ a�~~~~~~ -~ o nmost recently, in Town of Arlington v. Board of Conciliation > m ' a � and Arbitration, 76 Mass. Adv, Sheets 2035, at 2043 (1976). wa ~~~~ ~ ~~- n ~~ ~ ~~- o - : -7. Energy policies 28-33 are discussed in detail, along with w '~ ~ 0 2" ~ fitheir expected impact and intended implementation measures, o a & t w" x _at pages 3-F/32 to 3-F/41 of the State's CZM Plan. o o? (5�a 0~~~~~~~~~~~~~~~~. - Q _S. In this connection, note the CZM Plan interpretation of the -~~~~~~~~~ o5 ~~ o Y S 2 authorization, at page 4-5 of that document: "Section a o � Two does not expand basic agency jurisdiction or authority, but it does serve to define or focus the direction of such Xt$ > g * = g g -~~~~~ authority. It does not require agencies to undertake new - 2 o . . oo~~~~. -15- -16- programs which are beyond the scope of their authorizing legislation." This is consistent with our view of � 2. II. USE OF MEMORANDA OF UNDERSTANDING. It defines EOEA authority, and does not compel or authorize programs in excess of the authority so defined. I refer to the memorandum of Michael T. Gengler submitted with this memorandum for a discussion of the impermissibility of the 9. See arguments I A and I B (2), supra. Coastal Zone Management Program using specific licensing statutes in Massachusetts as the basis for promulgating a system of regulations 10. This supports the arguments made earlier (I A and I B (1)) establishing a predetermined system of permitted and prohibited land that Secretarial "planning" and "coordination" are limited uses. Mr. Gengler's memorandum also discusses the impermissibility of to the office proper and to nonsubstantive, ministerial limiting by regulation the factors required by statute to be considered matters, respectively. in permit and licensing proceedings. 11. Compare sample MOU's provided in CZM Plan "Appendix A". As Mr. Gengler's memorandum points out, a Memorandum of Under- In this regard, please note that it is also questionable standing in which an agency agrees to issue permits only for specified whether an MOU, agreeing to support the CZM Plan, en masse, permitted uses would constitute a "requirement of general application constitutes a "program" for purposes of c. 21A, 4 (2). and future effect. . .adopted by an agency to implement or interpret It is unlikely that any given department (party to such an the law enforced or administered by it. ." and thus fall within the MOU) has the legal authority to conduct a "program" encompass- definition of "regulation" in M.G.L. c. 30A, I 1 (5). Such a ing all of the policies contained in the Plan. The MOU's Memorandum of Understanding would be subject to the limitations appearing in "Appendix A" of the CZH Plan, therefore, may be referred to in the preceding paragraph. infirm in this respect. Also, such a Memorandum of Understanding as an M.G.L. c. 30A, 12. As described by the state CZM Plan at page 4-13, "The Office 5 1 (5) "regulation" would not be effective or enforceable unless of the Secretary within the Executive Office of Environmental adopted pursuant to the public notice requirements of M.G.L. c. 30A, S 2 or Affairs is the overall fiscal, policy, planning, and legal S 3, whichever were applicable. Failure to comply with the applicable decision-making entity for environmental matters. Besides notice requirements renders agency rulemaking actions invalid except the Secretary and his/her immediate staff, there are four for certain limited emergency regulations; M.G.L. c. 30A, S 3A. M.G.L. units within the Office of the Secretary: the Coastal Zone c. 30A, 85 5 and 6 require submission of copies of regulations adopted Management Program; the Division of Conservation Services; by an agency to the State Secretary for publication in the State Register. the Massachusetts Environmental Impact Review Program; and Compliance with the rules adopted by the State Secretary for submission the Division of Law Enforcement." of regulations and the publication of regulations in the State Register are preconditions to the effectiveness of all but emergency regulations. In addition, the Executive Office, but not the Office of the Secretary, includes the following five departments: the We are not aware that any formal rulemaking proceedings have been Department of Environmental Quality Engineering; the Depart- completed concerning the Memoranda of Understanding of the Secretary ment of Environmental Management; the Department of of Environmental Affairs and the agencies within her secretariat. We Metropolitan District Commission; the Department of Fisheries, are not aware that any such Memoranda have been submitted to the State Wildlife & Recreational Vehicles; and the Department of Food Secretary or been published in the State Register. Thus we must con- & Agriculture. clude that such Memoranda do not yet have general application and effect and that they cannot bind the actions of the agencies as they relate to the enforcement and interpretation of the statutes under their care in a manner that affects the rights of and procedures available to the public. The requirements in M.G.L. c. 30A, S5 2 and 3 for proper notice and for public hearings and/or opportunity for presentation of views are no mere empty formalities. It is the clear policy of M.G.L. c. 30A to encourage meaningful public participation in agency rulemaking. If a Memorandum of Understanding signed prior to a formal rulemaking proceeding is intended to dictate the results of the proceeding in 217q -17- advance, then meaningful participation and comment by the public in the rulemaking process would be prevented. This would run counter to the policy of M.G.L. c. 30A, i� 2 and 3 and the public participation requirements of � 306 (c) (1) of the Coastal Zone Management Act. If it were argued that Memoranda of Understanding are not intended to be construed as effective regulations with the force of law but merely as internal agency guidelines then there would be no obligation that private parties conform their conduct to such Memoranda, that other agencies respect the Memoranda as having the force of law, or that future heads of agencies or Secretaries of Environmental Affairs be bound by the contents of any such Memoranda. Given such infirmities it is difficult to see how a Memoranda of Understanding could be used to demonstrate that a Coastal Zone Management Program contained powers sufficiently "enforceable" for Federal Approval of the Coastal Zone Management Program under 15 306 (c) (7), 306 (d), and 306 (e) of the Coastal Zone Management Act. Perhaps it is intended that the Memoranda of Understanding be binding with the force of law on independent agencies, i.e. that such agencies with discretionary powers would be bound by the CZM policies to the same extent that they would be bound by statute. the force of law certain criteria must be met. A regulation has the force of law if the issuing agency has the power to issue it; if it is a "regulation" as defined by c. 30A, 6 1 (5), if it is properly promulgated pursuant to c. 30A, if 2 and 3, and if it is consistent APPENDIX D with the governing statute of the agency. (See Mt. Vernon Co-operative Bank v..Gleason, 250 F.Supp. 952 (D. Mass. 1966).) (See also DaLomba's Case, 352 Mass. 598 (1967).) For the reasons stated above several of the CZM policies (especially policies 28-33) and all of the Memoranda of Understanding devised to implement them fail to meet these tests. Thus they cannot have the force of law. DRAFT COMMENTARY ON CERTAIN LEGAL ISSUES INVOLVED IN THE PROPOSED DRAFT COMMENTARY ON CERTAI LEGAL ISSUE$ MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM DRAFT COMMENTARY ON CERTAIN LEGAL ISSvuE INVOLVED IN THE PROPOSED Date: October 17, 1977 MASSACHUSETTS COASTAL ZONE NMNAGEMENT PROGRAM Date: October 17, 1977 The following draft commentary explores in sumiary fashion selected legal aspects of the pruposad Massachusetts Coastal Zone Management Program (the "CZM Plan'). The topics covered in the commentary are not intended to be an all-in- clusive survey of our disagreements with the CZM Plan. This commentary does not address serious problems which have been raised concerning the merits of the proposed CZM policies. Citations to the CZM Plan refer to the two-volume document entitled "Massachusetts Coastal Zone Management Pro- pREPARED BY: ~PREPARED B~~y'.~ ~gram" dated March 18, 1977. Also referenced in the legal Garen D. Bresnick - Home Builders Association of Massachusetts analysis is the Draft Environmental Impact Statement Michael T. Gengler - Rich, May, Bilodeau & Flaherty issued as of October 14, 1977 (the "DEIS"), by the National Patrick J. Kenny - New England Power Service Company patric*A Z. yeny - New England Power Service Company Oceanic and Atmospheric Administration, which contains the Francis M. Lee - Boston Edison Company Francis M. dLeed - GetBBosto n Edison Coomprany preliminary federal approval of the CZM Plan, and an Addendum Robert R. Ruddock - Greater Boston Chamber of Commerce to the CZM Plan issued October 7, 1977. We have concluded that the CZM Plan will have a significant unfavorable impact on existing legal procedures for administering state and federal permit and grant programs, and that major portions of the CZM Plan are contrary to exist- ing Massachusetts statutes. October 17, 1977 with the CZM Plan. CZM Plan, p. a-33. Each commissioner I, THE CZM PLAN IMPOSES NEW STANDARDS ON ACTIONS within EOEA has agreed in Memoranda of Understanding" to By REGULATORY AGENCIES, IMPOSES A NFW LAYER BY REGULATRY AGENCIE, IMPOSES N~w LAYERwithin EOFE% has agreed in "Memoranda of Understanding" to OF BUREAUCRACY ON THE PERdITTING PROCESS, AND OF BUREAUCRACY ON THE PERMI TTING PROCES S, AND adopt as his own regulation this regulation of the Secretary, ADDS NEW REVIEW PROCEDURES. The Massachusetts and federal offices of Coastal Zone including the entire CZM Plan. CZM Plan, pp. a-9 through a-18. Management have repeatedly asserted that 'the Massachusetts The Secretary's regulation requires all EOEA agencies "to ap- Coastal Zone Management Program does not include new laws or ply CZM criteria when they take a lawful action in the coastal increase the present number of state or local permits required zone." CZM Plan, p. a-34. The CZM regulations will make the for development activities." CZM Program, p. 26; DEIS, p II-1. 800-page Plan itself, rather than existing statutes or regula- This statement implies that the Plan does not add anything tions, the operative authority for reviewing applications for new to existing state regulatory programs for managing private permits. and governmental activities. The Plan does, in fact, embody (b) New CZM Bureaucracy In addition to creating new and unauthorized legal drastic alterations in the standards currently used by regu- In addition to creating new and unauthorized legal latory agencies within the Executive Office of Environmental procedures, the Plan will create a new layer of bureaucracy. Affairs (EOEA) and the Energy Facilities Siting Council under The new Massachusetts office of coastal zone management, which existing statutes to decide applications for permits. has been created in EOEA without any legislative authorization, (a) New CZM Standards is asserted to have the following powers: The CZM regulation to be adopted by the Secretary (1) To receive notice of, and to review, any state or federal project or permit appli- entire CZM Plan by ~~~~cation within the coastal zone. CZM Plan, of Environmental Affairs incorporates the entire CZM Plan by c ation within the coastal zone. CZM Plan, pp. a-49 and a-54. reference, and directs all EOEA agencies and the Secretary (2) To determine whether applications for to implement the Plan and enforce their laws, process regula- federal grants, proj ects or permits in the coastal zone are consistent with the tory reviews, conduct program activities, disburse funds, con- CZM Plan, and to veto any such federal grant, project or permit which is deter- struct works, supervise the construction of works, or other- mined to be inconsistent with the CZM Plan. CZM Plan pp. a-54 and a-60. wise administer their programs in the coastal zone consistently -79 -4- calls for an action beyond that permissible at law; and (3) (3) To intervene as a party in adjudicatory proceedings before EOEA agencies which whether exception to the plan should be granted for "substan- may affect the coastal zone. CZM Plan, p. a-40. tial and compelling public interests or concerns." Actions (4) To intervene as a party in adjudicatory of EOEA agencies must be consistent with the decision on appeal proceedings before the Energy Facilities Siting Council which may affect the by the Secretary. However, review of adjudicatory proceedings coastal zone. CZM Plan, p. a-20. (5) To obtain administrative review by the is governed exclusively by the permit statutes and the state (5) To obtain administrative review by the Secretary of Environmental Affairs of Administrative Procedure Act, G.L. c.30A. decisions by EOEA agencies which may affect the coastal zone. CZM Plan, p. a-37. (6) To appeal to the courts from any decision II. FEDERAL ADOPTION OF THE STAN_ CZM PLAN, EVEN rendered by an EOEA agency in an adjudi- WITHOUT FULL STATE IMPLEMENTATION BY MEANS OF catory proceeding involving the coastal LAWS AND REGULATIONS, WILL, ACCORDING TO THE zone. CZM Plan, p. a-40. This power is DEIS, MAKE THE PLAN EFFECTIVE FOR CZM REVIEW absolutely contrary to law. G.L. c.12, OF FEDERAL ACTIONS AND PERMITS, INCLUDING 53; Secretary of Administration and Finance DEVELOPMENT OF GEORGES BANK OIL AND GAS. V. Attorney General, Mass. Adv. Sh. (1975) 665. Federal approval of the CZM Plan gives the state coastal These asserted powers of the Coastal zone management zone management office a veto power over all federal projects office will add to the confusion, delays, and red tape presently and federal permit applications within the coastal zone. 16 existing within the ROEA and at the Energy Facilities Council. U.S.C. �1457(c)(1). Included in federal actions subject to (c) New CZM Procedures veto by the state coastal zone management office are all NPDES All administrative actions taken by EOEA agencies water discharge permits, federal licenses to construct energy in adjudicatory hearings will be reviewable on the merits by facilities, and all activities connected with the development the Secretary on the petition of any EOEA agency, including of Georges Bank oil and gas production, including exploration the new-Massachusetts office of coastal zone management. CZM plans, mineral leases, and licenses for drilling and for con- Plan, pp. a-37 through a-40. Under the CZM Plan, the Secretary struction of pipelines. CZM Plan, p. a-54. may hold a hearing to determine (1) whether the action complained of is inconsistent with the CZMl Plan; (2) whether the CZM Plan as Economic Development Administration grants. The Executive In addition, the Plan will, through the federal approval Office of Environmental Affairs, by means of the CZM Plan, will process, acquire new stature as a statement of governmental obtain a veto power over public service investments in coastal policy even if implementing regulations have not been developed communities, such as transportation and sewage treatment grants. at the state level. See DEIS, p. IV-3. The CZM Plan may be cited as an authority by opponents of coastal zone development, and its mere existence as an approved federal document will IV. EOEA AND ITS AGENCIES LACK AUTHORITY TO ESTABLISH influence state and local actions within the coastal zone. AND ENFORCE THE CZM LAND USE AND ENERGY POLICIES, State agencies and local authorities such as conservation The proposed Massachusetts CZM Plan illegally attempts commissions may be encouraged to use the CZM Plan even though to vest land-use control and energy-siting powers in the final state approval and implementation have not been completed. Executive Office of Environmental Affairs. For example, CZM policies 1, 2, 8, 28, 29, 30, 31 and 32 would flatly probibit III. THE CZM PLAN EXPANDS STATE ROLE IN DETERMINING the siting of most energy facilities and deep-water port facil- PERMISSIBLE LOCAL DEVELOPMENT. Under the CZM Plan, cities and towns retain local zoning ities in areas designated as "areas for preservation or restor- authority. However, the DEIS asserts that most types of major ation" (APR's). The functions of EOEA are set forth in G.L. developments will be regulated by the state, or by local con- c.21AO 52. Of the 28 enumerated functions, only #16 expressly refers to land-use planning, and only #17 expressly refers to servation commissions subject to state review. DEIS, p. 111-3. energy policy, These two functions are advisory only and are The DEIS recognizes that the CZM Plan will shift some develop- ment activity inland, affect property values, property tax not intended to vest in EOEA any power to prohibit specific revenues and resource extraction or exploration. DEIS, p. 111-4. land uses in advance of permit application, or to require the The CZM Plan leaves only 21% of the coastal zone immediately Massachusetts Energy Facilities Council or any other agency-to suitable for new development. DEIS, p. III-4; CZM Plan, p. 292. adopt specific energy policies or land-use prohibitions. The CZM Plan will also interfere with the power of local com- munities to obtain federal funds for development projects, such There is no statutory power in EOEA to establish or en- the activities of the departments and divisions within the force land-use controls over a tract of land based upon the EOEA. The Secretary is further authorized by G.L. c.21A, S4, to 'resolve administrative and jurisdictional conflicts be- mere fact of designation of the tract as a critical area of tween any such [EOEA] agencies or officers; . . . to imple- concern or as an APR. Thus, a policy of EOEA to encourage other agencies to ban activities in APR's has no binding effect, ment, upon request of any such [EOEAJ agency or officer, pro- nor does it confer on other agencies any independent power to grams jointly agreed to by the Secretary and such an agency or officer; . . . to coordinatt- and improve program activities establish such a ban. Similarly, neither EOEA nor its agencies are authorized under the Wetlands Protection Act, G.L. c.131, involving two-or more JEOEA1 agencies or officers The power of "comprehensive planning" is clearly confined to the S40, nor the Wetlands Restriction Act, G.L. c.130, S105, and c.131, 540A, to adopt and enforce a predetermined system of functions of the office of the Secretary itself. These func- prohibited or priority uses of land. tions do not include the issuance of substantive regulations concerning land-use planning or energy policy. The 'coordination" V. THE SECRETARY OF EOEA LACKS AUTHORITY 'To ADOPT of activities does not imply any power of the office of the THE CZM PLAN AS AN ENFORCEABLE REGULATION. Secretary to issue substantive regulations binding private The CZM Plan contains a proposed regulation to be adopted parties as to energy and land-use planning. Likewise, the by the Secretary of Environmental Affairs which will have the power to resolve "administrative" and "jurisdictional" con- effect of promulgating the entire CZM Plan as a binding regu- flicts refers to matters such as manpower and budget priorities, lation. CZM Plan, pp. a-22, a-30 and a-33. The alleged power inter-agency geographical boundaries and other such ministerial of the Secretary. of Environmental Affairs to promulgate the administrative' and "jurisdictional" matters. CZM Plan as a binding regulation is principally based on the The power of the office of the Secretary to implement provisions of G.L. c.21A, 553 and 4. *The Secretary is autho- programs jointly agreed to by the Secretary and a line agency rized by G.L. c.21A, 53, to conduct comprehensive planning upon the request of the line agency is limited to programs with respect to the functions of the EOEA and to coordinate that are within the jurisdiction of the line agency to begin with. Neither the office of the Secretary nor any agency within with current health, environmental protec- the EOEA has the power to establish land-use or energy-siting tionh, and r esource use and development policies as adopted by the commonwealth . . . controls through a system of permissible or priority uses. The G.L. c.164, S69J. CZM Plan contains several examples of such systems. See Policies The Siting Council has stated in its regulations that it will 1, 2, 8 and 17 of the CZM Plan. consider only those health, environmental protection, and To the extent that the CZM land-use and energy policies resource use and development policies of the Commonwealth are advisory and unenforceable under Massachusetts law, these which are set forth in the state constitution, general laws, policies are not binding on federal agencies in issuing federal and duly promulgated rules and regulations of responsible permits or grants. Despite these serious defects, the DEIS as- state, regional or local agencies having the force of law. sumes the enforceability of many of the land-use prohibitions EFSC Regulations, Rule 62.9(3). The following aspects of the contained in the CZM Plan without the adoption of any additional CZM Plan are unlawful because they conflict with the statutory Massachusetts legislation. DEIS, p.11-7. standards applicable to Siting Council action, and are not authorized under the EOEA Reorganization Act, G.L. c.21A: VI. THE CZM PLAN ATTEMPTS TO INTERFERE WITH THE (1) EOEA cannot establish land-use and energy- STATUTORY DISCRETION AND AUTHORITY OF THE siting policies which are binding on EFSC. ENERGY FACILITIES SITING COUNCIL. See, e.g., Policies 1, 2, and 8; pp. IV-4 to IV-6 of DEIS; p. 4 of Addendum; p. 7 of The Energy Facilities Siting Council has the following Memo dated August 23, 1977, attached to DEIS. statutory obligations: (2) EOEA cannot bind EFSC to the principle of "coastal dependency" and dictate the scope (1) To implement the energy policies contained of its review. See, e.j., pp. 4 and 5 of in G.L. c.164, S�69H-69R, "to provide a Addendum- MOU, p. a-19. necessary energy supply for the Commonwealth with a minimum impact on the environment at (3) EFSC cannot be required to disapprove the the lowest possible cost." G.L. c.164, S69H. siting of energy facilities in APR's. See Policy 2; p. 4 of Addendum; and the various (2) To approve long-range forecasts of gas and policies in the Energy Chapter. electric companies, and plans for construc- tion, if'it determines, inter alia, that such (4) The Secretary of EOEA, as a member of EFSC, forecasts and construction "are consistent cannot be an advocate of environmental con- cerns, but must be an independent and objec- tive adjudicatory officer. See p. 3 of Memo dated August 23, 1977, attached to DEIS. oiql -12- -13- Plan, p. 88. Policy 27 prohibits the granting of permits for (5) EOEA cannot in the manner proposed impose on the energy industry (and EFSC) eighteen new private actions if there would be an adverse effect on a recrea- standards or policies. See p. 5 of Addendum; p. IV-6 of DEIS; and p. 7 of Memo attached to tion site. CZM Plan, pp. 215-16. Policy 13 would be imple- DEIS. m(6) EOEA cannot by MOU bind EFSC to issue regula ented to control the visual impact of private activities in (6) EOEA cannot by MOU bind EFSC to issue regula- tions or an administrative bulletin to imple- the coastal zone. CZM Plan, pp. 145-46 and 148. Policy 14 is ment the CZM Plan; to recognize the CZM Plan, as approved by the Governor, as state environ- vaguely worded, and purports to require the minimization of mental policy; to submit Company submissions to EOEA prior to hearing before EFSC: to recog- adverse impacts from private projects near existing or poten- nize the standing of the CZM office in EFSC proceedings; to give "prime consideration" to tial historic districts. CZM Plan, pp. 149-152. environmental impacts of facilities proposed for areas of critical'environmental concern. The statutes to be used by EOEA to carry out these re- See text of MOU at p. a-19 of Plan. (7) Policy 33b, requiring the acceleration of strictions apply to carefully defined geographical limits. (7) Policy 33b, requiring the acceleration of solar and wind power and conservation measures, See, for example, G.L. c.131, 540 (Wetlands Protection Act); as set forth in the CZM Plan Addendum dated October 7, 1977, cannot bind agencies charged G.L. c.130, 5105 (Wetlands Restriction Act); and G.L. c.91, with the responsibility to review proposed energy facilities under existing statutory energy facilities under exi sting statutory 514 (Waterways Program). These laws do not contain authority standards. This policy is a needlessly con- - fusing complication to the licensing process. for the state to control land use in adjacent or upland areas. See p. 1-2 of Addendum. The Massachusetts Environmental Policy Act (MEPA), in G.L. c.30, 561, requires state agencies to use all practicable VII. THE CZM PLAN UNLAWFULLY ATTEMPTS TO EXTEND CZM .......CO)NTROLS ,OUTSIDE THE GEOGRAPHICAL AREAS COVERED * BCO NTROL S OUTSIDE THE GEOGRAPHICAL AREhS COVERED pmeans and measures to minimize damage to the environment. How- BY EXISTING PERMIT STATUTES. .yer, agencies may. refuse to gr.ant permits- on- thebasis of EPA The CZM Plan attempts to establish CZM restrictions on eeragencies mayrefuse to grant permitsontheasis of PA land use not only in certain areas in which permits for activi- only if the environmental interest being protected-is within tie eqied under ,extgstatutes, -ut also in adjacent the scope of the agency's statutory jurisdiction. tie~i'aY-(K'equired ~under ~existiog tau-s=btalso in adjacent In addition, under G.L. c.30-,�562,,the'second-section of or upland areas. For example, Policy 2 prohibits any land MEPA, the Secretary of Environmental Affairs may-,not dictatd or water uses in areas related by natural processes, such as MEPA, the Secretary of Environmental Affairsmaynot dictate littoral currents, which could adversely affect an APR. CZM the manner in which projects are to be completed, but may only comment upon environmental impact reports. The "policy" portions of the CZM Plan are at the present VIII. THE CZM PLAN, CONSIDERED AS A REGULATION, time indistinguishable from the "regulation" provisions. How- IS UNCONSTITUTIONALLY VAGUE. ever, EOEA may legally adopt and enforce only those portions The entire CZM Plan will be incorporated by reference as a regulation of EOEA. Included in this incorporation by ref- of the CZM Plan which meet the legal tests for regulations, and which are also within the statutory jurisdiction of EOEA. erence are "technical statements . . . descriptive material, In order to adopt and enforce those portions of the CZM Plan, analyses of problem areas or conflicts, regional chapters and the Secretary must follow statutory procedures calling for. other textual discussion.' CZM Plan, p. a-33. In addition, notice and a hearing or public comment. See G.L. c.30A, the the proposed EOEA regulation declares that the "State Environ- state Administrative Procedure Act. The "policy" portions of mental Policy" (to be enforced. as part of the CZM Plan) shall include not only certain constitutional and statutory provisions, the CZM Plan, including the technical and descriptive material, but also "Executive Orders or other statements by the Governor Memoranda of Understanding, the statements of the Governoi, and the "Secretarial Orders," may not be used to govern adminis- and statements of environmental policy promulgated by the Sec- trative actions because they may not be adopted as regulations retary of EOEA by "Secretarial Order." CZM Plan; p. a-29. under the Administrative Procedure Act. This law requires If the CZM Plan is to be considered as a regulation, it must comply with the constitutional standards for clarity and that its procedures must be followed to adopt 'the whole or precision applicable to regulations so that due process is af- part of every rule, regulation, standard or other requirement forded to parties to adjudicatory or other proceedings. A of general application and future effect . . . adopted by an agency to implement or enforce the law enforced or administered statement such as "The implementation of alternatives such as solar, wind and solid-waste energy recovery systems would re- by it." G.L. c.30A, 51(5). duce our dependence on the more traditional fossil fuel and nuclear forms of energy" (CZM Plan, p. 229) is not the type IX. THE CZM PLAN WRONGFULLY ESTABLISHES THE PRINCIPLE OF COASTAL DEPENDENCY AS A STANDARD FOR AUTHORIZ- of material which may be used in a regulation. The CZM Plan I N G ACTIVITIES IN THE COASTAL ZONE. The proposed CZM Plan takes the position that development contains a multitude of such provisions with an equal number of unresolved contradictions. will be encouraged only for coastally dependent uses. See Policy 17, governing land use in ports and harbors. Activities -16- which are not coastally dependent will be denied permits if such activities conflict with future potential maritime- dependent uses. DEIS, pp. II-15 and 16. This policy was not approved by the legislature, yet the CZM Plan calls for agencies to use their powers to effectuate this policy. This bias would be imposed on local conservation commissions by state guidelines. CZM Plan, p. 85. X. APPROVAL OF THE CZM PLAN SHOULD BE DELAYED UNTIL THE STATUS OF THE "UNENFORCEABLE" CZM POLICIES IS CLARIFIED. According to the DEIS, only 17 of the 38 "policies" of the CZM Plan are enforceable. The remaining 21 "policies" were found to be unenforceable under federal and state law. APPENDIX E DEIS, p.II-7. This commentary has asserted that many of the policies considered by NOAA to be enforceable are unenforce- able. The legal status of the CZM Plan is so unclear that NOAA and EOEA should delay the currently pending administra- tive proceedings to approve the CAM Plan until these uncer- tainties are resolved in some acceptable manner. The federal government should not compel Massachusetts to accept a CZM Plan if the majority of the "policies" contained therein are not enforceable. Federal approval of the CZM Plan under these circumstances is certain to create chaos in the administration of all state and federal programs affected by the CZM Plan. Mr. Michael Shapiro * EDISON'ELECTRIC INSTITUTE October 28, 1977 9.? g.9o PAA^ AVNUVE - NW YORK loose (als) 372-0700 Page Two ~~~~October 28, 1977 ~submits this letter and its attached Appendix. SEX asks that it be granted the opportunity to orally present its comments to the OCZM. Mr. Michael Shapiro National P rograms Office For all the reasons set forth herein, EET finds that the Office of Coastal Zone Management National Oceanic and Atmospheric proposed regulations fail to properly implement the Act and Administration 4/ U.S. Administration Co mmercethe National Environmental Policy Act (NEPA). Accordingly, U.S. Department of Commerce Page Building 1 EEI asks that they be revised in accordance with our comments. 3300 Whitehaven Street,. N.W. Washington, D. C. 20235 Respectfully submitted, Re: Federal Consistency with Approved Coastal Management Programs, Proposed Policies and Procedures [15 CFR 930; 42 Fed. Reg. 43585, et seq., August 29, 19771 Dear Mr. Shapiro: On August 29, 1977, the Office of Coastal Zone Management (OCZM) proposed, pursuant to authority of the Coastal Zone Management Act of 1972 (CZMA or Act), as amended, the above regulations. The notice provided that comments thereon be sub- mitted in writin /by October 28, 1977. The Edison Electric Institute (EEI), on behalf of its members, hereby respectfully / The instant proposed regulations are a reproposal of earlier proposed regulations (4.1 Fed. Reg. 42877 (1976)). v/ 16 U.S.C. 1451, et seq. EEI commented on those proposed regulations as well as proposed regulations on development grants (41 Fed. Reg. The Edison El.ectric Institute is the principal national 53417 (1976)), administrative grants (41Fed. Reg. 57003 association of investor-owned electric utility companies (1976)) and the coastal energy impact program (42 Fed. in the United States. Its member companies serve about Reg. 1163 (1977)). EEI asks that those comments, to 99 percent of all customers of the investor-owned segment the extent they are not inconsistent with those herein, of the electric industry and 77 percent of the nation's -be incorporated as a part of these comments. EEI is electricity users. -also submitting this date comments on proposed 'Coastal Zone Management Program Approval Regulations" (42 Fed. Reg. 53441 (1977))-. 42 U.S.C. 54321, et se. APPENDIX -2- Subpart D - Consistency for Activities Requiring a Federal a "new activity in the coastal zone, directly, significantly License or Permit and adversely affecting the coastal waters (emphasis added)." Unfortunately, we find that certain of the comments filed In its discussion of the legislative intent of the Act's federal by EEI on the federal consistency regulations proposed on consistency certification, the Senate Report further states: September 28, 1976 [42 Fed. Reg. 42877 (1977)] remain applicable ". � �[A]fter final approval by the Secretary of a State's management to these proposed regulations. In particular, the proposed -program, any applicant for a Federal license or permit to conduct any new regulations continue to fail to limit the consistency certifica- activity in the coastal zone shall provide in the license or permit tion requirements, as directed by the Congress, to "new" application a certification that the proposed activities comply with the activities "directly, significantly and adversely" affecting State's approved management program. Additionally, the applicant must give "land or water uses in the coastal zone." reasonable assurance that the activity will be conducted in a The Act, as set forth below, expressly limits the appli- manner consistent with that-program. Thus, [Section 307(c)(3) (A) assures cability of consistency review to the application for a Federal that before a federal license or permit is issued to conduct any new license or permit to conduct an activity affecting land or activity in the coastal zone, directly, significantly and adversely affecting water uses in the coastal zone. the coastal waters, it will be reviewed by an'appropriate State "After final approval by the Secretary agency and a certification of of a state's management program, any is placed upon 'new' activity This applicant for a required Federal activity is after the date of enact- license or permit to conduct an ment of the legislation. It will activity affecting land or water thus be appropriate to distinguish uses in the coastal zone of that state between new activities, such as the shall provide in the application to building of a new marina, or the the licensing or permitting agency a dredging of a new channel, as opposed certification that the proposed to the maintenance of existing activity complies with the state's facilities or activities begun prior approved program and that-such activity to the enactment of the bill. will be conducted in a manner consistent ( emphasis supplied). lf with the program (emphasis supplied)." 1J The Act's legislative history clearly establishes that Consistency certification was not intended to be required of consistency certification was only intended to be required of existing facilities or the issuance of an operating license to a / Act, 5307(c) (3) (A)-. g/ S.Rep. No. 753, 92nd Cong., 2nd Sess., reprinted in Act, [1972] U.S. Code Cong. and Admin. News 4776 4793. -4- 'facility already constructed. Likewise,'amendment or renewal of an existing license or permit does not trigger the certification affecting land or water uses in coastal zone. It was not requirement unless the intended modification or expansion so intended to be required for the issuance of licenses to operate significantly changes the character or magnitude of the facilities already constructed nor for the renewal of licenses activity as to make it a new activity. Rather, Congress granted to existing facilities. expressly. limited the applicability of consistency certifica- EEI is concerned that the States are already tion to the application for a Federal license or permit to attempting to apply consistency review to the issuance conduct a new activity directly affecting land or water uses of operating licenses by the Nuclear Regu4atory Commission. in the coastal zone. in the coastal zone. The nationwide effects of this requirement, should The proposed regulations, however, improperly define the it pervade every state CZM program, is devastating. Presently, term 'applicant" as one "who has applied for but has not yet in coastal states nationwide, some 64 nuclear generating received a Federal license or permit to conduct an activity facilities await the issuance of operating licenses while 54 affecting the coastal zone." Additionally, the proposed regulations others with docketed applications await the issuance of con- improperly define the term 'affecting the coastal zone' to improperly define the term-affecting the coastal zone to struction permits. Notwithstanding the patent adverse effect include '"changes in the quality of coastal zone resources' and the delaying of the construction or operation of these to indicate that States "have the option of using a more expansive facilities through .unauthorized consistency review will have definition of 'significant effect.'" (5930.53) 'Both of these on our nation's energy supply, neither the proposed regula- definitions violate the spirit and the letter of the Act. tions nor the state CZM plans even address this significant Moreover, the Department of Commerce is without authority to impact on the quality of the human environment. Likewise, the expand or authorize the6 States to expand the definition of Negative Determination of environmental impact prepared by OCZM "affecting the coastal zone" beyond that authorized by the Act. regarding these regulations also fai.s to address this matter. As such, the proposed regulations require consistency certifi- EEI finds the failure to prepare an environmental impact state- cation for a much broader group of activities than those for ment which identifies and analyzes this adverse impact to be a which certification is authorized by the Act. Most importantly, consistency certification was intended to be applicable only 4 / The Proposed State CZM Plans in California, Massachusetts, to the initial authorization for the conduct of an activity Oregon and Wisconsin proport to require consistency review of the issuance by the NRC of operating licenses to nuclear generating stations. 211 -5- viol4tion of NEPA. EEI asks that OCZM identify and analyze this significant adverse impact on the quality of the human environment. The proposed regulations require each State to "develop a list of Federal license and permit activities affecting the coastal zone which the State wishes to review for consistency with the management program." (5930.54) The list is to be included "as a part of the management program" and no federal license or permit on the list can be issued without consistency certification. The proposed regulations also indicate that States may make "refinements" to the list; however, they fail to require amendment of the program and approval by the Secretary of Commerce of such refinements. APPENDIX F * ~ ~ ~ j ~U~dr1O BTATES bEPAVF7Mw-JkT OF CMSC 111art-immil Ocauhw Amnic 2--Vd Honorable Georgia Rogers.. Chh trman JoIn t Coqmgint tee on~taua eore Boston, Massachusetts 02133 .Dear. Senator 4Cr- *-ia Pleased.ta.havii.bee`n Inf ed oft4 ~ .llOT~SI h ;auspices of thae.-Jal-n..Ccantt", on Satural. Resources as arn additional foruiu for citizen ccemftnt of the plan aird proposal ~fog amending it. Please be advised that'arveadments. to the present dra ft plan may be submitted liy the' State UntilI December 151977, and changes ray he rmide on the draft 21A requ- laticns cotained In Appendix A to the plan until JanaarY .15,.. 1978,i W.ithout jeopardizing the omeent time-tab-le for approval and full Federal funding ne 0 fC~A Any ameandmieats to the regulatioo; will be ray;-,-Wed to assure 'that the appioval requirean-nts of the CZ?~A of 1972 are met.. Thankc you again for your Interest In this matter, for Coastal Zone Mianagement Transmitted by telecopier and hand delivered October 27, 1977. NEW ENGLAND REGIONAL COMMISSION NEW ENGLAND REGIONAL ACOMMISSION 53 STATE STREET 33 STATE STREET BOSTON., MASSACHUSETTS 02109 BOSrOW.MASSACHUSETTS 02-109 RLECEIVED ~ MEMORnDUM ovember 2, 1977 November 4, 1977 NOV 1 4 1977 VO . Robert Keating Energy Program Director '~~'*~~ ~~jE ~~' FR(JM: Arnold Wallenstein "1r. Eric VanLoon. Director L M - 'coastal Zone Management SUBJECT: Commvents on Massachusetts Coastal Zone Management Plan i-'ridqle Street * ~ssachusetts. 02022 r: ~~~~~~~~~~~~~~~~~~~~These conmients on the Massachusetts Coastal Zone Managem nt Program *.. please find coimments upon the Energy Section of Chapter III will focus on the Energy Section of Chapter 111, and the Management mt:3gement Section in Chapter IV of the Massachusetts Coastal Zone "1OeftPlan prepared by Arnold Wallenstein. Proposals contained in Chapter IV. However, the other c apters were :;'., Commnission's Energy Progran stands -ready to work with you as reviewed and were found to be well done, and we, conseq ently. offer )- implIement this plan. particularly concerning interstate/regional 4ssues that we feel the Plan does not adequately address. no detailed comments on them. Overall the CZM plan appears to be a competent Cordially, first effort in developing a workable management system for the heavily / ~~~~~~utilized and fragile resources of the coastal zone. The &smients offered may be used to refine the present version of the Plan or incorporated W. Robert Keating Energy Program Director into subsequent amendments to the Plan. *Evelyn Murphy It should also be noted that this version of the CZM Plan cures many, but !!.nry Lee 1. Joseph Grandmaison not all. of the coesnents and objections raised by my mem of February 15, 19 7 .,itrles McCollam, Jr. reviewirg, the Massachusetts Coastal Zone Management Previ w. The observ-ations contained within this memo are to provid constructive. reconmmendations for improving the C'oastal Zone Management Plan, but d6.not necessarily represent the official policy of the New Engi nd Regional Co .ns in COP24ENTS ON MASSACHUSETTS COASTAL ZONE MANAGE4ENT PLAN requires that coastal zone management offices coordinate their CZM plans on a 1. The first observation is that the Plan has a rather negative outlook interstate basisand provide for a process of regional coordination and towards encouraging econanomic growth within the Massachusetts coastal consultation with its neighboring states. The New England Regional zone. The Plan is oriented towards discouraging developments that use Commission's Energy Program may be able to assist the Coastal Zone coastal land in order to protect the coastal environment, instead of I Management Office in considering issues of an interstate nature that concentrating on giving positive incentives towards encouraging properly affect the Massachusetts Coastal Zone as the Plan is further developed .9 ~~~~~~~~~~~~~~~~affect the Massachusetts Coastal Zone as the Plan is further developed managed and controlled economic development, which is greatly needed by and mplemented. Discussions to this effect should comence soon. and implemented. Discussions to this effect should commence soon. this State, and is an acknowledged goal of the State's Administration. 3. The Plan may overestimate the amount of authority that the Massachusetts Consequently, it is recommended that the Coastal Zone-Management Plan Consequently it is recomended that the Coastal Zone Management Plan Office of Coastal Zone Management has to induce other agencies of the provide for more incentives and a more positive outlook towards inducing State comply with a aspects of the Coastal Zone Management Plan. It State to comply with all aspects of the Coastal Zone Management Plan. It econrcmc development into the coastal zone, to the greater overall benefit is explicitly stated on p.319 of the Plan that primary interagency imple- fter tstate and its citizens, while protecting and preserving the fragile te state and its citizens, while protecting and preserving the fragile mentation and coordination mechanism, i.e. memoranda of understanding, are and srce resources of the coastal environment. thought to be "generally unenforceable" because the Attorney -eneral has never brought suit by one agency against another. 2. The Coastal Zone Management Plan makes no attempt to coordinate its plans and policies with the coastal zone management plans and policies of If these interagency memoranda of understanding are not enforceable, other states in the Region.* The Plan evinces no realization that many then t should be considered whether the mandates of 16 USC 1455 (e) (- .-?,1 then it should be considered whether the mandates of 16 USC 1455 (e) (1-2 of the problems of the Massachusetts Coastal Zone are interrelated with thc would be met. That section requires state guidelines; direct regulation or of the contiguous coastal Zones of neighboring states, and that many of the contiguous coastal zones of neighboring states, and that many administrative review for consistency with the CZM program of all coastal aspects of coastal zone management cafi be mbre effectively accomplished development plans and projects proposed by any state or l ocal authority, by regional coordination with the coastal zone management offices of and requires the State to retain some type of review or approval other states. It is recommended that the Plan state which coastal zone to ensure that the State's CZM plan is complied with. If the State EOEA or management issues are interstate in nature, and by what process Massachusett: OCZM can notirequire such consistency with the State CZM plan by other Office of Coastal Zone Managemenf intends to join with its neighboring tate agencies not within EOEAor by municipalitiesbecause of extensive state agencies not within EOEA,'or by municipalities because of extensive st t-s in d: i n : al problems. It should be noted o n ? a/ poes. tshudbntd reliance on unenforceable memoranda of understanding, then section that the Feds'a1 Coastal Zone Management Act, 16 USC 145406) 1455o 2A and' that the Fedal Coastal Zone anagement Act 16 USC 14546) 1455c 2A and 1455(e)(1-2)fof the Federal Coastal Zone Management Act may not be complied The discussic: on Pa 35 is inadecquate for this purpose. with by the Massachusetts CZM plan. with by the Massachusetts CZM plan. -3- -4- It is of course hoped that other state agencies will voluntarily S. The Plan indicates on p.268 and 336 in Volume I, and on p.160 in comply with the management process established within the Massachusetts Volume i. that five Ocean Sanctuaries have been created by State Plan, but the realities and inflexibilities of bureaucratic organizations legislation to protect all State waters, except those from Swampscott which respond to different goals, constituencies and political pressures to Marshfield (the broad entrance to Boston Harbor), and in Mt. Hope make it unlikely that complete success and cooperation will be obtained Bay (along Mass.-R.l.boundary). Incorporation of these Ocean Sanctuaries by the OCZX with other state agencies on the essentially voluntary basis into the State Coastal Zone Management Plan means that no OCS oil or set forth in the plan. Consequently, we would suggest that the Massachuset: gas pipeline could pass through State waters and landfall anywhere on Oc2t consider strengthening its management process to ensure that the the State's coast, except through Boston Harbor or Mt. Hope Bay. Massachusetts Plan is followed by other state agencies,, and to avert delayir. Due to the location of likely OCS lease tracts on Georges Bank (southeast legal challenges, by seeking state enabling legislation to give the Massa- of Cape Cod), this could eliminate the possibility of any straight-line chbmsetts OCZM more definite legal and regulatory authority to OCS pipeline from Georges Bank to the closest landfall on Cape Cod, effmeftivelt imple~ment the Plan. thereby making underwater pipeline transportation of oil and gas uneconomica (c.f. p.252.) This would force the use of tankers for the transportation of oil, which the Plan itself states would have greater environmental conse- quences (p.252). In addition, prohibiton of a natural gas pipeline would 4. The Plan does not present any detailed or site specific recommendations completely rule out transportation of natural gas to Massachusetts from to increase the energy supply of the state or the region either on a regular Georges Bank. as the Plan notes (p.252) that offshore liquefaction of gas or project basis. Perhaps some specific recommendations could be developed and tanker-transportation would be too costly. later as the Plan is implemented, but the state level Plan itself should set up a process to attract to the region sufficient energy supply faciliti. Consequently, the inflexible incorporation of the State's Ocean Sanctuaries to ensure the continued economic capability of the state and the region. into the Massachusetts CZM Plan could severely handicap OCS development Selection of preferred sites for coastal power plants and other energy in Georges Bank, or alternatively, could force the offshore developers to facilities would channel this type of development to where it is desired use environmentally more dangerous tankers to transport oil to either the in the first instance, and a preselected site could reduce much criticized New England cast, or directly to the New Jersey refineries. It would state regulatory delay. make natural gas transportation much more costly, and the increased costs wcild b- pasJL tli.;, :t l ihighelr rates to nLtilral gas cL;e.:;:'s. We therefore recommend that this section of the Plan be reconsidered and amended. December 9, 1977 By restricting all salt marshes, Brownell's method was one-sided, unfair and unreasonable. By preventing the possible dredging orf all salt marshes, it denies that there may be one or two individual ones which would be more useful to humanity if permitted to be Eric Van Loon U�0.,: GI,lb't- S'Toe. used for purposes beneficial to people instead of being C.Z.N. (i N.^I reserved in the interests of wildlife. Lovers of nature 100 Cambridge Street can be given all they want without taking away every- Boston, Massachusetts (,A~1te , ; S. h ;s thing from promoters of projects beneficial to people. Datr S3ir - f '9 C(q X6 07 u j nPlease do not fail to note that the dredging and filling Dear Sir: of almost all salt marshes should be prohibited and pre- vented, but that there should be some flexibility so thy should the Federal Government refuse to approve that the practice will be regulated instead of 100% pro- the Coastal Zone Management Program in its' present hibited. form? As the writer sees it, the Program as sub- mitted by Governor Dukakis is not based on a special If Mr. Brownell had chosen to use the zoning by-law Act of the legislature. The area of State Government method for regulating he would not have violated home which the Program covers will be so extensive that rule. it will deserve special legislation to set up a commission to be composed of commissioners to be Brownell induced the legislature to enact legislation elected by popular vote who will have specified powers which was so bold and presumptuous that apparently the and duties possibly somewhat similar to county commis- legislatureswas unable to cope with it and it became a sioners and metropolitan district commissioners. law which is still in effect. That law, The Wetlands Restrictive Act, G.L. Chan.130 - Sec. 105 is positively The Program submitted 'is similar to a nice looking unconstitutional because it violates home rule. It is apple that is rotten at the core. It begins with salt not known who has succeeded Brownell as Commissioner, marshes. Arthur W. Brownell, Jr., former Massachusetts but whatever department has inherited his principle Commissioner of Natural Resources, undertook to prevent should now repudiate it by declaring the Act illegal. the dredging and filling of all salt marshes in Massa- The Governor's recommendation to other states to copy chusetts, without exception and without discrimination that law should be retracted. and without permission of the Town. No exception is taken to his intention to protect the interests of Please take a look at the law, G.L. Chap. 130 - See. 105. wildlife and marine life but the complaint is made that It says the Commissioner may adopt orders providing for he went too far. The program put over by Brownell restrictions to be attached to deeds. That is mislead- violates the principle of home rule for towns which is Ing because at the end of the Act it lists certain included in the Constitution of the Commonwealth. That limitations go that the Act should properly have said is the fundamental fault of the Coastal Zone Management "may within limitations adopt" etc. Program. It violates home rule which is a local concern. The Act of Congress dated '1972 mentions that something The Act should also have included the words "the about local ordinances must be respected. Commissioner may adopt orders with the purpose of pre- venting the possible dredging and filling of salt marshes, The initial mistake was made by Commissioner Brownell in without the approval of towns or auproval by the select- his selection of the method to be employed for regulating men". That was clearly the intention and it violat&s the dredgine and filling of salt marshes. He chose a home rule which is enough to cause the law to be renounced. method by which restrictions are attached to deeds of land. Those restrictions prohibit but they fail to regulate. They do not recognize that there is a battle royal going on between.wildlife and human life. It is a conflict that cannot be reconciled but can be compromised. However, the law runs aground in another way. It fails Judicial type of decision. It was a high-handed method. to recognize that the dredging and filling of salt In a letter dated May 10, 1972, Mr. Thomas Atkins, marshes is a matter of land use because It determines Secretary of Communities and Development, explained it marshes is a matter of land use because it determines whether a marsh should be reserved for wildlife or is by saying "The Coastal etlads ct was enacted because to permit a project beneficial to human life. Land uses the stte nd other I ntere sted persons were are controlled by the Town's zoning by-law as described not ble to cope wth the prgoverets on the Coastal by the Subdivision Control Law. In the case of Cohasset Wetlands and indiscriminate development was causing many the legislature authorized thw Town to divide it's entire problems". In other words, home rule was violatedu A area into districts for various uses such as residences, new C.Z.M. act of the legislature is need because the busineses, e tc. The entire area of the Town is con- program proposed includes the illegal Brownell doctrine trolled by town votes at town meetings. There is no which tramples on home rule. There is also another prin- vacant area on the map for a district of salt marshes. ciple involved which should be eliminated. Mr. John Daniel representing Commissioner Brownell pre- pared two sketches which would naturally be incorporated In the Fisheries Laws, Chapters 130 and 131 there is * on the zoning map if there were space, but there is no principle employed similar to handbag snatching. That space. Therefore, an act of the legislature is necessary principle is to grab at something belonging to someone to divide the town into two parts: one part to be controlled else and then telling the owner he can get it back by by the town and the other part to be controlled by C.Z.M. appealing to a Court. That principle can be observed In that way, home rule will be observed and the State will by reading Brownell's order dated Fe bruery 12, 1974 and got the control that it wants. there are other examples scattered through the laws. That is the legal provision that is needed and which surely It has been recommended to the C.Z.M. thata chapter is not included in the six laws cited as being sufficient, be included on the subject of salt marshes. The sal The new law as contemplated will go on to say that C.Z.M. marshes of Cohasset should be included as a special may instruct the town to amend it's zoning by-law in any marshes on the ton's oning map. The ch a s a special dont- way desired by the State in respect to uses permitted for plated on the town'sa vry complete discussion and will make 3alt marshes. Ordinarily the town will comply, If It plated will be a very complete discussion and will make salt marshes. Ordinarily the town will comply. If mplt clear the connection they have with the commercial fish refuses then the legislature will decide. By that simple like cod and haddock at George's Bank. As now understood process, each Individual salt marsh can be studied and like cod and haddock at George's Bank. As now understood process, each individual salt marsh can be studied and pros ane cons weighed to make fair decisions. The "battle there are two food chains. Much more could be said about royal" between wildlife and human life was discussed In plankton. The complete chapter on salt marshes will pro- an a-tice dat e d J uly 12, 1976 In the U.S. News and World vide criteria for making decisions on how best to use salt Repoan art, le datitled uly 12, 1976 inhe U.S. ews tland World marshes, whether an individual marsh should be reserved Report, enttld "aving U. S. Wetlands - A Battl e Rallfor wildlife or whether it's to be used for a project, The new law proposed for Massachusetts will provide a method beneficial to people. for compromising which will be better than controversy. Brownell's method of attaching restrictions to deeds was Another chapter is suggested about State Parks in coastal wrong because it was an irregular procedure. It was like towns. On the Cohasset zoning map the area to be reserved holding a cat by the tail. By that procedure the cat is will include Wompatuck State Park. A large area of ipa ally controlled but partially not controlled. The Cohasset was acquired by the State for the Park. The State n ig iy-law method as oproposed forthe new law will be owns the fee to the land but its use by the State was not a regular approved way of compromising instead of an irreg- voted by the Town, although the area remains within the ular, partial method. Town's boundaries, By obtaining the enactment of G.L.Chap. 130-Sec. 105, Brownell took the matter of dredging and filling of salt marshes into his own hands instead of providing for a X9L1 SliM O co' s e st e t a r owrned by the State a d p s, b some tfown 'traet" Ore Maintained by th~ Stat0 Osby known 12 State fi''j.a ean o* I t i3 und erstood that the P ~ ~ ~C e { ( ~ J 7 % t - th~? C Z ht to's tothe Stte rroj~cts whCt (A C~~~~~~~mpl ~ ~ ~ ~ ~ ato yi "4th I. onUb si aw fentjn~d wjl Abe leisaio hn'eysa not flamed or qtuoted- om new ml~ ~'uqvery truly, W- 0 6-0.fVAn~r AurA cc, *(~ "A -Q Wt C41.\11 , ~\ CAA (iX I~~~~~~~I $01 c%\ ToA4 ) IN~~(r -i pk / 1 IQI C a2tJ vboak 317r.Y I NI &t uA~~~J 'I� Ac -1 I'> c-. Tko -n- I (IMA ( ? V I ! 1 '~~~~~~ \ )~~~ ) L~~~ C r 'IAx A~ '.I.LI k r ? ( f k r ! , . Ct~ ~ A. R V ~ l I~ fa l k a li .' QtQ - Yh~~~~~i ~~{~TA. LO(~~~~A i ~ ~ .J -~~~~~~~~~A !tr v 1 HOUSE . ......NO. 3.596 liv Mr. Desinell ol \lillhurk. petitiott ol Richard J. Dwinell for ANEFSADFIHRS 10�10515MRNEIHADFSEIS legislation to further deline certain coitorlation restrictions. Natural MAgN order ANptd FISHnerIE shal apl 1to MARnE FISH ANDde FISEREScnrla iemt Resource, and Agriculture. II 105. Protection of coastal wetlands Noiorndisric doptedItereonde N.ol aplyl udlto n4a hconader the1 perntt ofthe cete- sTh elromateanlse lofrinaeeoo-ltl. aly mntogenfeit, with tile approval httie bal'truetlon In eoootal eretlansateo aceens drierwy$ to iireltt'ieted loand ecept In a et oMr-uenal umigemst,1 yfrm. tint,' to time, for tile perpon of peo lnealg manner whIch allows the flow of the tIdle. Irbecommnbirlti;of lfalaeacljusetio ithe public ."rety. Ientill ania wefare, neil protecting pulichl and prir-te propety. Amended by Stitrtif. e. 351: StItITt, t. VWt I 2201. ~~~br Contntantura~~~~~~~~~~~~~~wldli lhfe I Marinerta flsotorien. rotopt. amead, Imdilfy or repent ordera regulating. le-udu~. S.97,c 5.P il.I..t1nal trr ~re'ira Co Etrus,,dNire tindrd ri Sevot~eve. arletiteor r~rhl~tt~mtlrettdglultt ,ruldblitoritlgewlo alerin, a poiot.tonAgen am-n. Stgl ore. ih. o- the epaintaf o eolmnootI q ttt fil ilic Ye,,. ~~~~~~~ ~ ~ ~ ~ ~ ~ ~Oeefl,ndNn ldeddSvniSvn.ng coantal Intltoo W. thtnctlon thle term *`oriotrl wetlands" ustill ine 'l Provd Jane it. t91l, added Itto .econ no- Insitn...a inr the Lb.co-d nod Mnecth -. le~~~~~~~~~~ave Marsh thepmad- tact paaah tlgraphe. And ubettoeiintonr costl c,. b aersmgh ~ vgah.a - In...td 'Or anvirn. hookmarsh vevonti. a'oda-, tit or ther oy trad ooivet o t~dl oeton fitcorrtal Otill.g, 1I. I 00. anemergngynat, me, al mcanonnet' herevr arpaci- AN ACT It ETHER DEFININC C(ISFRVATIO ~ ~ ~ ~ ~ iorir flooogie find ocreti roitigirittia tait 00 thuncrabodroctor of environmental approved NOo. 25..t9ti. tan by seneto all throoghout the motion. A~~~~~~~~~~~~~~~N ACT lRTIRDht NGCiiss-st\lt FltrItNS. aoiirfg;let vonisiiuiitly iti-m nioeeoofiey to ffect fly anay aiteli Order In erirrytng moda eteetlc- noef Jair 2. 1l76 1t..leted oult tieplorlmo o9fithia heettirn. Tl ~~~~~ The coinedmtaoer fit 01,itvironttrrta macagrtienont nitoll be~fore, adapting, avaeiirling. Br' it enavii'd III tre Sentate ande Iflllftis ,/ ReprtlenturitliC5ii mrinitfs-ne rrjvig ayoeorde,'rdophl eatgterei h .u UIEAPMR 131. INLAND FISHERIES Ab~D CAME AND Ge'neral Court asseyltiber. and bY thle aufitorifYi of file Sallie, a.5 nilettiotty In whiche tile rortatoial otieid. tie be affectedt aer lociateid, giving notlly OTHER NATURAL RESOURCES /so,iiriS: thereof to the ntnh, reclaiall"tui levied. tIlt. dlt'irtrttont at pubile works anil the de- pirtloent nft environmtental quatlity engineeringo unei eahne amotced onviler of ntfeh �1. Definitions; rules of construction Section 1 of chnter 18 of theGeneral ane. 20most reently aettands by men~ at tenot tweiityaon driys lirine tila,2t In thin chaptoer, unles the coitlevt other1celeetquIlnKi the foliocelng eord$ I~~~~~_____ Seton 3 fcair 4fhe eialLsa oreej, U - tilie adoptiotn at ony oneoir oriter or Btiy order amndindig. modifying or r-shall have the foliocling meannoge ntil the foltoceteg rbes Of Conatractlin Ilial 2 amended by section II at chater 1155 of the acts of 1973 ~ periling tule neme. thi. ertrisioul-Wer at environmerntal managr-no renta010 cause a apply,- 2amended b section 1 01 Chaper 1155 Ofthe a c t s I 1973 Iscopy tirereof. together wilth a l~ait nf thle inndv Uffectei and a list of thle asrheoted a 1"nlffl V 3 hereby further amended by striking out the first sentence and 00-ner i~f elf, eb loo. to be recordedieiIn fii,'l ri registry of decilo li, If Buell [See neain votnie Ior feet of defitatton Rinnilf Oeed sealsaa?"I 4inetn in place thereof the tollowing: anest em, registeredl. In tile reglotry disitrict of the land maret, anod ot1ril molt a ",Coontal watersn,, all waters of lbic comnoontreolth withit the rise and fall of the i onevtionrstritio ansRfgh etrorntsad colly of #ointe order Iitd pine to eneti aros~oe owner of Buell land. ffectil ttrrre- tide and the manrine limit. nf the Juristdiction Of the eonm- eweulth, hilt not Witers A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~~~~~~~~~~~~~~~Iy conervtio rearico means W IN rihMs~te rntsae y ahoJsoselatt ijh1ef la tg INollo of chatntr law iiipndie4l~.t4 e within or ehonr any fleh.aly or dam ner waters aovee a") tidnl baiount eotahilhed 6 in the form Of a restrict ion, easement, Covenant Or condition, in p ail rigbty-filuc Any loerotiu Illsi viotrten oily corit order safe1 he quinlahel liy a by the department of environmnetale qinolIty engineering In foatingm flawing Into fine of not loss than ltnt nor, tore tItan fifty doll,,rs. or fly lintprlaonntent foe not the "es, - 7aony deed, will Of Other instrument execttted by or on behalf of the more thana tine Month,-or ty, hotit oriel, fine, and Impriomn.,omsinrte omisonmerofihiewlieBadrcet.lrd 8aowner of the land or in any order of taking, appropriate to The suprerior corurt tidiall htinc ittetodltlon In eqrtlty to restrait 1iniritiotia of n,,eh blolemlaer. [see cmainlealane fr tetof dfieere.wldit n rerofln "Diut"' 9retaitting ,land or water areas predominantly in their natural. A n y ero. u.hvn laceb- matets Iottid afoefeedtb ofy sufcht toor of". vhcolce s 10 scenic or open condition or in agricultural farming or forest use, wIthin atnety Uirys aftrr recerivng notlco threoif, lat-titin thre aipeeior, coua t S e manv ldfrtet tfdl~mof 1II to perm-it pbiarcetional use, or to forbid or limit any or all determine whtether miei anri'r mi vrdettee thle Itoen! Ilia pirvieltY an to deprtc aepnorotii e et fietl o o ,Optt" 12 (a bcniruto orplcigobulns.rccd 1 ilbadso iit of tihe Proctical floe. thereof Batd in th,'efor to utoeeaaonahble eoercive of the . i'rycjtor" file director of fnlfierliroanod wildlife. 123a othe utin r p aigobutilditneso te sructures sins ioard aoreth police poiver becatrse tire order contmatlte,te the equioernint of e inking withlout rosa- I'Dlvlnlo", the dlvliein oft flnherles and wildlife. 1 ohradvertising, tlteso te strctue'n oroboth nulon, It the court finds thle findr to he ano funrennonohe exerelwe of the polle lace main voluiieme feetog of definitieons of "r-IIrO~ f, I "alnd unleea"I 1 4 ground, Ib) dumping-or placing of soil or other substance or powoer. a. aforeoold, the citirt s1,0ll color ii fiading thaot scf~h order shalli not apmply *'ttdoadei Aiotguni or rlflo",. Bay ahotfito or rifle having a bhell or enrtridge In IS material as landfill, ordumping or placing of trash, waste or e ther ihe landdes or chamb ititer: tlrrltcllell hove.hri, nifIndigou o fetete the onignin or muzli er tref, r ntecwu.intne oding ehetgttn 1 6 unsightly, Or offensive materials, (c) removal or destruction of, saottrelren alIlI 011w tha eofi tilf jxInt lodi IT.he recndltorde of oetlert inthe or rifle, conteInleg powder In the flnch pen, II percussion cmep nnd hoht or ball. Iwirigelreioey oril ciia ,e, it trall i trtti fle in neoeri, In true reglatytltlt foftrethwema etiefofeth o/ tellliahe"fmo0nin~edodn ? 7trees. shrulbs or other segetation. (dl excavation, dredging or, lotni renlisrt. orThe , metho p iutelad iir obttuol eroph for thle ,legctiltrynilo at o Itle t[-Rad Mfal.n toi'" fata voeat-ap c111" 1 jiu-toa IS removal of loam. peat, gravel, Soil, rock or other mineral arm' af whlether ony mieiorltird..... f-liltllt'o. It thitlg cl~thot compeecotlon ehall be Amneided by t.a911, c 102; fit-I9Thc. TOr 1 221. 19 substance in such manner as to affect the surface, (e) surface use eacttvie,-e. hnd Belfli Iinrti'l shrall II, im dtlerinedlil In any~otlbc proetvedingr, no, shall tPS Acesmnedrec. Stnm c. 1II. 00- "Puhilie -ac," III the deflinttee Or "Caal saly heron havie . rfight to lmtltlunl for the anocoameat iii dmnnlao tinider chepter prov-d Aprlt I0. land. Invecrted 'I-i thn tinek Al -enatcee nobstltteto "Iffeheelce cnifit 20 except for agricultural, farming, forest or outdoor recreational soleety-nloe ity resunitlts tin. t iotoitla Of oily aWIh Order. LIn. a-ub eco elonceo 1. lit. detalhie of and reecnlonn.I chva"For.,trt n 2 1purposes or purposes permitting the land or Water ares to remain The deuitrtmect ,,f ellriruenirnl itrlaotlufoent maty. after a tfinding has ieen eti. "Lonte~d nholannerl". nore, in-- thelb deinlmtlooe ot ".Concal.- 22 predominantly in its natural condition, (lf) activities detrimental tvroll thlrt sucht ordlr ol,,ll lrt eapply to cortai ole as11 05ProvIded in tire oreceding aiiet.1 e. too. I09 1 2i. an emege...e net. elocer' and -,f~zsLL.nt"-; .,ntrtlined llrlrigrllfll, rthllia, ue. fr ro honeititetot i oltei Ilid Inthe nme atthe cin.-aproN- 0 2e . 19.1570.aId hIllvion 21 'toldnlt" roe"lime in Iho dtlnfniao o 23 to drainage. flood control. Water conservatilln. erosion control or paragweoll tak th -rvly Ifvt . Betlll-~ llracdt tIntr the irolnn tchper went-te thed Iloti .01"~otivo B. Jate i. tein. aah11titt. "Ileornd'iten. 24 Soil conSers-alion, or (g) other a cts or uses detrimental to such tile noitte for tthe prcrlrooo vet tfarth In i1110 so'tfioil. 25 retention of land Or water areas. Nrl st-tioll ly the commissrtioner of enu-ironoenrtal mnainlgemenet or the tlepartrtmet �1 4. Powers of director at eloleirnlentol Otn ntgelltrit ctrider Itill. weotio Blrinn prohibit. reotriet or illpllir The directdor moy: tile i'ster[.- or pertorioatu ,if thle powero alfd dutltc conferred or Imposed ity iric f ace nuOli volume for fell of (1) to (9 I1 ottI thle delortmenst of jfudhle, wrsinh, tihe deiparltment of invlroententol caityn (0at ayti m e I n n a d wt hmtheIB ffs rmay en-s 111hDfomn I-t, nee 11- Pfed 0. 1007. Snoenled p.Oc. gloecrling..i lire olle mri-eatttrtthraioid or tiny ntooqttito control vor ther projeet Op i s 0 apaet salvagie fish for Inadwaterbuin, wher wthe lone apphrova nay "canto crating stioter or authorized by celdsitor two Intuinuted and fifty-i lo.Inaprt. otgefofrdlrbtiotlwhtholrvll ohI- KIII44-~ 49 5 edward (9. 4anchez,, Jr. C.1 E. ~.~MARINE SERVICES, SALES, REPAIRS, DESIGN Tt was at a public meeting the CZ!I plan wsis first introduced to me. 2 5EF.CaWOOODR 131- M ISLAND Listening to thg. presentation by the people of the Southeast Ilegional SO. DATMOUTH. MJASS. 0274% NE~w XEDIFORD. MASS. 09740 111L. 617-997-9503 12~~~~~TL. fil.9944015 Planning and Economic Development District, I found it told toe nothing CCe-'ccp that there was the cz,1 A of 72 and that it wasn going to be imaleente. 2uestions as to the direction and the intentiosoth velet 5, 1)77 plan coutld not be ansnwered a!: the inforrat~inn was not avail-able. Thl, only certain itcn was that an ares of' the coastline was to be appro- '!as. office of Coastal Zone 11anagetnent *! :rie VanL,)ons tILrnnr pria7tcd to be governed by the CZ:T and the Taskz orconaatlfeurc fl::erutivn Office of Enviornniciettal Affairs 100 cribrifdge 9t. was, to be appointed by the tovernor. These meetings were not proldactivc 3oston, '1A 02202 ~~~~~~~~~~~since the public was not well infornod as to tile direction of the CZ%. .)ear 'Ir. 1!antoon, o u h p o o o ol edsusdnripratise asdfle Thi~is a letter to introduce inYs-IF and. to inform you as to my feelino:s 1o uhpoo o ol edsusdnripratise asdw involving 'ile CWIA-72 I am a memer Of the'there was little Information available. Attendence at these meetings was insignif*icant. The public was not aware of the powerful position Buzzards rlay Advisory croup-CZll C~liarmanof th NowDedfrd-Favilaen Hrbor ommisionassumed by a politically appointed group in the regulations )f privately vieChairmean Iof the Nlew BledfordFihae HarborDelom n Commi ssion uecosapretin Vie hira offsheNwedore aroil Development Cmis~ A .huer of the Mjayor's task, force on Ofhr i eeonn At a later datea T was skdif I wo)uld participate on an advisory boarr! A a .e f the -~ar!)qr ,astr ~lanning Cimte -which wul help to dev--lop a Cc'f program based tipon local inpilt. . mriwrn~r of the nvii -entfor:I Chanheor of Commerce; :,oard of Diractorn reporter Cl~~b o f t h e United accr.,pted w iey.Tht-s i~oull not only give me a chance to cenrtri'j-'" nerber of Tiel oclr lbo e UntdStates,13oard of Covernor": lo*oideal i oifr h o~iS{n fwihIe :. o'i can s"e, T ha-zc tn!:on a Direct interest in the devoloorannt or -Jet-. her' as. to thle -,roZgress of the CZ". development of our coastal areas. This interest has ta!wcn me to tpany p~rts ofthe *jord. I h~vo eisve vlpen, omay For -s; son -11e F'jrst itrin w;as to establish an area t-i~t would, be governed by thle very well planned and others with a total lack of concern. Of partic- CZ�N irregardless as ito how it was to be governed and by whom. It was ular interest to me for the last two years, has been the pending in- suggested that one oe several alternatives be considered. After much plementatiop1 of the Cz'K _,ct of 72. consideration war, given by individual towns and their submittal of what they cndee wu be suitable, the CZ1,t1s choice was given to us: This being an ariea back to thle first major highway runining somewhat Pni-aliel to the coast encompassing a very large area including a major- ity of the population and their privately oxmcd property. This shows One quelstion is "."hy'lhon woe have state rt-ulartory commasin n no that although it is recognized that it be advisable to develop a cluding the Environmental Affairs Office, that deal directly'with -" u lt upon the Cotnnonleyalth's ptrong tradition of local govcrnment, cz-.al dcvelopmints do we need another Piece of ufneccssary bureaucracy. tlte final doccisions involving any far reaching Impact f~ill be mnde Certainly not to implement a draft of 800 pages that most liacly con- Y.- tana napping juriatrictions as proposed by the Departmont of rnviornrnantal .ffairz. Certainly not to have to provide funds for ,5:1�1.derf the -Definede moans by which the CZ!1 will govern this designated the setting up oF i new area of state bureacracy. *r '1'.o waill hava thic rnponsihility for dcle,-ation of the law-s to 'Ie 1r:lci:iontol7 'Flh t,%ree altcrnatives specified under the CZ.' draft hi ttt rcflects a portion of questions and objections to the all leavt final decisions to be madc by uhat is called the state. Is impending implementation by Massachusetts of CZMtA-72. After much thlin the c'erlcta. of rnviroicrie*al Affairs or the Bloard of Coz;tal deliberation and research, the Mew fedford-raihirhavcn flarbor Cor.,ission *-.azourcos? The only hope for input according to this would be on the wishes to go on record as bein_- against the draft as projected but lcfgislativc levol and then one can see the need for some k:ind of over- rcalizcs that there is a definite need for some guidance of our coastal ni.-'xt lsg- slation* You have to consider that it is extremely important arca'. .,t yor locale site, very strongly in the legislature and has the ''er to xt!h :hrolxghi y-nur arcas wiahc~ Yost also have to consider that T can not help but feel thattwa.as entered' 'secondary leisllation to help -- . tires hifts from election to election. This ir. a g-ow 4 the gutidance of onshore n !avcoomncnt in regard.s to offs-bore oil r1- *'�rtunity to say thals; hor.o rule governmentocan only givc you a constant ~�:.sr� *.Lth in thle Ic clojs1~nt. of your ou-n r.a. T II::~~ con-tantl.- hear.. tVh r,,avr!:s thcat this plan wIll be FLMCune ' - the Unitpj !1tatc.s Coverneriot w-.hen actuwlly tile act calls for funding on a 90' federal and 20'~ state share with some 1.2 million dollars already otfu11 submit ed, appro-,niated and no estimation as to how much will be required in the Capt. rdw-,ard 0. Sanchez, Jr. 3 wlkfa dad w'a~e~ On The Coles River CHARLES L. SOARES 2 PLEASANT VIEW AVE. SWANSEA, MASS. 02777 The enactment of a aeseachusetts Coastal Zone COAsTAL 701- ptbrr!?Am Management Plan ulil create additional Government whom 0 ~ ~ bureaucracy and give cotrol of our Coastal Zones to The town of Swnnsea has expresaedg-rd been one of the ---t active pnrt- icir-nt of the Comtal Tone Pneetsent Program s-nr, its Ancaptof by the Office of Environmental Affairs. virtue of our input and concern. P n-rert peql of time "nd work by mT'ny citizens hbs made it possible for our oommtnity to aB-u-, itself of a vo, This plan would be another cut in home rule. in this most important progr"m. Tn order to insure that all the time an! energy that has been put into the porrrsm become a reality, I urge all We hereby oppose the implementation of CZM. citizens to give is their full supprrt towers IeimplementRtion. Almost without exception the critics of the pror-rm have been special in- terest groups who st-nd to gain much for few. Xte have worked to fksure th maximum benefits is insured for the majority "nd most irnortantsfuture generations. I am only too Well aware of my owns needs for Alectpicty pr- i / 4, gas and other necessities, and have alwpys been willin7 to compromise in N u i order for the b-st possible solution to be arrivel at. ~ // 7 Competition in the costal zone will con ?tStmount, and wih the thra, / 2 of a slumping economy, unemployment, the*' Q1s- on of the necessary tSfe- *f .. - guards to our coastal zone are erain employing scare tactics. 7'mploym-nt and energy should be two of the primeconmideriitlons of any decisl'-tis - regarding the coastal zone, but not in the form of scare tactics and threpts of imp-nding diaastpr. Just imagine full employment Pn& unlimited 1 Z7 / energy, and a popul;:ce with no place to enjoy these things which many no, ---. W-'v V ... takefor granted. fe'ches, m rehes, vistas aeems to tse copatal zone for ) 1 urban citizens -e all Important consliersatons. 'Fe are talVinP.n- Anelt Y-A~ W t f U lQ"(- � with factors which cannot be duplicated or replaced. To late a good -xorkinp relationship between buslness and environmental in . terests have been one of the r-alities of the? prog.ram. Torking tozeth-r - Y' / f the Coass-al "one Pror"Pm has been d-ing makes this pos-ible. - r/ / TtIjfCT?774-,P,!P(I C"A'U7S L. L;c--S CZK- SWAFS~I , Y7ASS (-6 ,> _J ~ ~ ~ , cx4~J -I ~t _L~c~' 3C Y /7 31 / ~l K soo7~~!�6' ~rrzv~aL~ /j~lt4 ., c~ca~L~k~c ~ /a0 ~00 19~~~~~~~ I/A cd~~~~.r- %skc q !,. ~ ~. /,> 6 K.- ~ ~~~~~~ xp/ r.' .v ~. . I ,r :.1~.' !t, ,*~.lc --. S> t . i - * -1 -~~~~I ~The enactment of a Massachusetts Coastal Zone ....- ! ' ,,. Management Plan will create additional Government R/ + 65$i. (., .,' /4x. .;- bureaucracy and give control of our Coastal Zones to ' ..c. ,,z.,-gsc ';R C' . , >j~.,-'" st/"' the Office of Environmental Affairs. / 4;- - iH /l ,p 'This plan would be another cut in home rule. - . l i e Ue hereby oppose the implementation of CZM, wr _ t V<v/ -o .t g ef' vx / <' t ?- S < t- -;+ * - _ ~~~~~~,!. .'> -< V. K ~.;~, .... � L4C ~~~~~~-too'4 ,", .. y~~ .)' .I... C~~~~~~~~~~~~ . 'zr.. ,~ , ./ 1. ,� . ,.c..~.-aw�-.4', , ,>. -A - ..,,,. . ~ ~ ~ ~ ~ ~ 2s C..... . �~~~~~~~~~~~~'0 It is our opinion that implementation of a Massachusetts Coastal Zone Management. Program will add to the already dwindling control of local government and further multiply the bureaucratic process.tl Zone Management Coastal Zone Management There are a number of policies unclear regarding The Commonwealth of Massachusetts Executive Office of Environmental Affairs 100 Cambridge Street 'enforcement of same. Boston, Massachusetts 02202 The plan would not be adequately covered by ATTN: Marc Kaufman existing laws and Town officials would lose the right to Dear Mr. Kaufman: decide their own future. As a citizen and taxpayer of the Coastal Town of Wareham and as Wareham's representative to the Buzzards Bay Coastal Zone Advisory Therefore, we would like to be recorded as opposed Group, I would like the following statement recorded. to the CZ" plan. It is my opinion that the Coastal Zone Management Plan as presentli- ANS 4tdrafted falls to accomplish its primary goal of streamlining the management and development of our coast. The process of "networking" ~ { J~/J ~'-~.~~ '~_.---'-' e Gl simply adds another tier of bureaucratic machinery. -- . - . . 'C ataC' ' - "'"' In addition, the plan wrests control of coastal lands from the (- .-'- . , tcommunities in which they exist, thereby overturning the concept of -~~~~- -, ;4 ~~ A .... -~ ' . *"home rule". In its present planning form, the citizen advisory .~-L'i " / z .:2 . Ad,-', council has no real power to effect the decisions of CZM. SS2Rtr~~~ V/~~ S~~ /g does a ~ ~Finally, the Coastal Zone Management Plan as presently drafted O ' - d_ o, >does not strike a balance between economic and environmental needs Vj e-^ ; Hi- �^s^> P $ 5 S e and concerns. -The Plan 1is heavily weighted to conservation at the expense of economic necessities. If a true and valid plan is developed ,, 4- f>69ear for the coastal zone, it should be formulated and managed with input and control by the Department of Commerce and Development as well.as the Enironmental-Proteetiomideney. ,4~ {~-/ Cc| , .,..>^tL�&_ A d t !-One cannot help feeling after reading the PLAN that 1984 has /11w^ 52tyl /.' '/v?-d9,cE / t- .. arrived, or at least the handbook for implementing "big brother" as ) ,' > ^,; r c.A C - . ' cantioned In Aldus Huxley's book. *-SJ(, 61,,- Frankly, the prosoect is frightening. Just a brief look at the management chapter itself indicates the all-encompassing=and irrefutable control that Coastal Zone Management intends to set for Itself. � Coaatal Zone Management Page 2 November 15, 1977 For instance, the paragraph sites 28 line items which will be --HOUSE OFEPRESENTIES the purview of CZM. If any activity possible to conduct in the STATE HOUSE. EOSTON 02133 coastal zone has been left out, I can only feel it is an oversight. -9 The 'most unkindest cut of all", and to me the most unnerving, is item #28 in which CZM sets itself up as a non-assailable and self- perpetuating agency which 'promulgates rules and regulations neces- STHOMAS K. LYNCHm;e .r BARNSTABLE DISTRICT sary to carry out Its statutory responsibilities." What Is this 1 23PHINNEYSLANE Nolumol.osrce$sndAgf;cl but the insullatlon of an agency from whomever would disagree with CENTERVILLE MA 02632 ROOM 473F. STATE HOUSE T-? 7-6399 TB.. 727-2023 ~~~~~~~~~~~~~~~it? ~~~November 17, 1977 Another indication of the insidiousness of CZM may be found in the notion that CZM will provide and offer incentives to local communities. However, the incentives will be available only forC projects approved by CZM. ~ ~ ~ ~ ~ ~ ~TO: U.S. DEPARTMENT OF COMMERCE ~~pro~~J~~ects approved by CZ~M. ~NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION There is another area in which CZM misleads the reader of the OFFICE OF COASTAL ZONE MANAGEMENT PLAN: it states that people desire a system in which local decisions will be made at the local level. But according to the RE POSITION ON OCASTAL ZONE MANAGEMENT PLAN PLAN, local townspeople agree to submit to CZM, or state, decision an issues which Involve more than one town, or city. My FROM: TOM LYNCH, STATE REPRESENTATIVE, FIRST BARNSTABLE DISTRICT experience at these meetings with local citizen attendance in- dicates something somewhat contradictory to this statement. In fact, I believe veople want a system in which decisions will be fact, I believe peopl wanta sysem lnwhichdeelsons wll beThe past few weeks have brought much attention to the proposed made exclusively at the local level'if that decision effects only their town and at a regional level, not a state level, where such Coastal Zone Management Plan. I believe the CZM advisory decisions mitght affect adjacent or neighboring towns. committee would have attempted to focus the same degree of committee would have attempted to focus the same degree of CZrM, as it has been presented in the PLAN and for the last couple of years, may very well find acceptance today, since it has attention on their proposals however perhaps in a more positive a very strong conservationist flavor, and since on that basis, the local conservationists will see CZM as an agency to assist and and constructive manner than has been the rule thus far. further develop their interests. However, should the pendulum of CZM at some time in the future swing towards a stronger interest in I wish to indicate to you my support for the CZM plan. I believe commercial development, I suspect that the conservationists who presently support the notion of a CZM agency will "scream". May we need to uniformly enforce existing legislation and direct I suggest, therefore, that these supporters of the system as presently proposed give some very strong consideration to their support. resources along our coastal area. Finally, if we the citizens, members of the local towns on There are positive functions the CZM program could accomplish, the coastline of Massachusetts, are to accept such an agency as Coastal Zone Management, we must insist that CZM be made up of including funding where needed in erosion control, playing a role elected officials, and further that such representation include members from every special interest group now or in the future in strengthening our fishing industry, and keeping the area active in the coastal zone. Without this kind of representation, we will ultimately have no control over "big brother". in touch with and involved in off-shore oil activities. The Respectfully, I / overall streamlining of the permit process will go a long Ad {C ~/ (i)@ A' -way to making development a little easier for the builder M. .GO.ROB NSON while eliminating a fragmented state permit process. MGR:Jhb I recognize that these remarks may be a reiteration of policies you are all familiar with. However, I would like to outline cnewm of tI--- ,ir-,.IW ; lan cvtie; *i-ich I h 'li(-'- Vt'." can.,;d 102. concern thus far. Much of the discussion is settling around the phrase LEGISLATIVE AUTHORITY: LEGISLATIVE AUTHORITY: "Acting within their existing jurisdiction." The scope of Most of the changes in the ussuance of licenses and permits discretion granted to agencies by the legislative varies from and the authority that the office of E.O.E.A. is assuming statute to statute. This implementation of the CZM plan, is based on Chapter 806 of the Acts of 1974, which is now requiring an integrated approach towards critical areas, toward Massachusetts General Law, Chapter 21A. This chapter is the the balanced and best usage of all resources, and towards con- reorganization chapter for the Department of Natural Resources fliting uses of land-natural and commercial, urban and rural which created some new powers and clarified the roles of or historical and industrial, may be more encompassing than the Executive Office of Environmental Affairs and its the legislature intended when it enacted the law creating constituent agencies. In reviewing, Sections 2,3, and 4 of Chapter 21A of the General I believe that such discrepancies in scope and application of Laws, one will notice that broad powers and responsibilities the law can be cleared up through a joint legislative/executive/ are given to the Departments and Divisions of Environmental public review committee. Secretary Murphy has indicated from Affairs in addition to the Office of the Secretary itself. the outset that such a review process is anticipated. With Moreover, according to the State Environmental Policy under such a public review I believe we will not see a scope of Article 49/97 of the Constitution, it is declared: "The power beyond the Secretary's Mandate of Chapter 806 or the people should all have the right to clean air and water, freedom disruption of the intent of laws the legislature has passed. from excessive and unnecessary noise, and the natural, scenic, HOME RULE historic and esthetic qualities of their environment; and the Rules and Regulations which are adopted in the above procedure protection of the people in their right to the conservation, will strengthen the input coastal Representatives and Senators development and utilization of the agricultural, mineral, have in the overall development of the plan. Opening the forest, water, air and other natural resources is hereby approval of the CZM plan to the entire legislative body may to our area. : declared to be a public purpose." well be infringing on our own ability to set priorities unique This, going on the assumption that Section 2 of Chapter 21A to our area. focuses and defines agency jurisdiction and authority, it is Although the initial impetus for this plan came from the Federal assumed that such agencies will assume an affiemative duty Government, I think we quickly reversed that order by forming to inmplement the state environmental policy when they act within grass rools ad&Q ; i': ! it.o t.:t to foi-ul['lte the plan. their existing jurisdiction, whether reviewing a permit or initiating a project. 4. Conversations with Russ Silva of CZM lead me to believe that W'1 ttntoidietk of a 0$ b tt our plan has retained local control much to the chargrin of DrIvin of eprefa e the Federal Authorities. ,;fate seuse, Peston CZM is not a replacement for local.zoning. Instead it assures DAVID J. LANE that local zoning is meeting state regulations that are e ESSEX OSITRComndtaesI NMORTH MAIN ST. TA F.lS.th C-' important. The plan has no effect on local zoning or building IPSW.CH 01935 STOUOVF ROOM 236 TSI= ?SS-Se02 TELz 7274645 permits beyond what the Conservation Commission would now review. It should be clear that it establishes no state October 28, 1977 zoning. The planning decisions, concepts and actions were all public Ms. Margaret Reynolds Coastal Zone Management activities. CZM has produced two large volumes that we all saltonstall building 100 Cambridge St. need to study. Less talk should be directed at the size of Boston, Mass. the volumes and more at the content contained therein. Margaret, this will confirm our conversation of yesterday wherein We would be kidding ourselves if we did not anticipate conflicts, I requested a change in the Coastal Zone map on Plate 4. oversights or redrafts of the existing 38 policies. Our own The area marked in red on the attached copy of Plate 4, should be deleted from the proposed area for preservation or restoration. accounts and interpretation of the policies has shown that we It is an operating gravel pit, in operation for 100 years, which used to be upland and was excavated below sea level in the early have begun that revision process. I expect this stage will 1950's. In 1953 a permit was obtained ( D.P.W. permit 15176) to excavate a channel to a tidal creek to allow salt water to enter bring further clarification of the policies. the gravel excavation. Gravel continues to be excavated by means of a drag line. In conclusion I believe that after the public hearing process In 1969 when the coastal wetlands in this Particular area were is complete and a final draft is submitted we will have a restricted in accordance with Section 105 of Chapter 130 of the General Laws, this gravel pit was specifically excluded from the restriction after a public hearing (see attached plan of land Coastal Zone Management Plan which reflects a positive balance restriction after a public hearing see attached plan of land showing areas to be finally restricted). between our environment and our need for growth. Since it is the intent of Coastal Zone Management to restrict "coastal wetlands, not already restricted, Coastal ZOne Management would impose an additional incumbrance on this commercial activity that was specifically excluded in 1969 after all the facts and local opinions were aired in a public hearing held by the Depart- ment of Natural Resources. DAVID J. LANE State Representative DJL:c ~idlvte of Reprelntiatzest , tae pAnsen, woatrnt It appears that unless the area in question is deleted from the map it will be proposed as part of an area of preservation or restoration. Such a designation not only requires priority application of the DAVID J. LANE Co ltt Coastal wetlands Restriction Program (Policy 1) but would also cat- 2oT ESSEX OISTRICT ..IS.nnd lh C., egorically prohibit new dredging (Policy 2). Not even the North IPOWICH MAIN S.01931TE DOUE OF3ICE ' Shore Ocean Sanctuary Law prohibits continued operation of the gravel rI-swicHl.gSB OoM13S1 pit since " the operation of existing .... commercial ...facilities, TEL. TGS-660l CtL 727414i4 are exempt from the prohibitions in the law. I'm familiar with this particular area because it is owned by family members. I don't believe that it is the intent of Coastal Zone Management to restrict operating businesses that do not further en- November 21, 1977 croach on the Wetlands. i ope that the rea Ia question nam be deleted from the map. Other- Ms. Margaret Reynolds wise Coastal te kaaegeomat would ilpose as additional encumbrance Coastal Zone Management on this commereial activity that was specifically excluded from Saltonstall Building restriction in 1969 under Section 105 of Chapter 30. 100 Cambridge St. Boston, Mass. 02202 Margaret, I thought I should elaborate on our telephone conversation concerning my letter of October 28, 1977 regarding a change in the DAVID J. LANE Coastal Zone map on plate 4. State Representative State Representative As I said in my letter, thearea marked in red on the copy of Plate.4 DJL.c attached to that letter should be deleted from the proposed area for preservation or restoration. It is an operating gravel pit, in oper- ation for 100 years, which used to be upland and was excavated below cc: Russell Sylva sea level in the early 1950's. In 1953 a permit was obtained (D.P.W. permit 15176) to excavate a channel to Soginese Creek to allow tidal Evelyn Murphy salt water to enter the gravel excavation. Gravel continues to be excavated by means of a drag line. You mentioned that it appeared to be in the 100 year flood plain. Even though salt water is in the excavation at all times it could not possibly be a flood problem because the gravel pit was dug in a hill and slopes of 30 feet or more in height above mean low tide surround the excavation. Flood waters could never rise above the excavation or do any damage. Since it is the policy of Coastal Zone Management with respect to conditioned significant resource areas, "to place many of these areas under the Restriction Act in the future" (Volume I, page 28), it appears that continued operation of this gravel pit would conflict with such State policy. Yet in 1969 when the Coastal Wetlands in this particular area were restricted in accordance with Section 105, Chap- ter 130 of the General Laws, this gravel pit was specifically excluded from the rest after a public hearing at which all facts and local opinions were aired before the then Department of Natural Resources (see plan of land showing areas to be finally restricted, attached to . the letter of October 28.) MOUSE orF MEPRESENTATIES STATE HOUSE, SOSTOMN 02,33 the functions of the EOEA and to coordinate the activities of the departments and divisions within the P.EA. The Se~cretarv is further authorized by ,T.clstin4to`slv arlr'iniqtratix- and. j-irsrlictionoal cenflicts3 betwn-n any, qJuch PETE LDO2WE2LL Co.. 11n.ca (EOEA) agencies or officers; ... to impolement, uoon reeceust of El AN~TATIE LISRIC Affl.os*(.IA .05 PAIR STAL DISTRITaysE 1,1A anvo ~ioporr jonlyar~l - 62 1 .26358 ROMGMSAT1OUE4.Tv oow'tr ot `comniehiensive piannille` is cj-early -- :� ~!I*77 '"n"fuirti~nn do Onn includ" -h i*-n ic- tif sls-.fj r-"'TIilatY.Ons concir~nine 1401nd-use elenn-ine or Qnere'. nolic'v. ,"h- ''1 2?'>? ~~~~~.*~''I tli~~~~tt'iflst~~~r-1 ~of' activitios "uen not imu'%a., int'ee-"'r "if th" ei nc-'2"nc & Atres"Iiciric Ndministration ofteSceayt su ustantive reoulations bindino nrivate nirties as to anorn';, and land-use nlannin,. iewsth- ne-nr St., ~~~~~~~~~~~~~~to re~soly' 'admniostrativ." 501d Ililris'1ictional' conflicts refers to matters such as; ocannowr andl budet. oriorities. in+-Pr-aen-nc-l II, Ft C * CI~~~~~~~~~~~oqoeran'teal beudarni s and ot'ier s',chi ministerial I admini sri-ative' and "Jurisdictional" matt~ars. '.;,-rar'lqtt 17, ta "aaerfftCrf7loio7vna The reaulations in Czt Plan, Vol. 1, Se-ction 4, the I'lanaoenont Praft~ ~ ~ ~ ~ ~~~Scie e-.sev"ro-fA t-ho Scentiar' to r-tu'uirno that all a-l-*J* c-ing1~ are Lo carr-v nlt the 7%I 'lan in full in cerantinef o-rr'its, in lis- IUI.siI1 funis or in conduiction an-7-7-nd of activity in the. ceental '-r~ IS rolj~lS s: zone. In other words, should an -issue arise as to the i'niehit to he,7 Err the fellewine reasons I respectfully request that the civ's to CZ'1 nolicios, Via'; ore to ho' dispositive, i.e., final. "'he .t:'torlten foir�nint rqasosIroterula y ainnrwel o that tasc1het censtituiti onalitv of this set of oniorties should he seriously -sI Yr. i'v, thie M'nsaschusctts Secn-tarw of T'nviro'-I.rtalqusind (ePae1) Affairs' dons Inot have theo statutory authority to imnolerent the croorain as oresentod. ~~~~~~(2) The CZYM Plan as proposed rule A 9-0, Pg. a-29, states, tivi i~~~roaram as nresented. "~~~~T'jen. shall.hr. in th-h ofl'ir o' t~i" Srncrotary a Coastail Men" '-in, v' tohr cr'i~ntto d~" thant-coer a lanauement Offi.ce to lte adeinstered hyv a D'irector of Coastal - . n"IIII..--v,'~~~~~3. :?'I t ';%`uiaj' ''i-, isnf. 0', th' VI-n- rn nfs fattnrs to ibe consi,,-red. "c' C'- efisolufel r cenfad~~nt thet If t~'i". action does ~ cr,,ation of a new stat" a'-i'ncy? This should 1,- den"- T leIsltv conjLd-; "vit J.f tii "'"tu-n (ions t'e- coris'hs' ceti acI'-r';'- f1;e fi�' ... f;~I~ at l-ast cnn-- Virciri Islandls hiave lieon vetoed3 and Pennsvlvania has b aa relative to th" r'o';"x' of eminent domain as in (d) , sod the, -:-Ir.-li" ,5 -1"ina. n-"-r1% of 501111'" l n'~l '0-' 30 (6) . A revie'., of f-h'- n"a laws appear to enant such authority oresently on a very lir-ited rely Concern reeiardiin' the Secretary's letfal authority basis at the, comnmissionnr ]"-vel inc'lude the flqie:(4) The CZI Plan, p. a-40, elves the. office, of C?? the righit to appe!al (I) Th C%1 1100 ecttain a oroesed rnulaten to "' adol-r'dto the courts fromI -in" dcc(ision rendered b'; an E052 rimancv in an adiwit - of prorZ)Tulfitionr tilel as a hinrlina r'-'ul ati n (?n ',I of Envfroer.'anta] fftairs to promulgate the CZM Plan as a binding recaulatien is nniplcii'iily basedl on th- nro i-jens liv I.T.. c.?iA, section 3, to cenwtlct cemriii-henstv- nllanniuq with resrnec't to The questioning of the secretary's authority is not new and it has THE GENERAL COURT OF MASSACHUSETTS not soley come from the business community as supporters of the State Senate ICZ'4 Plan As Is" would have you believe. STATE HousF. BOSTON 02133 In a report to, thr ffc of Coastal Zone ?Ianaerinrnt r'xrcutive Of fice of Environmental Affairs, fir. Alan H. Ttaufman for the Conservation TLaW roundati-n of Hiew F~naland, on July 1, 1975, for- warned the secrotarv of thin ice. N~~~~~~~~~~~~~~ON. JOHN F. AYLMER warnea tile- sncretarv o f t h i n Ice. ~~~~~~~~~~~~~~~~~~CAVE. AMU ISLANDS DISTRICT OIL"A 1. T.... R--~H A6315TAWT MIIORIlTI LEADER CA~A f"'! satod, -;"t sicinifican-tly. it tuqt~ I)- emp)Iasi7.ed th'at the 1,ct, ARADDILIRUr '"itse'lf, fi-v' liti:.V' to alter the rana'-ori,-nt of t'v' arrav ofNA SE"AP . eIR Jc tj D -i' -- q nlace within t'v3! arr-a thich is undorstoocl as ... EL-- A1AI. ,olt i a' f coa -,t~a zrwq.' "in thle ahee--ncP of iinu-ual anti in- Novvenber 17, 1977 !,T lrir ;,-' a-)v-h' f7rjnrr (t'irnueb ,llu1i nrclr'r) and/or Ui,~ rn-nrai thart alrucI th adoption of amanaqner'nt procgram), the TO: The Hearing's Officer 7r iny-- little rrnt.a lcthen stateto assess its nosture. with Officp of Coastal Zone Management rlinjr)ct ho .lnunrblmsand possibilities within Vie zone. NNOAAA ft-kit suj'irn-.iinr '-'cutives or lenislativp. action, nrivato seon-n inetr-:!sts, individual citizens, and local state and fxed~eral avnc1sPOM eaorJh . ymr CpPlmuh& sad Dsrc Hzill ass-ntiall'2 conduct the~ir bins.in th-! qamp manner as hefornFRN Sen t r J hP.AleCp'Pyouh&IadsDtic tire osar-ac of the Act." If Ia ssnchisqtts is to have a Coastal Zone Manarifment Plan, t lnr-t Please b-! advismed that an earlier Appointment in Boston Pronvents thlat it h- eione so on a solid lecfal foundation. T sulbmit t'hat Vie ~ e J -I1~ till 'JallY citizens of Southeasteru Massachusetts f i. c i .iqu Of fir-. of LCoastal, ':n(-:7Tanaqemont and the- National Oceanic anti Atmos- Anj CommenOtary on tile Coastal Zone Plan recently submirttvd for con- ,'-,heric Administratirm ),,i determined that: a solid Ienal foundation sideration. doss exista~d lets ken Massacusetts outof court.I commend the local CZM Advisory Board f or their h~ard work and Very truly yours, dilicence in preparing this. plan, in addition to tile many arlea rec-i- d#-nts who crontributed their views and knowledge towards thle plan. ThQ fraci).e area in question presents sicnificart environmental Peter L. "cl'elcvn:erns along VTitil economic considerations that are unique to 13arn- State 11-nrenn tativ- sh~ Counlty. I %you'ld li!< to be placed' on reoerj sasocrt~inrl, the plan- tlr:.,'>'rv1.,r - j1. .r'; .Ie~ n IA 'l :Ij anld west by iRoute 28 andl on tile north by Route 6 (the Mid-Cape High- w~x.) A*J'J.Lv-111,01t of this land .181 has b.eun zonle! Cc-.vr tha '.e soiis co;Ite=s hexe. i btelieve tile Advisory board has recently au-Jress, n~t) t .~t2: ;i~til jocal 2(ZidnSand .LCij5 meeting the desires of area people both in the drafting and imple- 1.1-11-atio:, of tire- C;'M plan. Local officials arv most capable of en- forcement and I trust the Advisory Board concurs with this view. I feel, additionally, that the CZM plan had ought not be fashionec at the legislative forum, but as has been suggested, by the admini- strative route. .30`7 -2- State officials must not lose sight of the fact that success Massachusetts Coastal Zone Management - Public Hearing of CZM plans depend directly on the involvement of local towns- poole ancd offcials who should rightly determine their future, and Cape Cod Regicmnal Technical High School that of generations of residents who will occupy the pelisula in years to come. November 17, 1977 Very -inc~r,-lyyor_ emery oinckr.Jy your-, The following statement is ent+.ered into the record by the i e ~ ~J J" . Brewster Conservation Commission: J,:,u F. Aylmer, 3.n.-tor The Brewster Conservation Commission wishes to express support for the Coastal Zone Management Plan, and to record its opposition to House Bill 6687, recognizing that this bill would paralyze the efforts of the Office of Environmental Affairs. Brenda J. Boleyn associate member Brewster Conservation Commission 438 Freeman's Way Brewster, Mass. I'assachusetts Coastal Zone Management Public Hearing 80 Cape Cod Regional Technical High School QUINCY HISTORICAL SOCIETY COj , ,. , ADAMO ACADEMY BUILOING f:,., 'November 17, 197'1 ' .... . '.'.'7,, 8 ADAMS STREET ' -)::t,~.".;, QUINCY. MASSACHUSETTS, 02169 The following statement is entered into the record by Brenda Boleyn: November 21, 1977 T did not work on this project, but I think that this document Massachusetts Coastal Zone Management ('lass. Coastal Zone :anagement Program) represents a tremendous 100 Cambridge St. 1O0 Cambridge St. achievement, and that this kind of planning can only serve to build and Boston, Mass. 02202 strengthen the economy of the Cape, not weaken it. It will provide the Gentlemen: coordinated effort we have long needed, and I'm pleased to see that our I personally favor the principles of Coastal Zoning. barrier beaches and dunes will receive some attention. I believe that Quincy enjoys approximately 27 miles of shoreline, and it is critically important that this natural environment be recognized, the entire Cape should be included in the Coastal Zones and I am opposed carefully evaluated, and properly managed. to House bill 6687. In some manner the local community should have an input towards a coordinated effort to protect this waterfront; but, actually, the ~Brenda J. '~Boleyn ~problem is too big and too critical for each local community to handle. Brenda J. Boleyn Og4--4 If the Pilgrim fathers had landed in California instead of 438 Freeman's Way Massachusetts, the whole of Massachusetts, if not New England, would Brewster, Mass. now be a national park. In my opinion, the Coastal Zoning Act should be accepted immedi- ately, and then every effort should be extended to make it work. I respect the opposition's fears of "just another layer of regulation," and unquestionably the multiplicity of layers must be overcome. That, too, is a legislative challenge that must be over- come by a specific political unit with the support of the public. Sincerely, . illiam .. W C iin1 President O'C:w CZM Meeting 11/22/77 COMMENTS FROM - RALPH 11, GOODNO for COASTAL ZONE MANAGEMENT PUBLIC HEARING - name grace saphir, East Sandwich NOVEMBER 22, 1977 I am the founder of SOS, Save Our Shores which was founded in 1968. Its sole purpose was to nrotect the foresthores basically of Boston Harbor. Please forgive my absence from such an important hearing. This afternoon But times change. What affects Boston Harbor affects the whole coast. I am involved in conducting a teacher training program in Coastal Resources - a seminar we've been doing since 1971 - and thus cannot attend today. I attend these meetings to learn what the public is thinking and today My name is Ralph H. Goodno from Danvers. My interest in Coastal Zone I spe ak as an individual. Management has evolved through 10 years of Cooperative Extension Service . realize it is a necessary formality to hold these meetings and I thank work as a community Resource Development Specialist in coastal communities, you for doing so. I few questions. and in the last year and a half as an Extension Sea Grant Marine Specialist,r d--- -- - - hfeTue.o a program cosponsored by t'niversity of Massachusetts and the MIT Sea Grant 1/ ConresAs I understand it, passed the CZM Act (PL 92-583) and program. accor ding to your literature Coast Lines Vol. 3, every coastal state My work has involved providing educational programs and services to has a CZM program. community officials, business interests, concerned citizens, consultants, These hearings precede the acceptance of this state's report. Why and special interest groups, which have focused on zoning, land use planning, then, at this time, do I understand that this report has already been wetland protection, coastal recreation, waterfront development, and marine given the go ahead from Washington? Isn't this placing the cart before education. the horse? I feel that the Coastal Zone Management plan fills an urgent need to provide 2/ A common citizen's complaint seems to be how will management take place, a balanced and scientific rationale for officials at all levels of government, since no new agency will b, created to administer. Yet, in the Addendum, and citizens living in our coastal zone as a basis for making intelligent and Vol. 1 pg. 4, a siting council (EFSC) has been set up for this purpose. comprehensive decisions for growth. One of the serious shortcomings of community Can you explain why the local existing authorities are not capable of efforts to direct growth is the difficulty in obtaining the kind of information planning and implementing their own plans? that is needed to support the environmental conscience of people who care about their city or town and its resources, but who, in the past, have lacked the time 3/ More citizens and representatives of towns seem vitally concerned about and funds to obtain supportive data. How frustrating it has been in the past to the loss of home rule. Although in every piece of literat(m and vocally match wits against old fashioned ideas about growth, and development interests you have stressed "not so," don't you think that giving the state the with well-heeled proposals. power to'manipulate'permits ana plans of local authorities is taking Now we have a vehicle to evaluate growth issues, to understand the trade-offs, away home rule? to create an awareness of long range impacts, to take a comprehensive look at things. 4/ The protection, recreation, and restoration of the shores from the waters edge to X mile inland has been so stressed by the public that one would The concept that resource protection for survival is not a pipe-dream, but believe that this is all that CZM is interested in. Yet, isn't it true that is fast approaching, and must be weighed carefully against poorly conceived what we are talking about is the feet that offshore sand and gravel development proposals is surely an important aspects of this work. Yet, issues removal, siting for power plants and oil refineries are the chief interests and recopmendations have been carefully made without further restrictions and re- of those who are so vitally interested in _shCag CZM? No one stresses gulationU4.ith guidelines and a sense of direction to provide the kinds of growth this angle, that are essential and desirable, and protect critical areas. In addition, the staff at Coastal Zone anagement have been especially helpful In no way do I disapprove of the mor erits of having funds available for comm re in cooperating with Extension Service programs; programs which have an importantd wiee use of the foreshores or coast. I readily multiplier effect in aiding teachers to develop sensible attitudes among their concede that all foreshores or coastal -ones have some areas that could be students, and for officials and their boards whose role in decision making is be- even enhanced by creating water dependent develop you are sincere coming more and more complicated with little time to absorb the multiplicity of about protecting the coast or foreshores, why ded-e whWe 'r to go inland for technical information for the benefit of their town. mile? Why not let the cities ead towns decide whethcr it is fitting for a development in the area?'- I enthusiastically support the Coastal Zone Management plan and hope that an enlightened citizenry follows suit. / Therefore, I suggest: 1/ That the Coastal zone managers in this state be the experts who advise Ralp H. Goodno the local existing powers to carry out their plans for protection and Regional Extension Sea Grant Marine Specialist development of the foreshores and the state supply the funds for doing so. 11-22-77 RHG:fc 3/0 CZMN grace maphir 11/22/ 2 2/ That the state through the Environmental Department insist that plans be presented by locag boards and updated a8 needs and changes arise. 3/ That the state stop this unnecessary disguise of protecting the public STATEMENT BY from itself. It should make public in simply understood language that the CZH would have Jurisdiction over all water areas and all STATEopwned islands. LIEUTENANT GOVERNOR THOMAS P. O'NEILL, III AT THE COASTAL ZONE MANAGEMENT DRAFT ENVIRONMENTAL IMPACT STATEMENT HEARING NOVEMBER 22, 1977 GOOD AFTERNOON. I APPRECIATE THI1 OPPORTUNITY TO COASTAL RESOURCES FOR THE FUTURE. THE ECONOMY OF THE ADDRESS THE ASPECTS OF THE MASSACHUSETTS COASTAL ZONE STATE DEMANDS NOTHING LESS. FUTURE GENERATIONS OF MANAGEMENT PROGRAM WITH WHICH I AM MOST FAMILIAR. I MASSACHUSETTS CITIZENS WOULD WANT NOTHING LESS. HAVE BEEN INVOLVED WITH CZM THROUGH MY OFFICE'S WORK ON FEDERAL-STATE RELATIONS, ON IMPROVING AND REVITALI- ONE OF MY PRIMARY RESPONSIBILITIES HAS BEEN T) ZING MASSACHUSETTS FISHERIES AND ON OFFSHORE OIL AND ESTABLISH AN OFFICE OF FEDERAL-STATE RELATIONS THA1 GAS EXPLORATION AND DEVELOPMENT. IN EACH OF THESE BRINGS FEDERAL TAX DOLLARS BACK TO THE BAY STATE. THE ENDEAVORS, I HAVE WORKED CLOSELY WITH THE GOVERNOR, CZM PROGRAM REPRESENTS A FEDERAL PROGRAM THAT WILL. HELP THE DEVELOPMENT CABINET AND WITH ENVIRONMENTAL AFFAIRS BOTH LOCAL AND STATE GOVERNMENT THROUGH AN INFUSIOn. OF SECRETARY EVELYN MURPHY. I FULLY SUPPORT THE CZM NEW FEDERAL MONIES. THE COMMONWEALTH WILL BE ELIG[BLE PROGRAM AND URGE ITS SPEEDY APPROVAL BY THE DEPARTMENT FOR 1.2 MILLION DOLLARS ANNUALLY TO IMPLEMENT THE .ZM OF COMMERCE, FOR I BELIEVE IT OFFERS THE SINGLE MOST PLAN. A THIRD OF THIS MONEY WILL GO DIRECTLY TO Oi JR SIGNIFICANT AND BENEFICIAL IMPACT ON OUR COASTAL CITIES AND TOWNS. AS A RESULT OF CZM, CONGRESS HA, COMMUNITIES. APPROPRIATED ADDITIONAL FUNDS TO COASTAL STATES FOR RECREATION LAND ACQUISITION. THE COMMONWEALTH MAY MY INTERESTS AND ACTIVITIES OFTEN TAKE ME TO THE BE EL.IGIBLE FOR UP TO A MILLION DOL.LARS A YEAR IN COAST OF MASSACHUSETTS,' AND I IMAGINE THIS IS TRUE FOR ADDITIONAL RECREATION FUNDS. FINALLY, THE FEDERAL MANY RESIDENTS OF THE COMMONWEALTH. THE COAST IS THE CZM OFFICE HAS A COASTAL ENERGY IMPACT PROGRAM, OR CENTER OF COMMERCE, INDUSTRY, ENERGY FACILITIES,' TOURISM CEIP. MASSACHUSETTS CITIES AND TOWNS WILL BE ELIG]BLE AND MANY OTHER ACTIVITIES IMPORTANT TO THE ECONOMY AND FOR UP TO $26 MILLION DOLLARS OVER THE NEXT EIGHT 8) TO THE QUALITY OF LIFE OF THE COMMONWEALTH.' WE MUST YEARS TO AMEL IORATE THE IMPACTS OF ENERGY DEVELOPM NT. ALL.OCATE OUR COASTAL RESOURCES CAREFULLY IF WE ARE TO FOR EXAMPLE, OCS RELATED ACTIVITIES IN NEW BEDFORD OR HAVE THOSE RESOURCES MEET FUTURE NEEDS AND OPPORTUNITIES. FALL. RIVER MIGHT PLACE ADDITIONAL FINANCIAL STRAINS THE CZM PROGRAM PROVIDES US WITH THE ONLY RATIONAL ON THESE COASTAL COMMUNITIES. CEIP FUNDS WILL HELP MECHANISM TO BALANCE THE COMPETING USES AND INTERESTS MASSACHUSETTS COMMUNITIES TO OFFSET THE COSTS OF ROADS, ALONG OUR FINITE SHORE, AND TO GUARA'NTEE A WEALTH OF SEWERS OR OTHER TOWN SERVICES. ALL OF THE CZM MONI S -1- -2- REPRESENT MASSACHUSETTS TAX DOLLARS RETURNING TO THE WILL HELP THE COMMONWEALTH'S COMMERCIAL FISHING INDUSTRY COMMONWEALTH, THESE FUNDS ARE IMPORTANT IF WE ARE TO TO GROW AND TO TAKE FULL ADVANTAGE OF THE 200 MILE HOLD DOWN OUR PROPERTY TAXES WHILE IMPROVING OUR FISHERIES CONSERVATION ZONE. IT WILL HELP CROWDED HARBORS ECONOMY. TO SOLVE THEIR PROBLEMS AND TO IMPROVE ACCESS AND FACILITIES FOR BOATERS AND SPORT FISHERMEN. HAVING A THE CZM PROGRAM ALSO REPRESENTS A UNIQUE OPPORTUNITY CZM PROGRAM IN PLACE WILL HElP OUR PORTS AND HARBORS FOR THE COMMONWEALTH TO REGAIN CONTROL OVER FEDERAL TO TAKE ADVANTAGE OF THE POTENTIAL ONSHORE SUPPORT ACTIVITIES IN OUR COASTAL AREAS. THE FEDERAL CZM ACT INDUSTRIES FOR OFFSHORE OIL AND GAS EXPLORATION AND MANDATES "FEDERAL CONSISTENCY." THIS MEANS THAT ONCE DEVELOPMENT. THE MASSACHUSETTS CZM PLAN IS APPROVED BY THE SECRETARY OF THE U. S. DEPARTMENT OF COMMERCE, FEDERAL PROGRAMS THE MASSACHUSETTS CZM PROGRAM WAS DEVELOPED THROUGH AND THE SPENDING OF FEDERAL FUNDS MUST BE CONSISTENT AN EXTENSIVE PUBLIC PARTICIPATION EFFORT. MORE THAN A WITH THE CZM PLAN. THIS IS AN IMPORTANT PART OF OUR THOUSAND PUBLIC MEETINGS WERE HELD OVER THE PAST THREE FEDERAL-STATE RELATIONS WORK. IT GIVES US AN OPPORTUNITY YEARS TO PREPARE THE PLAN. THE PLAN IS BALANCED AND TO SET PRIORITIES AND CHANNEL FEDERAL FUNDS BASED ON TAKES INTO CONSIDERATION THE MANY NEEDS OF COASTAL THE NEEDS OF OUR CITIES AND TOWNS. COMMUNITIES AND THE MILLIONS OF USERS OF OUR VALUABLE COAST. I FULLY SUPPORT THIS PLAN AND THE DRAFT THIS LEADS ME TO MY THIRD POINT; THIS ADMINISTRA- ENVIRONMENTAL IMPACT STATEMENT, TION IS COMMITTED TO REVITALIZING OUR EXISTING CENTERS -- WHETHER THEY BE URBAN, SUBURBAN, OR RURAL.' THE CZM THANK YOU. PROGRAM REFLECTS THIS COMMITMENT THROUGH THE ALLOCATION OF FEDERAL AND STATE FUNDS FOR TRANSPORTATION AND SEWAGE TREATMENT PROJECTS. OF EQUAL IMPORTANCE,' THE CZM PROGRAM SEEKS TO -DIRECT COMMERCIAL AND INDUSTRIAL DEVELOPMENT TO OUR PORTS AND HARBORS. THESE AREAS NEED AND WANT ADDITIONAL COMMERCE. THE CZM PROGRAM -4- -3- ro -,, E / C., l. ..,?,i..l-'-I~/, November 22, 1977 NLIV 28 1 To: Evelyn Murphy, Secretary Office of Environmental Affairs / / Coastal Zone Management Program / fr 7 100 Cambridge Street Boston, Massachusetts 02202 -'a X2e Z A Il. i As a member of the South Shore Citizen's Advisory / S 5Ci Committee of the Coastal Zone Management Programs, a member of the North River Advisory Executive Committee :"te/ . ./. .. for Scenic Rivers, and the citizen representative for . / < - the Town of Pembroke on the Old Colony "208" Water_ 5, - .. ( ' Quality Study, I endorse the policies of the CZM Management Program. In view of the needs for the siting of energy plants, oil refineries, and waste-water treatment facilities on the coast of Massachusetts, it is impera- tive that fragile resources such as the marine environ- . /. .... ', L, ment and critical wetlands be protected. By designating / the estuarine salt marshes at the mouth of the North and ill $ ( ( South Rivers as "Areas of Preservation and Restoration"' CZM takes a positive step-toward-this protection. By- ,/.-/� f {o e .1,�,, o-.,- / / Cfe. ,-",J . . giving the same priority to the North and South Rivers, the program-will protect the present. visual, environmen,-, . t c' ./ ,r, tal and recreational value of these resources. 4 w 4 Pembroke resirlents are mindfull that'by CZM's sponsoring preservation of the North River's tributary, / : ..i, Robinson Creek, the annual herring spawning will continue. ,� '[' , 1/IS ' [ " t' . The Citizen's Advisory Committee of Pembroke looks forward .to coQntinvi-ng -elationsbipwith your. stafffz. - . hA.. . x*-, ;)r r -- Sincerely, --- .'.t. J'....... b. ... . p-.'t,,e Jea Poley Pemroke Member of (e Ci Zen's Advisory Coin ai 69 Brick Kiln Lane Pembroke, Massachusetts 02359 . . . b .) 2. Statement of Dr. Thomas M. Leschine on the Massachusetts Coastal Zone Management Program this possibility is masked somewhat by the way the Program November 17, 1977 Harwich, Massachusetts addresses its issues of concern separately in the Coastal Harwich, Massachusetts Policies chapter. It seems to me that CZM's response to My name is Thomas Leschine. I am a mathematician and criticism of its handling of specific issues has been to have been a Fellow in the Marine Policy Program at Woods Hole supply increasingly more detail and refinement of each issue, Oceanographic Institution for the past year. I have an aca- rather than to attempt a more integrative approach to planning: demic interest in the policy applications of decision theory The form of the present Program is substantially the same as and I am particularly interested in the degree to which gov- that of the previous CZM Preview, but the size of the document ernment coordination and direction of decision making toward has increased considerably. the achievement of policy goals is amenable to mathematical I do not mean to criticize the planning approach CZM analysis. Coastal zone management is especially interesting has taken, but only to point out that it may not, for example, to me in this regard, because of both the scale of its appli- always be possible both to "...minimize the adverse impact cation and the diversity of the interests it attempts to of man's activities upon the marine environment," an objective accomodate. state on page 79, and "...maximize the economic return and I of course cannot predict what the outcome of enactment public benefit for publicly supported port and harbor works," of the Coastal Zone Management Program in Massachusetts might objective stated on page 174. Some day an important marine an objective stated on page 174. Some day an important marine be, but I do believe that the Program should be approved. environment area may stand square in the way of a needed har- Certainly it has both strengths and weaknesses as presently bor improvement. The use of regional committees to set the construed, and I believe that the specific issues to be ad- priorities for specific areas found in Chapter 5 priorities for specific areas found in Chapter 5 should help dressed in either approving the Program now or in evaluating minimize such conflict, but the Program may always be open to its effectiveness in the future should reflect awareness of attack because of the way it seems to speak on different levels the following general concerns. with different voices. First, it is not surprising that the many generally Secondly, some policies in the Program which potentially stated objectives which appear in the Coastal Policies chapter conflict are stated with considerably different degrees of firm- on the CZM Program document conflict to some degree. Though ness. For example, the charge ness. For example, the charges to "conserve" and "protect" it seem: inevitable that this conflict will manifest itself at . are prominent in the statements of marine environment Policies the policy and program implementation level in specific cases, (1) and' (2) while energy policies state only that inland sites .3 /5 for energy facilities will be "considered." This kind of boundaries of the relevant administrative units do'not match difference no doubt reflects what may be a politically those of natural systems. It seems to me that Massachusetts realistic degree of decentralization among authorities whose can offer an interesting test of the value of having adminis- decisions affect the state's coastal areas. In this case, for trative boundaries match natural ones in that the Cape and example, EOEA seems to have clear lines of authority for directing Islands boundaries are of this type while those along the those aspects of its marine environment policies which fall rest of the coast are not. Will such diffuse goals as under the Wetlands Restrictions Program, administered by its protecting ground water quality be easier to achieve when Department of Environmental Management, and a more tenuous con- administrative boundaries match natural ones and will more nection to the local Conservation Commissions which administer orderly development actually occur on a regional basis under the Wetlands Protection Program through a permit system. on this regime? Will technical assistance to local governments the other hand, the Energy Facility Siting Council is es- be spread over too large an area to have significant impact or sentially independent of EOEA. will its use for whole-region problems result in greater This particular contrast is especially striking when one benefits to the region than would have been attained otherwise? compares the energy policy statements of the present CZM Thank you. Program with the much stronger language found in the statements of these policies in the CZM Preview issued only a few months earlier. Does CZM have the authority to assure that future Dr. Thomas Lesohine Marine Policy Program energy development does not preclude its fulfilling some of its Woods Role Oceanographic Institution Woods Hole, MA. 02543 other stated goals? My final comment concerns the landward boundaries Massa- chusetts has used to define its coastal zone. The over- riding intent of the Coastal Zone Management Act of 1972 seems to be to provide'for orderly and rational use and development of coastal resources so that the coastal environment, and the physical environment in particular, will be protected. Bio- logists~and other scientists often complain that the pursuit of such protective qoals is complicated by the fact that the it LW~~ .vSp1i'er Yl7/i - 'Wr, 4. Testimony - CZM - Harwich - Nov. 17, 1977 Dr. Judith Spiller v.H.0.I. Woods Hole, R2a. A further example deals with. the problems encountered in es construction. Due to the similarity of the subsurface of the Based or. physical properties, I argue that Coastal Zone Cape, the same problems will be encountered in Truro as in Harwic :Management boundary should remain where it is, including the A ur.ifed approach to development of the Cape should simplify entire Cape. A single event, the Pleistocene gleieation whlch future development. Thus, the entire Cape should remain within occurred approximately 10,000 years ago, formed the gemogy the boundaries as defined. of the Cape, and it played a dominant role in the subsurface geology, the distribution of soils and the occurrence of vegetation on the entire Cape. Further, presence of all our physlogrephic features such as hills, ponds, marshes and harbors is largely attributable to this event. A specific example of the connectedness of the entire Cape deals with our water supply. Glaciation resulted in the deposition of a series of sandy layers which filter, sanitize and store our water. These layers are called aquifers. Aquifers are recharged at the lad surface and discharged at sea level along the edge of the aquifer; Excessive usage results in the landward migration of the freshwater - saltwater Inter- face and hence, salt water contamination of the water supply. An additional problem arises when contaminated water, for example water containing detergents, is retuned to the ground. A combination of overuse and contamination has occurred on Long Island in New York State, an area with the same geological setting as that of the Cape. There)poor plannilg n the form of lack of recoEnition of the regional aspect of water supply has resulted in replonal water contamlnationo. ecause of the geology of the Cape, what happens in the center effects the edges and so the entire Vater supply. 3'? Cotlwtents on the Massachusetts Coastal Zone Management Program2 Massachusetts Office of Coastal Zone Management. The former I would like to express my views on some of the policies borders New Hampshire and the latter Rhode Island. While and provisions contained in the Massachusetts Coastal Zone activities categorically prohibited within an APR will also Management Program concerning the designation and protection be prohibited outside of the designated area, with the burden of coastal natural areas (i.e., areas supporting rare or unique of proof on the proponent to demonstrate that the proposed biological or geological features, or areas representative of action would not adversely affect the APR, this policy would relatively pristine habitats located within Massachusetts' not apply to actions which originate outside of Massachusetts. coastal zone). Thus if an energy generating facility which discharged thermal The Program's provisions regarding Areas for Preservation effluent were to be sighted in New Hampshire, there would be or Restoration as established in Policy 2, protect only areas no means for requiring consideration of the potential impact of high natural productivity or water quality potential. This of the facility on APRs. Interstate coordination of coastal focus should be expanded to include other types of habitats zone management under Section 309 of the Coastal Zone Management which do not meet the five criteria for "high natural pro- Act is clearly a broad issue which affects many aspects of ductivity" but which are worthy of protection because they are coastal zone management, and not just AWR planning. Policy 2 relatively unmodified by human activity. For example, a rocky should nonetheless address this issue, And should establish intertidal shore which might be valuable for studying the as one of its goals the implementation of interstate coordination processes involved in intertidal zonation would not qualify plans for preservation of natural features. for APR designation under the present wording in the Program. Another issue which is not covered in the Program is the I would suggest that the criteria used to define APRs be ex- relationship of the federal Estuarine Sanctuaries Program to panded to include some means for designating as APRs those APR planning in Massachusetts. The Program should recognize natural features which cannot be described by any SRA type those estuarine areas in Massachusetts which fit the bio- or which do not meet any of the qualifying criteria which geographic classification criteria set out in the federal define APRs. regulations on Estuarine Sanctuary nominations. For example, The Program also. fails' to recognize -several issues which the North River (at one time a tentative nominee) and should be discussed in terms of APR policy. One important issue Barnstable Harbor could qualify as sanctuaries under the Act. concerns the relationship between out-of-state actions and A policy supporting the nomination of these areas should be their impacts on AP'Rs. For example, the Parker River Refuge adopted. If the State does not, at this time, wish to adopt and Wes'tport Harbor have been nominated as APRs by the ,a.policy encouraging the nomination of APRs as Estuarine 3 7d. 3. Sanctuaries, the Estuarine Sanctuaries Program should at least be mentioned in the Program, if for no other reason BL S than public disclosure. sr-o\\ D Finally, the Program does not mention the federal Marine n' Sanctuaries Program and its potential role in coastal zone {tom management in Massachusetts. Does the State have a policy _.~ f Ce, E. I,-%- CI'~i~,?,,:x AC:.HE 4 Trinity Cove regarding the establishment of Marine Sanctuaries within State Vest Harwich 02671 waters? What would the impact of Sanctuary designation be if Sanctuaries were established within or outside of State waters? These issues should be addressed in the Program. The Program should at least note that the Marine Sanctuaries Program can UrsnEvelyn NurphySecretary Ehvironmental Affairs Committee have a significant impact on coastal activities, a point which E roetal falr ommttee was made evident by the proposed George's Bank nomination this Boston,Mass. Dear Madam Secretarys summer. Having read the complete text of your Thank you for allowing me to comment on the Program. Coastal Zone Manaeement Program-all 600 Pages of Volume l,please accept my con- gratulations for a superb Job of research and planning. Arnold L. Lum The proposal to include all of Cape Cod 3 F.R. Lillie Road within the boundary of the plan is absolutely Woods Hole, MA. 02543 correct.-fny attempt to nit.pick the areas of the Cape District is Just so much political Jargon particularly that of Selcetman Haden Grcenhalgh who is already a candidate for the House in this district. As far as the Town of Harulch is concerned the economic problem is local and not one which can be solved by your Department nor by the Cape Cod Planning grpup now reorganizing for the third time without any sign ificallt contributioh to the economic future of the Cape totas. Let's go forward with your 0ZM Program. Best wishes. Sbncerely. Georee E.Lane Sr STATEMENT OF A. DIX LEESON., JR. DEC 7 1977 AT THE JOINT FEDERhL-STATE HEARING ON THE MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM COASTAL ZONE AlAITAGE- om 2 1 effle? diita~AND THE DRAFT FEDERAL ENVIRONMENTAL IMPACT STATEMENT November 22, 1977 December 6, 1977 I am A. Dix Leeson, Jr. and present the statement below with the following perspective. For 3% Years I served as a Recreation Planner for the Metropolitan District Commission. In this position I was concerned with recreational use of important Metropolitan beaches, I reviewed adjacent, private development proposals, explored the acquisition of additional public lands in the proposed coastal zone, and worked with users, town officials, prospective developers, Mr. Eric Van Loon and other M.D.C. staff in establishing and implementing land-use policies for Director of Coastal Zone M1anagement Program recreation facilities in the coastal zone. At the end of this period, my 100 Cambridge Street particular focus was on improving the conservation and recreation use of the 20th Floor Boston Harbor Island State Park. Boston, MA 02202 I feel that Boston Harbor is an excellent example of the diverse mix of Dear Mr. Van L~on: coastal zone uses. Some of these competing uses were represented on a citizens advisory commission which advised the Executive Office of Environmental I was unable to present the attached statement at Affairs on the management of the Harbor Islands State Park. I served as your November ?2 meeting due to the backlog of chairman of this commission. speakers and an un-alterable schedule conflict. As a result, I was invited to sit on the Coastal Zone Management Program's Good luck with the remaining approval processes. Ad Hoc Committee for the Boston Harbor region reviewing the Coastal Zone Management policies. I am aDirector of the Boston Harbor Associates and am Sincerely yours, currently employed by a private, non-profit land conservation group which acquires and otherwise preserves ecologically significant land. The duties and responsibilities connected with the functions I have just A. Dix Leeson, Jr. mentioned have given me first-hand experience with the coastal problems and opportunities addressed by the policies in this Massachusetts Coastal Zone AE)L/jgk Program, particularly the following: Policy 1 - conserving ecoloqically significant resource areas, Policy 5 - minimizing adverse effects of dredging and disposal of dredged material on marine productivity, Policy 10 - acquiring undeveloped hazard prone areas, Policy 13 - encouraging incorporation of visual concerns into planning and design of coastal facilities, Policy 15 - expanding visual access to the coast in urban areas, Policy 21 - improving public access to recreation facilities, Policy 22 - Linking existing coastal recreation sites to each other, Policy 25 - expanding the physical size of existing state or local recreational facilities and Policy 27 - minimizing proposed developments near existing public recreation sites. I endorse the incorporation of these policies into this intergrated coastal zone plan for the purposes of protecting and sensitively developing the Massachusetts coastal zone. I thank you for this opportunity to express my support for this plan. 3;o Conc,. Cottnlruao. Of AN Typo. Cal 205440 COtT.UCTIAd- ENGINEERING Hu te G Thomas W. Joy 20 Yom ,of Expwlc# on ape Cod P.R.O..t... box A P.o. Box 477 2 . EP fcnO Cd Od . ma 3.ms Orleans, Mass. 02653 (617) 255-4600 (Copy of Address made November 17, 1977 to Hearings Officer, NOAA regarding public reaction to proposed Mass. CZM Program) November 26t 1977 November 26, 1977 Secretary Murphy and others: Thank you: I speak tonight on behalf on myself and the Hearings Officer Cape Cod Contractors & Builders Association. Until re- National Oceanic & Atmospheric Administration cently I thought that we, the construction industry, were Attention: Ms. Kathryn Cousins represented in the CZM Citizen Advisory Group, but it Room 3280 doesn't appear so. In November of 1975 we met with the 3300 Whitehaven SLreet, NW Regional CZM coordinator and told them we wanted to be Washington, DC 20235 involved in the decision making process. They assured us that we would be. Re: Proposed CZM Plan Commonwealth of Massachusetts We do not feel that they have made an effort to keep in contact with us and just lately have they begun To whom it may concerns to hear us. Attached please find a copy of the comments I Why are we concerned, Because next to Tourism, made at a public hearing on November 17, 1977 at the Cape we represent Cape Cod's largest industry. The construction Cod Regional Technical High School in Harwicht Mass. business has been here since 1620. regarding the impact of CZM on the small businnessman and his economic surroundings. I request that considerable We do not feel economic considerations have weight be given to the economic impact of the boundries been adequately addressed since it was decided to include in our area beofre any Federal approval of this program all of the Cape in the zone, instead of a coastal strip. is approved. We feel that CZM has no business on inland Cape Very t yyours, Cod. In defference to those who request specific object- _'1 ~~~~~~, vSions: Here they are: 1) We object to Policy 12 which _,VI.~~~~'~ / Mdenies protection of private property unless there are c<~-~ 1V/~~~~~~~~~ xrpublic benefits; we object to Policy 22 which will be ____ ~ ~Fundtion Co. Inc.interpreted to mean any development anywhere on Cape Cod; P rasdent 1 o~Fundation Co., Inc. we object to Policy 35 which is only written for a PhD to understand and addresses the issue of water and sewage Enclosure which are covered under other Federal programs. 2) We strenuously object to the boundries of the Coastal Zone - cc: Evelyn Murphy, EOEA, Mass. we feel it should be restricted to coastal roads, we Sen. Edward i. Kennedy therefore have drawn our own coastal zone map as pre- Sen. Edward Brooke pared by builders, developers and realtors from through- Wep. Gerry btudds out the area and familiar with realistic boundries. We do not accept the idea of inconsistent boundries on a town by town basis. (1) I'd like to point out that inland of our line, we understand there are coastal environs which must be Our group is not against the ideas of CZM, we added. We feel the CZM Program addresses them, but if are against: not, we suggest the Coastal 100 year Flood elevation' which is now a definable boundry, be used. 1. Boundries which are unrealistic; Policies which are not enforceable. iA peripheral road boundry is certainly attainable and we submit this map as our input toward that end. 2. The continued layering of regulation on regulation, and CZM says there will be no new laws, but it will 3. Trend to wrest local zoning away from local set forth regulations and Memoranda of Understandings communities in the name of "good land use". which will further complicate and confuse the local home Good for who? By who? builder, the remodler, their customer, and the people who own property and try to improve it. They will soon be Our group and others of the business community wondering if its future value will appreciate or depreciate. are ready and willing to talk with CZM people about these If segments of private industry had all the interlocking things I have mentioned, if we are asked, and if they agreements or MOU's which EOEA indicates they want, we will listenl would be accused of collusion! But I believe the nut of this whole issue is With respect to keeping all the Cape in this best stated in Section IV-I1 of the EIS which says, "the zone in order to protect the aquifer arid ground water area must not be so extensive that a fair application of quality, there is no question in my mind that the Federal the management program becomes difficult or capricious." 208 Wastewater program, currently in formulation, will adequately handle that (I do serve on the 208 Citizens I personally would join with other true environ- Advisory Board and feel sure of this). So inclusion of mentalists and say let us protect our environment our all Cape Cod for this reason, by CZM, is not really way at our local level to preserve our economic life as necessary and will be adequately addressed under 208 Waste- well as our physical and natural assets. water.Management Program. Thank you. In the Federal EIS, approximately 13 pages are devoted to economic impact. Nowhere does it address the plight of the small businessman (the backbone of our Thomas W. Joy, Orleans, Mass. economy), and how the continued, ever increasing load of state and federal bureaucracy are breaking his back. I served as chairman of a Cape-Wide Joint Com- mittee on Economic Development to look into our sagging Presentation of map of Cape Cod marked in color with economy and increasing unemployment problems of the past proposed coastal zone base on coastal road boundries. few years. During the same time, CZa was doing their homework. Our group was never approached for our input or ideas and how it might affect the economic life of the whole area. I suggest if you must have a CZl boundry which includes inland areas, you owe your working community another review of how it will really affect good economic grow.th. (3) (2) Fred Baver e FOUNTAININLANa ARn nALHEDD, A Gov f617a) w1-12% November 1i, 1977 STATBEENT SUPPORTING TEE MASSACHUSETTS COASTAL ZONE MAFAG3- November 14. 1977 VFNT PROGRAI . SATIT mI SUPPORT OF THE MASSACHUSETTS COASTAL 20hZ Susan 1ystedt, 21 Corant Rd., Marblehead, ases. 01945 (617) 631-1736 PMRAOERAT IPqRtMl I wish to attest to the degree to which the laes. Office of Il support the Massachusetts Coastal Zone Management Coastal Zone PManagement has tried to involve the general Program without reservation. As Chairman of the Marblehead public in the evolvement of the present plan -- from the nextOSS Citizens Advisory Committee on Harbor use, I have original task force which represented osm diverse groups Citizory o tte on bor e have first hand knowledge of the real and present dangers of waterfront urbanization. an overused harbor, and _____________ __ to the a serious Harbor and Waters Management deficiency. regior'al itizens' Advisory Councils. XIn Marblehead. I believe that this Plan would not regional Gitizens' Advisory Councils. I was appointed Seledtman's representative from larbleheat only supplement home rule, but also help to establish to the Lower forth Shore Advisory Council in February 1976, efficient Harbor Management - presently missing frem and have helped identify boundaries and permissible land and our local scene - through the work of geological, water uses in our region and inventory critical areas. The biological and legal advisors available under the plan has had plenty of "grass roots" input. program of community assistance." Frederic M. Bauer Chairman, Marblehead Citizen's Advisory Committee on Harbor Use. a33 TESTIMONY BY REPRESENTATIVE JAMES E. SMITH, November 14, 1977 Public Hearing on _ Massachusetts Coasta! Zone Mansagent :.:r. Eric Van Loon OEC 1 19 MY NAME IS JAMES E. SMIt; I REPRESET NN YRN IN THE GENERAL COURT I Coastal ZonASTA ZOIE ,hNA OffiEeT LIKE TO GO ON RECORD AS SUPPORTING THE MASSACRUSITTS COASTAL MANAGEMENT PRO- GRAM. TrE PROGRAM IS A RBLAiCEGB , NLOOING OUT FOR BOTH ONVIRONMENTAL AND ECONOMIC INTERESTS ALONG THE O;AST. IT ENSURES THAT ~GEEATIONS W0 Cls~ CAN As a private citizen, a lifeguard, E d a volunteer for ENJOY OUR COAST'S NATURAL RESOUIRCES. IT ALSO ASSURES THAT THE POTENTALA OF the Sierra Club, I am urging you to appr .e the Massachusetts Coastal Zone Management Program, OLUR COAST FOR ECONOMIC DEVELOPHENT CAN BE REALIZED. THE PROGRAM WILL RATIONALIZE AND PUT ORDER TO STATE PERMIT'[1NG PROCESSES WITHIN THE COASTAL ZONE AND GEAR It is my job as a lifeguard to work n the coastal zone, EXISTING STATE PROGRAMS TO COMON, MUTUALLY SUPPORTIVE ENDS. There I observe the changes taking place s immer after summer, I BELIEVE THE PRINCIPLES AMD POLICIES ESPOUSED BY THE MASSACHUSETTS CZM quite often accelerated or intiated by man s presence. Our PROGRAM ARE ONES THAT WILL BENEFIT THE DISTRICT I REPRESENT. FOR EXAMPLE, dependence on the coastal zone has already been recognized, LYNN HARBOR HAS BEEN TARGETED BY THE CZM PROGRAM AS AN AREA MERITING SPECIAL By neglecting to establish adequaue safegu rds, damage may be DEVELOPMENT ASSISTANCE, AND I LOOK VORWARD 'm WORKING WITH THE CZM PROGRAM done that. is costly or even irreversible. If we protect these ON THE REVITALIZATION OF LYNN HARBOR. sreas now, less effort will be spent compr urising for our mist, kes This program consists of logical gui elines for tho ranagement of coastal areas. In fact, the limits suggested inpose no threat to business, industry, or the economy. I personally feel the program is much too le tent in most areas, yet I acknowledge is as a good starting po it. I hope the approval of the Coastal Zone Management Pr gram will be the beginning of many such programs in.the sta of Blassachusetts. il ceroly. _ .,? Hel Sayers 16 cl: nville Ave. Apt. Alls pn rf;ass 0213/4 3~L4 s UNIVERSITY OF MASSACHUSETTS 7, 4m AMHERST - BOSTON � WORCESTER Dr. Christopher Martin MARINE STATION ical fashion pointing the way toward more enlightened under- 1IODGKINS COVE standing of the limits of certain resource bases (ie., beaches, X 2. LOUCESVI MASSACUSTTSION9 December 14, 1977 marshes, estuaries and coastal islands) and emphasizing the (617) 281-1930 need to examine alternative choices in their utilization so as to promote maximum benefits both for the present and the future. While accomplishing these ends, the program has not lost sight Ms. Kathryn Cousins, Regional Manager of the economic and social impact of the policies it espouses North Atlantic Region and provides a rational approach to the solution of problems Office of Coastal Zone Management arising from conflicting interests. National Oceanic and Atmospheric Administration Room 3280 From the perspective of the marine research enterprise of 3300 Whitehaven Street, N.W. which I am a part, the CZM plan appears to provide, for the Washington, D.C. 20235 first time, an opportunity for scientists and engineers to focus their collective attention upon some of the crucial problems facing those who must plot the course of community Dear Ms. Cousins: efforts in the coastal zone. Thus, I feel, it will assist concerned scientists and engineers in identifying the prob- I would like to take this opportunity to comment upon the lems of highest priority in the minds of coastal planners. Massachusetts Coastal Zone Management Program as presented Their response can have the dual effect of providing impetus in Volumes I, II and the accompanying Draft Environmental for research directed toward solving problems of immediate Impact Statement. My view of the program derives from my concern to society while promoting professional and scholar- membership in the Upper North Shore Advisory Committee and ly activity in the scientists' own fields of interest. Such from my professional activities as a marine scientist. an interaction can he nothing but beneficial and is certain- lylong overdue. Marine scientists, in general, will welcome As a member of the Upper North Shore Advisory Committee this opportunity to contribute to the CZM program. representing the City of Gloucester it has been my privilege to attend and participate in numerous regional meeting with I conclude by stating my enthusiastic support for the Massa- staff members of the Massachusetts CZM office. These sessions chusetts Coastal Zone Management Program and my hope that were, to my mind, highly successful and have convinced me of its approval and implementation are close at hand. the viability of the concept of citizen participation in plan- ning efforts of this sort. At these meetings, matters of local importance were balanced intelligently with those of Respectfully, regionaland state-wide significance. This resulted in local . I. endorsement of general policy statements and planning concepts Cj ~_ h: as well as a reasoned evaluation of special local problems whose solution was seen to be critical to individual commun- Christopher Martin, Ph.D ities. The Massachusetts CZM Program, as submitted, eloquent- Research Scientist and ly reflects the concerns of diverse groups in coastal commun- Coordinator ities of the North Shore. Member, North Shore CAC In my second capacity, that of marine research scientist (biologist) at the University of Massachusetts, I am, natural- ly involved with many problems of coastal resource utilization. cc. E.E. Van Loon The CZM program has, I believe, effectively documented signif- M. Reynolds icantly large numbersof scientific and technical areas which demand rigorous attention. This should result in a new and promising awareness of the critical nature of most coastal resources whose neglect in the past has led to serious degra- dation of some of the regions most attractive natural features. The program statement addresses these issues in clear and log- December 2, 1977 Although the entire Plan deserves careful attention by all of us. there are several aspects of it that I would like My name is Ken Robinson. I am a resident of Jamaica to comment upon. As a future lawyer I am quite impressed by Plain. Presently I am also a law student at N'ortheastern a program for our entire coast line -that requires no new leglsl ion University School of Law. for Implementation. This says much about the foresight of Having grown up near the Atlantic Ocean all my life, I our legislators and those who have worked with them to create am very concerned for the coastal areas that provide me and the backbone of the CZM Plan. the laws which will become the backbone of the CZM Plan. many others with a variety of recereatlonal, aesthetic and However, I do foresee a few sources of difficulty. One is cultural opportunities. I have reviewed the Massachusetts the Program!s enforcablity. Although I understand and agree Coastal Zone Management (CZM) Plan and the draft environmental with the rationale for delaying implementation of the CZM impact statement (DEIS) to understand what actions are being regulations until the Plan is adopted, I do urge Secretary undertaken that would have tremendous impact upon these Murphy to maintain strict adherence to the proposed schedule for coastal areas. adoption of the 21A regulations. I also wish to encourage the After careful reading, I believe the present CZM plan Is an various FOEA agencies, particularly those with cognizance over excellent beginning. And it should be adopted by Massachusetts. Ocean Sanctuaries, Coastal Wetlands and Energy Development to exp ditiou The 38 policies statedln the Plan have carefully balanced adopt the necessary regulations. Delay will assuredly be haz- environmental and economic goals. If the Plan does tip the ardous to the health of both the Plan and the coast. scales ever so slightly toward environmental/natural values, it A related problem is the binding nature of the Memoranda of does so only out of the profound rn''~-^ "' that the ~Massachusetts Understanding between the Executive Office of Environmental coast has undergone such intense, and unquided development in the Affairs and the Energy Facilities Siting Council and other a past. that future uses must proceed at/more orderly and wiser pace. state bodies. I agree with their content. I am concerned The most prudent policy is thus represented by a careful Of their future in light of certain in court and out of not planning approach. It should/be designed to prevent all growth, court challenges. nor to allow as much development as current plans would entail. Also, how will the Plan operate where no State permit Rather, it must understand that there is only.so much coastline, is required? The Plan wisely leaves many of the choices that there are and will be competing and incompatible demands for concerning usage of the coastal zone to the individual coastal its usage, and the CZM Plan must determine within a given set communities. Many impacts upon the coast will be very localized of criteria what the best uses of our coastal areas are. Such in nature--a retaurant, a parking lot, community real estate However a policy is the one espoused by the present Massachusetts CZM program. development that discourages public access. /it is one thing to have a state-wide plan. It is quite another to ensure the accepts ce of its guidelines and policies by the many coastal cities and bpera where will the final decision actually lie? and What towns, This will be especially true when local economic factors will really be considered In formulating that decision? towns, This will be especially true when local economic Finally, there is a proposal afoot to give the head of needs conflit with statewide requirements or desires. This the Department of Energy a veto power over all energy decisions problem will become particularly acute if the resources are involving the costal zone. I find this proposal distasteful not available to ,ssure that competent personnel and reliable and hope that it remains only the germ of an idea. Such a information are available at both the state and local level voncept runs counter to the purpose of carefully creating a to assure compliance with the CZM policies, purposes and many comprehensive coastal zone management. At present, the statutues desglned to carry forth the program. I thus urge the veto power lies within the Department of Commerce. I personally state and federal government to ensure that adequate funding would much rather trust the Secretary of Commerce,who has res- and personnel will be available/tor these purposes. ponslbflty over the state CZM policies, with declslon-rnaklng in In the area of Energy Development several points need to be the area of the coastal zone and energy development. In stark raised. I am very happy to see the addition of Policy 33 encour- contrast, the Department of Energy's responslbility is geared aging energy conservation and the utilization of alternative more toward energy development than toward responsible energy sources. Policy 33 will both enhance the value of coastal management. coastal areas -as a major source of alternative energy forms while concurrently reducing the dependence of the Commonwealth My last topic of discussion is that of public access. I upon coastally destructive energy technologies. wish to commend Secretary Murphy for the July 29th Memorandum The CZM Plan also speaks of locating electric generating Concerning Shorefront Accessplanning. As one person without facilities in non-czm sites. However, nuclear power plants a car, I am strongly supportive of most policies and plans that LNG facilities, oil tanker ports all reulre deep ann plentiful encourage, develop and enhance Increased access to coastal areas waters. I question what real alternatives are available ana how oy non-automotive menas. they will developed. Also, what methods will be adopted to Policies 21 and 22 establishing a procedure to support the encourage utilization of these sites once they are developed. planning and funding of non-automotive transportation alternatives A word about LNG facilities. Apparently the federal should receive wide applause. Particularly important to me and Jamaica Plain residents government though the FPC. the Coast Guard and OPSO have the other /are both the ability to travel to such areas as Cape final approval over the siting of LNG facilities. However, since Cod, marthas Vineyard, Plum Island and lesser known and used such facilities are usually within the coastal zone, the federal beach areas and the'opportunity to travel within these areas. authorities must abide by the CZM Plan policies. If Massachusetts Related to the public access question are policies 13 does formally delineate particular locales as sutiable for LNG through 16 encouraging visual access. The few times I have been to the coast in Vassachusetts I found it a very beutiful sight. Together with the many light houses,whaling homes, well-designed sea side "shanties" the sea shore in the Commonwealth December 2, 1977 7q Jamaicaway is qutie unique. Several months ago I visited Montreal-- 70 Jamaicawa0 Boston, MA 02130 a very beautiful city with one common problem. Large segments of a spectaculr shoreline are obliterated from view by huge Office of Coastal Zone Management State Programs structures of many shapes and sizes. Whl le some undoubtedly National Oceanic and Atmospheric Administration require a seaside location, certainly others do not. According fain Commerce Building 14th and Constitution to the law, the waters and large segments of the coast belong Room 5807 Washington, D. C. to all of use as citizens of the Commonwealth. This "ownership" should lnclusde visual as well as physical title. re- Massachusetts Co astal Zone Ifanagement ~Dear Sir/~adam. Plan and Dr aft EIS Dear Sir/Madam. I thank The Executive Office of Envirommental Affairs and Enclosed please find one copy of mv written comments on the the State and Federal CZM Offices for the opportunity to present Massachusetts Coastal Zone Management Plan and t e Draft Environmental one resident's viewpoint here today. I look forward to working Impact Statement. On November 22 of this year I Dresented these views with the many governmental and private parties involved in the orally at the Boston Dublic hearing. I believe he Plan is an excellent effort to adopt and irlmiment this CZV Plan. start and should be immediately adopted andimple ented. I look forward to working with state, federal and Driva e parties in furtherance of these goals. November 22, '1977 ~~November 22,'~1977 ~Thank you again for the opportunity to present my views on the Massachusetts Plan and the Draft EIS. I look for ward also to revie wing the vinal EIS. Very trul yours,; .enneth L. Robinson 14 December 1977 P 0 B ox 185 We certainly are not eager to lose our property, especially since we built hoping to retire to the area. But we do not wish to be engulfed in hordes of people, or subject to C rcL of Coastal Zone Management m' vandalism and break-ins such as are now a common occurance. There must be some National Oceanic and Atmospheric Administration compromise that might safeguard public and private interests as well as preserve in per- Att: Ms Kathryn Cousins petuity the unique and fragile barrier beach and adjacent marsh areas. Rms 3280 Sincerely 330 Whitehaven Street N W Washington D C 20235 Dear Ms Cousins, Having read the "State of MNss. Coastal Management Draft Environmental Impact State- Nancy F Jackson ment", We have come to some definite conclusions as concerned property owners on Gurnet George A Jackson Point, Flymouth, Mass. P O Box 185 Among the 38 policies adopt-d by the Mass. C Z N we are concerned specifically with North Stonington, Conn. 06359 # 25, # 27 and # 26. # 25 the area is much too fragile to allow expansion of the existing local recreation facilities on Duxbury Beach. # 27 Any new development on Duxbury Beach, Plum Hills Beach or Saquish Beach is com- pletely unrealistic because of the limited, almost non-existant back area for these beaches. # 26 Proposes local acquisition of Saquish Beach which is the #18 area in policy 26. ''thout reservation we feel that this would be a complete disaster. The Town of Plymouth now cannot afford police protection for its year around and summer residents. They only promise us help in the event of "rape, murder or riot". If the area is to be preserved at all it will have to be under the protection and control of something more responsible, the Federal Government? Perhaps as a separate area of the Cape Cod National Seashore. We believe this may be the only way to really protect all of Flymouth Bay and the three towns of Duxbury, Kingston and Plymouth and the area for contr- olled public use. We do not wish to belittle the work of the Duxbury Conservation Commission and the Duxbury Beach Reservation in their furtherance of conservation and protection of the area. But the money is apparently simply not available to supply sufficient daily super- vision. It must be protected throughout the year, if this protection is to accomplish anything. There is no longer a "summer season and an off season". The area is vulnerable and accessible twelve months of the year to everyone with 4-wheel drive vehicles; only a small proportion of these people respect or understand the fragility of this or any other barrier beach. In passing it should be pointed out that in the four and a half miles of beach and dunes (these latter not respected now even tho they are fenced and posted as Conservation Areas) there is not one sanitary facility beyond the north end of the beach. Draw your own conclusions. A Is UI K - V[,ICATIIONAI ~ -.'..% ' q /'? Iestimony of RICHARD PRESTO fFOUNPAIION ,,% I,",/ ,4,k .\. '": ...... November 4, 977 66 RAILROAD AVENUE. Box 474, SouTH HAMILTON,. MASSACHUSETTS - 01982 TELEPHONE: (617) 468-7361 Testimony of Richard Preston, Member of The Govern r's Coastal Zone T sk Force and of its Public Participation Sub-Committe presented to the ublic November 4, 1977 Hearing on November 22, 1977 held in Boston, Massa husetts wider the egis of the United States Department of Commerce, Natio al Oceanic and Atmospheric Administration, Office of Coastal Zone Management. Hr. Chairman, I am pleased to have this opportunit to present my pers!nal view upon both the Massachusetts Coastal Zone Management Plan (Draft) and Mr. Eric F. Van Loon, Director the Coastal Mlanagement Draft Environmental Impact tatement. Coastal Zone Management Executive Office of Environmecntal Affairs My name is Richard Preston, a legal resident of Hlas achusetts (llamilton) 100 Calmbriidge Street who was appointed to the Coastal Zone Task Force (s -called) in 1973 b CamBostonrd M 02202 the then Governor Francis Sargent and re-appointed Governor Mlichael Dukakis in 1976. I am a Certified Industrial Devel per and my curricu um Dear FMr. Van 1.01oo: vitae includes five years as Commissioner of Commerce, Massachusetts Department of Commerce, two years as Executive lire tor, New Hampshire State I shall be away durilng all of the scheduled five hearings on the Planning and Development Commission, Economic Devel pment advisor to t e D.E. . S. and would like to go on the record in favor of the CZMI Government of the Belgians, thirteen years as Execu ive Vice President of plan for Massachusetts generally and against that spiteful piece the American Industrial Dcvelopment Council (The In ernational Society of of so-called legislation, IIR 6687. I do not formally mention that Practitioners), author, editor and lecturer on indutrial development d, in my encilosed statement. presently, the President of the AIDC Educational Fo idation. I would appreciate your submitting it "in support" at the November I am, therefore, deeply concerned with the impact o the proposed Coas al 22nd Public lHearing or at any of the prior hearings as you may Zone Management Plan upon the economic development f this Commonwcalt see fit . ....i I am in favor of the plan and believe that it will nhance economic de lop- Keep up t-he good work'and mly regards to Madam Secretary. meant generally and the sphere of industrial develops ent particularly. Sincerely, In the first place, the plan defends with logic and rectitude the limit d coastal areas of the state. It endeavors to meet tle socio-economic an the environmental demands upon our coastal resoulrces. Clearly something mu t 1be done to protect and delimit. The plan is that someoting. Furthermore, it Riclhard Preston is not an imposed something. It represents input from concerned public leaders and citizenry gleanced from many lengthy and often n ated meetings in t e RP':lmad various coastal regions. I realize, of course, that such meetings were often parcely attended. Such cc: Mr. Kaufman is the character of our people that they want their oices to be heard, but Mrs. Pegan satisfied Iith the opportuni.ty, they all too often s mply do not put in an appearance. Fortunately, as the first draft policice become known, pub ic participation increased as the many policy changes aid modifications at cst. The net result is a "good plan" which can and will b . modified through e input of the local, affected citizenry. fi.. e plan coltliln!; Igto remarkable characteristics vhi nll shlould e'cll appe I to those who argue against more laws and reg'ilatory bodies. 330 Novembe~r 1.5, 1977 1YMfI%2IY OF R. - DU~UM OF WMAUP ELECMRC Ca4PAW~ -2- F ~ 3 2 N N~~ The plan doeS not call for new legislation. It simply endeavor to give now Ti nam is Robert as Vnie an Ptl adess is en 687 Generlt life to existing laws. By the same token, it endeavors to systematize Street, Swxseset, ?iassachusetts.IamelydasVcPrien dGnrl issuance of permits by coming closer to the ideal of a "one stop permit ~ ~tu ~ci oay neetic generating and traxismitting agency". aerbth-tnttPEeti laalaecT In both approaches, it is obviously a boon to the industrial developer who Uihfnsa lcrct otefl ie lcrcLgtCVn' qe isarlein oa' oitya achieving growth with environmental Ddtndio cupay'aztnixiialLgtgPlant and leiddlebormugh Tepanadvpocaess industrieintoeaasalrmd developmedt Winhecnxto muactuimite Electric Department in lMassachusett's Bad to the BlacksteVaeYEcri Tepand pdvocaess industrieintoeaasalred developmed. Winthe aotx ofiminfaturin coast line, it is logical to locate new industrial facilities inland unless CMVpay, the Pascoag Fire District Electric Departmn~t. the Tiverton D)ivisiofl pressing circumstances require a coastal location in which case there is 21% of the coastal zone inmmediately suitable for development (D.E.I.S. 111-4). of fth Narragansett Electric Companyv and the 1eoport Electric Crporatimn The plan leaves much to local initiative. It is neither a federal nor state :In jearby Rhode Island. These distribution comanie's serve over 600,000 monolithic plan imposing land use -regulations willy-nilly upon our coastal rfsoaEnierndaRite ad communities. Naturally, Prnec adopted there will be a rigity in certain pro- Iepe T. also a Pgsee visions, but it may be observed that this condition now pertains. The CM~ epe eitrdPoesoliRgne n eitrdln plan but emphasizesa them. SurVeyor in the coammunealth of Vmasachusetts. There is much more to be said for the proposed plan and for the Electic oan ndis.Mlrcmais-teBoko suffice it to note that developers are, today and for the future, oriented jbgu Mota~pEeticCxayadisonrcupaiB-tePoto to the requirements of both environments, the natural and the socie-economic. eivthtsm It is axiomatic that they must be developed together. Wherein a space has EcISon Cosjany and the Fall River Electric UJzft COMIM'aY -eiv htse natural limit-; as does our coastline, there must be certain controls to ae ert,1ttathepeetlpoosed coastal 70ne assure that capital invested In development will yield a competitive prof-it pars of the Plan aeertbtththepentyPrP to the economy and a coarnenserate profit to the environment. 1, therefore, urge Federal approval of the Massachusetts Coastal Zone naaetroamsalndsectrlpgamdoedithtlgilt'J Management Plan as sub.mitted in the proposal with such modi fications as are pprv'IM wi~hch will adversely affect every person in Massachusetts. desirable, but fill not alter the substance of the policices and conditions set forth therein (Chapter It of the Coastal Management Draft unvirojnmental 'bodie Impact Statement). The landj areas to be controlled eactend far Me ounares / ~~~~~~~~~that affect the coastal zone. For eamplre, over 957 of the inuaria1 commercially zoned land and ave third Of the residential proPerty in Sceset are included it, the Coastal Zone. The boundaries alsoinleth Scueset T.w Of fice and grounds of the P1olice Station and the High School, muom of ~*ich land is 80 feet above mean Sea lv.Have the people of 8,,erset, the town officials or the Kassachjsett:s legislators in this area been apprised of these facts? Have they also been told that the Secretary 02 wlrqA-MMI~ Affe-ITS ' W2M ~a wtfl POW~Z VW all wa9jtr thaveulOyfS'cs DEPARTMENT OF lIHE ARMY or p~biAL eso-eice invastmmant in theYom Zcr-V liae l tha-t they haven't. T~ls NEW ENGLAND OlV#SION,% coRPS Of?. e550155555 ise a goass isweeion by the CueD eeeath xInto 'oca! Jurisdiction that thre WA.4M,1ASSACHIISSTTS 021!s1 puIbl in huld nMt accept. ATTERPD. 29 NOyotr:~ Ciw carpmanies axe vitlly cncerrned with thi. vcogram as we Mwv a n~n~biiey t imeti 132 rowmg derAn few electric energy for lindustrml r.hwrS.rteidal cramercial and resiilential purpnses. Policies 1,2,3,17 and 31 should be pl- ate z Ste rereito pan-dt am o-rderly dWeFMt of Pcstu plaits with' ressorablh lioir aecaeu 20 oral eeon - e envirmnnntal -tuanfds ietrnth osa zn.Tecoastal Dear Mr.IT, ritoojrls 7Z-se MEr~menat Program Interferes wxith the initions of the Therg Facilities ThI's Is In reply to yrour le-tter of 14 November 1977 readngh asseehnettoCastal Zone MaaeetPora rpslo Sitig Oitfl 13t wa asrahlisadm to isiisrias agency overlaps aid to ei"edte mhamotpge46oVlnn oftir Se17 eogram Ti proposal th mprval of reneration mand tkeamisin construction to meet thea ~ T~~ntalP beepuchse woul 5eeseet yte ~s ehue Dear'SIMnen eofmn terLYna thaaeet throughuyugpoertt of r a rea, Failure- to rerise~ thin proposed prograM to recoqrdze the need end'smo&jnca th'onrf or ughclndacs you Stonery aond Dnbll lat h nd a c esto Cod anal for end to allo mar gemertinxg plants to be btdAlt ,tifl be. catastrophic for thze 16, repos to yCam 5pal iqryConeaingeeal. tt ecnnnsw of Ilaseotuis~etma Viae m Lfln r tin vation will 1*2 corlesn nth~e StonyPintfir rOie1orofc a o bean consl ro'regardingOun office Fain rpsl hat notl facing power crsf orn d e rattioning in the 1q980, S. Tha Merv -requfred for entailhg - pof sible"18 Corpsaj perticlpaat tuaas'rps waTpssions win not he available and there wi-fl be greater uneiploysmit.Thtw rysoybaceononahaieftedkeaent specIf"callY autborlzed as public reoreAtione beeches. W1e are 'This plan will accentuate rinse ~~~~~~~~~~~aware that aprnin~y50 boats mayv Visit these beach areas on a good sruanner day.. TO date, t"ese visitors have not abused their, The Mtatup Eetric tbrpra requests that the Proposed Program U s o f t e raadnlcnlsaf ,3,* ontatined In over 600 pages of repetiticus, confiscatory, controvrsial an hig time area.. confusing Ideas hichd have not heat ecortidcally justifiedand twhich areno During the early l9?0,s, provislon of public land acs otedk wasrevewe byour Waltham staff daring the preparation of our In the- public interest be withdratan. A new amplified progran affecting October 1975S Master Plan -for the development of the recreational only, the truly coastal zones, 'idth input frcem the bsinesses, amuicipalities -resources of the Cape Cod C'anal project area. This plan was co- ordin~ated with the Mas'sachusetts Division Of Forests and Parks, and yroperty amers In ties controlle d a r e ~ ~ ~ ~ ~ ~~asssol ep~rd b u l f e ~ 18achusetts Division of -Fisheries and Gains, Bureau of fbftdoor end p opert cene s in im co txofl ci ar as si ild i p ar d by ualif ed Iecreationl, and ?'bh and Wildlife Serv~c ~, Pmhhc land access to plannes. This has to be tim firfl conclusjm of these hearings or "Go save 2ICHARDn BAWNCrr~ Putnam. Bell & Russell Attorneys at Law N1V11LV B ~c. CIIG F 53 Stalie Street N E.D PL-L 29 November 1977 HOWARU S. YM"M;1V- Boston. massadhusetts 02109 1.r. Howard S. Whiteside ALLAM El. ROW413ERG (617) 723-3131 ToHN C. VAN rdtm~ CAbI#~ Puttesham 1HN c. iSERM. AtEXANtXR W!-tTMMO! 9 90511050. VERNAGaA, MK the dIke was dommed Inappropriate bacauose ol tile lonig access RORERT MI. SIRWARTZ through privat- property and more particularly because of the lieek RONALD L "AROM~ November 14, 1977 of parking and waste treatmentn opportunttiaz~ The southern end of the dike to under water at high tide conditions and is comnpleteliy awash during '-oaqtal storm condition*. In view of thb AlmitedConeJhnhadr recreational potential of the dike area beyond Its existing boater- Divisonl Eongihneer access uses, we believe that no Pederal funds should be a-.xpnded DNesio EngladDineer , Corps Of Engineers for ea.-cpansion DE kgcreational ",e of the dike. The prime purpose 424 Trape!o Road of the clike is to protect the southern navi4wftonal sxpproach to the Waltham, Massachusetts 02154 canal. ~~~~~~~~~~~~~~~~~~~~Re. Stoney Point Dike/Stony Point Dike Inclosed are tw.o maps grom the 1975 Ckap Cod CantAl Mvaster PMan Wrhls ascuet design memnorandum. There in no discussion of the Stony Point Dear Colonel Chandler: Dike area in that report an the area wan 4aliminated for possible inclusion In the plan. Discussion is limitd to the 10 ares!- noted I am writing to you at the suggestion of Mr. Frank Cicconi in tire inclosed Schematic Recreation Plean An a matter of interest, with respect to the proposal in the Massachusette. Coastal Zone t~m.F'rak (rancs) iccoe o ourWalham ffie istrasferingManagement Program that an unlimited access be provided to the 1r.FakFrci)Coneo Sournlhmofc srnfrigey Point Dike, which is a part of the Cape Cod Canal shore- on5 December to becoint Englneer-in-Charge,~ Cape Cod Canl. lione aae n anandb h op of Engineers.. Sincerely years" I am the owner of land on Cedar Point and, together with all other landowners at the locus of the proposed access, am strongly opposed to the proposal, which I consider poorly con- ceived and, if effectuated, likely to have severe and irreparable Incl 100EPH L. IGNAZIO adverse consequences to the environment of the locus and the as stated Chief, PlanniXI5 l1ivsiolo health and safety of those who would use the dike. CE: ~~~~~~~~~~~~~~~~~~~The Massachusetts Coastal Zone Management Program was pre- CF: ~~~~~~~~~~~~~~~~~pared under a federal grant by the state; it is contained in two 'Kathryn Cst volumes which present the proposals of the program's staff, which office of Coastal Zone 1.1gmt. are now undergoing review at both the state and federal level to 3300 VWldtehj-nfen St., Ni.AY. insure that the particular projects are conceptually sound, It Washington, 1). C. 20235 ~~~~~~~is my understanding that the Corps of Engineers has been provided Waahington, D. C. 20235 ~ ~ ~ ~ ~ ~ ~with these two volumes together with a Draft Environmental Impact hr. Eric Van Loon, Director ~~~~~~Statement (issued during October of 1977) but was not consulted iArs, rCo'asta LZon, iecgtor during the planning process which resulted in the reccismendation 7 laa. Coastal Zone hfgmt. ~ ~ ~ ~ ~ ~that the state acquire a vehicular access in order for the dike 100 Cambridge Street to undergo unlimited recreational use. Boeston, M.atisachusetts 02202 Presently the dike has no land access open to the public but is reached by a private dirt road, which the corps has per- mission to use for necessary maintenance and protection activities. 2. 33 Putnam, Bell & Russell - 2 - November 14, 1977 This arrangement between the Corps and the landowners has been in effect since the dike was built and is, I believe, satisfac- tory to all the parties concerned. During this period the Corps has permitted the dike to be used by recreational boaters who arrive by sea from the numerous nearby harbors and launching sites to picnic on the beach below the stone rip-rap constructed I 4 by the Corps to prevent the dike from washing away. This use on \ a good summer day uses almost all the beach available at high , 7. r'i-'F tide, and the boaters in general have been responsible and have \- I & not abused the privilege of this use as well as have been aware . of the dangers of the nearby canal channel. , - Since the dike is under the control and management of the _l' Corps, any change in the use of the dike, especially one which :i ;. might funnel hundreds of automobiles, motorcycles, and campers per day onto it, should be subject to approval of the Corps,and A!-: ' Fe:a I am surprised that the current proposal apparently has not been . so cleared by the state authorities, who do not seem to have . given adequate attention to the many problems involved, such as: n 1) The lack of any water and of waste and garbage disposal ! Sii!!i facilities. \ , 2) The traffic hazards increased traffic on Great Neck -i Road would cause. 3) The damage to bird nesting areas and shellfish areas \ on the dike. .= i: .: 4) The lack of parking space on the dike and the damage ' : -: that vehicles and large numbers of people would cause the vegeta- ! ~ P " \ I, tion which currently slows erosion and permits bird nesting. \ 5) The lack of a plan to provide lifeguards or a life- \ :':' saving program in an area of considerable danger to those un- ID::.-..; .i -,,. acquainted with the sea. I 'i, C "' 6) The lack of a plan to control traffic and to prevent disturbances and unauthorized dumping on the dike. :-'/' " s'/' + "4 1- 7) The lack of adequate sand area at high tide and the ' ., / hazards of crossing the rip-rap to reach the beach which is a- I vailable.' / . I should appreciate your advice regarding whether the state. ,- has addressed these concerns with the Corps and, if my informa- i tion that it has failed to do so is correct, I urge that you or the appropriate federal authority review the matter. I believe __ f . > that careful analysis of this particular proposal would prove it A- to be unsound and inadvisable and that this conclusion should be made clear to the reviewers of the proposal in order to prevent t'i /r the ruination of a valuable natural resource, which currently is o being so'ndly used and managed. !Id | --%- Very truly yours,' I-i i ~4t4].! " I i F �EK Howard S. Whiteside ]l! ~ %I I HSW/r i cc: Office of Coastal Zone Management Mass. Office of Environmental Affairs I I!_at All ENVIRONMENTAL REVIEW OF THE CZM PROPOSAL FOR LONG BEACH, WAREHAM Page I. Origin of the Long Beach Proposal 1 II. Who Owns Long Beach? 3 III. Is There a Need for Additional Public Beaches in Wareham? 5 IV. The Limited Possibilities of Long Beach V. Long Beach and its Environs - a Fragile Area 7 VI. Shellfish Grants and Aquaculture 8 VII. Costs of the Long Beach Project 9 I. Origin of the Long Beach Proposal CZM made a public distribution of a questionnaire in which reference was made to a possible project at Long Beach and asked for comments. In spite of the this project which certainly deserves a feasibility study. The Association might be able to assist In large mailing only 6 comments on the Long Beach project stdTeAsclaifiation migh the title to asithbec Indi were nade. We understand that several of these clarification of the title to the beach and In answers commented that there was adequate access to negotiation to provide a limited access over private the beach by water and that there was no need for land for construction equipment and personnel. public access by land. Public use of the beach by the small boats using the Wareham River is already oxtenslve. Adding the users who would come by public land access would seriously overload the very small area which remains above high tide. The very small response to the CZM.request for comments shows that there is no groundswell of support either in Wareham or in the surrounding towns. The Long Beach locus may have been included in the questionnaire, because of a different problem which can be solved without establishing permanent public access by land. In the 1890's, Long Beach was a flat peninsula used for farming purposes and contained a barn. This peninsula provided breakwater protection for the extensive and important anchorage at the mouth of the Wareham River. By 1920, erosion had reduced this peninsula to a beach which was largely above normal high tide and still provided protection to the anchorage. Beginning with the 1938 hurricane and continued by more recent storms, further erosion has reduced the beach so that today there is only one small section at the eastern end which is above normal high tide. In 1963, the owners of the beach together with several abuttors restored the high level of the east end of the beach. Throughout these negotiations, the Town clearly recognized the Ayer estate as the owners of this eastern end of Long Beach, the only portion now above mean high tide. During the 1940's, 1950's and 1960's erosion continued until today the beach except at low water provides no protection to the Wareham River anchorage. The unmarked flats and the unmarked pile of rocks at the west end of the beach constitute navigational hazards except at low water when they are visible. Some years ago, there was a proposal to place riprap to stabilize the beach. Nothing was done, however, and erosion has continued. What is needed today is probab. more on the order of a low breakwater rather than simpl riprap., The Landowners Association would favor a revival of -1- -2- '33' II. Who Owns Long Beach? Item 28, page 146 of Vol. II of the CZM report Is in error in stating that Long Beach is town-owned the Long Beach proposal have for assertives that the land. Plate 40 compounds this error by also beach is in public ownership. 'Apparently they made designating as public beach the Wareham River shore a presumption that the beach was public, then checked of Goat Island the Indian Neck shore east of Long the assessors maps,.. Since these maps show no property Beach for almost 3/4's of a mile. This indication lines below the foot of the upland they assumed their would have been approximately correct in 1939. How- presumption proven in spite of the note carried on the ever, in the early 1940's nature reopened a small assessors plans "These plans are for assessment pur- channel at the base of Goat Island connecting the poses only - Do not use for writing deeds." lago,)n with the Wareham River north of the beach. A presumption may have developed over the years that The Hew England River Basins Commission Map Atlas 1977 Long Beach is public, meaning that area which lies (CZM staff might have checked this source material) westerly of the saltwater lagoon, because while contelins a sheet entitled "Coastal Beaches and Owner- the owners have done what they could to prohibit ship and Coastal Uses". This sheet identifies most public use of the private road and trespass on their of the beaches on the west shore of Buzzards Bay and upland, they have permitted free use of the westerly classifies each area as to ownership. The entire part of the beach by those who come by water. We know, shore front from Crooked River to Warren's Point however, of no action ever taken to make Long Beach including the spit of Long Beach is all designated public, no public taking, no gift or sale of it to private. public authority. Title, therefore must still reside in the owners of the adjoining upland. Since colonial days, shore titles in Wareham have run to mean low water. Intertidal areas are private land subject, however, to navigation when the tide is In and to "Fishing and Fowling" at any time. Long Beach, in the 1890's was a peninsula of flat farmed land. Erosion has wholly changed the area, so that very little of it is now above mean high water. Where erosion has lowered the area below mean low water, nature's action has made that part public, but the intertidal area remains private. While the entire beach in 1920 was appurtenant to what is now Ayer estate land, the private titles may have been changed by nature's action. What now remains of Long Beach has been moved up river a significant number of feet. In the process the move may have added to the intertidal land of David Dawkins. In 1963, work was done by the Ayer family, owners of the beach assisted by several abuttors to restore the high level of the east end of the beach lying between the saltwater lagoon and the bay shore. The Conservation Commission and other Wareham authorities reviewed the project. An order of conditions was Issued and the planned work modified to conform. Throughout the negotiations and in the issuance of the 6rder of conditions the Town clearly recognized the Ayer estate title to the eastern end of the beach, the only section now above mean high water. ~e have attempted to learn what basis the propcnet-s -3- 3?,,~~~~~~~~~~~~_; III. Is There a Need for Additional Public Beaches in Warehar IV. The Limited Possibilities of Long Beac The Town of Wareham is today well-endowed with public Ignoring the problems of public land access, assume for beaches which appear to meet the needs of the local the moment that Long Beach has been taken fcr recreation area. The Town has more miles of public beach and purposes. What are Its possibilities? more public beach sites than any town on the west This spit of land is 700 yards long. At lo wer, t shore Of Buzzards Bay. ~~~~~~~This spit or land is 700 yards long. At lo~ w~:ter, it shore of Buzzards Bay. offers 700 yards of coarse loose sand on the riverside Hew England River Basins Commission with a slope attractive for swimming. On tie bay side, Map Atlas 1977 however, the surface is exposed hardpan, moist clay with Water and Land Resources O Southeastern New England many small rocks. The surface is unattractive for beach- Water and Land Resources of Southeastern New Englandinadthflsexndnirytofrotfr ing and the flats extend entirely too far out for This atlas identifies the beaches in the 7 towns on swimmers. the west shore of Buzzards Bay classifying them by t own e rship. Wareham has more sites and movae mles iAt high tide, the beach is reduced to a narrow tongue Of town-owned beach open to the public than any s o of stoney sand between the bay flats and the tidal lagoon. of town-owned beach open to the public than any ofSimigtopsblisntarcivonitesd. the seven towns exceeding even Westport which has Swmng th possible s not attractive on eter side. 1.4 miles of state-owned beach. There appears to be little need or demand for additional public beach. Could the beach be improved? It would be a simple matter to dredge sand from the river to raise the beach. The sand might stay through the next major store btt certain- The following information is tabulated from information sand might stay through t he next m ajor stor bt certa n- given on the map entitled "Coastal Beaches and Owner- ly not through two storms,-or the next hurricae. ship and Coastal Uses". Could RipRap be placed on both sides with sand pumped between? This seems a possibility and might lsst for Owned by Towtn City State U.S.Gov't. Private Totals many years. However, the riprap would narrow the beach miles site miles sites miles sites miles sites available at low water and would not provide ary beach at high water. Wareham 3.1' 7 4.0 1 4.1 8 11.2 16 Westport 2.8 3 .4 1 3.2 4 A quick look at a map would lead one to assume that 700 Dartmouth 1.5 2 2.1 2 3.6 4 yards of spit would provide 1400 yards of swimsable beach. Mattapoisett .6 2 1.1 4 1.7 6 This however is a spit which can be Judged only after a lew Pedford . .6 2 0 0 6 2 series of field trips made at differing levels of tide. Fairhaven .3 1 1.6 3 1.9 4 The view from a planner's drafting room can be totally Marion 0 0 .7 4 .7 4 misleading *The atlas figure for Wareham town-owned beach is 2.8 miles which has been increased by .3 miles through the gift of an addition to the Little Harbor Beach. -5--- .335- V. Long Beach and its Environs - a Fragile Area VI. Shellfish Grants and Aquaculture This small section is one of the most important wildlife For the last few years, Long Beach has been the most areas left in the entire Town of Wareham. It remains productive area in Wareham for scallops. Scalloperb have important because the land is genprally hold In acreage come legally by water and illegally by trespass over the parcels, the houses are few and well-separated, the private road and house lots adjoining the beach. The woodland and marshes are managed more by nature than by problems for the Wareham shellfish officer, the Wareham man. Even the shore is relatively natural with little police and the landowners have been intolerable. The impac' from human artifacts. flats have been over-fished. Provision of legal access by land would quickly lead to such severe overfishing 1/4 mile east of Long Beach are two small fresh water that the productivity of the area would be wiped out. ponds heavily used by waterfowl. The likely route for the proposed access road would require filling of Shellfish grants were established shortly after 1900. important wetland appurtenant to these ponds. The justification of leasing public flats to private individuals wasbased on conservation of shellfish. Between Long Beach and Crooked River, the Wareham River Lessees are required to "farm" the grants in return shore is indented with several shallow inlets leading for which work they get the exclusive right to reap the to sizeable stretches of brackish and saltwater marsh. harvest. However, the spat of all shellfish float with The importance of these marshes to resident and migratory the tide before settling to the bottom. A considerable birds is obvious. For several years Hudsonian curlews portion of the spat propagated on a grant migrates to have been noted. Other species include the semipalmated other areas open to the public. The public therefore is plover, yellow legs and the black-bellied plover. also the gainer. This was the justification for leasing private rights in public waters. Substitution of a paved highway in a 50 ft. cleared right of way for the narrow twisting gravel road serving Consideration should be given to establishing shellfish several houses will lead to severe impaction on the or aquaculture grants at Long Beach as a conservation ecologrie value of this now very private area. measure to prevent overfishing and correct the present situation. Long Beach today receives considerable beach use when the tide is below mid point. The users come by small power and sailboats and delight in this beach. To provide lan,: access will overcrowd the beach and destroy its present important function. Control of illegal shellfishing in the scalloping season has recently been very difficult and inadequate. Provision of public land access will make control im- practical. Long Beach will be quickly fished out and of no further use as a propagation ground. VII. Costs of the Project O-rotl 'N A CZI yov5Aa To l A4to 1. Acquisition of title to the intertidal lands. PuJL5LC ;OA M D PUbLICr A455 F L APV TO LOM Presumably acres of low value. 2. Acquisition of that area of the beach which -- P~.n ]ON OF dO_.CbiQ1P He- LI/ 3 - f is above mean high tide and of the adjacent upland A necessary for parking and sanitary facilities. The IO) O o C taking would have to include at least two houses, maybe four. Adjoining property taken would receive heavy damages resulting from the adverse affects of H development of an adjoining public beach which would IQ _ .J VLAC totally destroy their current privacy. This is very , high-value waterfront property. _>.Z)J z X I.wa-VIe 3. Access will require a 50' wide taking of private _AX land for 8/1os of a mile. Opposition of the land- - - a"Y owners will be strong. [ At (GiZ4 4. Road Construction for 8/10s mile including instal- , A.-( iAv lation of town water to service the sanitary facilities. 5. Widening and "improvements" to Indian Neck and Great / Neck roads to meet the needs of greatly-increased traffic / 1 1/2 miles. ' "_ 6. Construction of parking and sanitary facilities. 7. Beach development to expand a very small high - *' tide beach to make the full-length of the spit ) 'J useable at other than low tide. Apart from the t cost, the ability to design this work so that it will resist the storms and not need constant maintenance and repair is very dubious. If realistically estimated, the total of the - \ above costs will prove astronomical, a ridicu- 'i i. lously high price to pay for 700 yards of useable but not exceptional beach. ?A . c- it 73ASCOT ~'~-~, n~ I. o ? . a r,,.~ ~30 z Q -- .-. .i. U. S. S. Massachuselis Memorial Committee, Inc. <~~a>. / 6 ~~~~~ - . ~~~.. ..t svrt~~~~~~romr ~~CQVE 02721 VAL!. xW-PIAVAIJSn November 15, 197? 01 --C~c~~C, - --.--- -Federal Office of Coastal k-' J~ \lZove Management -- - 3oseton, Massachusetts - - -_ - Centlemen- 6), L have reviewed the ducurnots outlining the Coastal Zone Manage- ment plan far the State of Massachusetts. I think the study of the coastal zoane areas of the state Li exttemely well done. ~~~VI~~L /2-~~~L.(A.~~~L~~.~ I ~support the goals andi object~yes nf the� cc.astal zone nanagement study withoet reservation. Sincerely, lv-, PAUL S. JAIITSES, JR. -~81~�~t~t' -c' ----- -Executive Director ~CL"VfZ &U\3L ZO _. - __ 6$wL6. __~ecobF~h6~ )\ sa T ~U 3"' -2- 9) Enhancing local and staee capabilities for planning and management of coastal land resources 10) Stressing improvements to the quality of the existinl; urban communities, particularly in the ports and harbor areas --IN OPPOSITION O~'---H 6? 68- 11) Providing public access to unique recreational areas Prer.ented-by- Michole Perrault before the.Natural Resources and Agriculture -Gommittee,_October 2~, 1977. 1' . i \d'- -The--L-eague-is-opposed-to-H- -668--becnse- we-are-concerned -that--its -passage. will The League of Women Voters of United States worked for the passage of the prevent-the timely approval of a coastal zone program in lMassachusetts. Once Coastal Zone Management Act of 1972. During the past three years the League a plan is approved, the state will gain new funds which w:ll be available to of Women Voters in Massachusetts has taken part in the Coastal Zone Management improve both the quality of the environment and the state of the economy along planning process. The League has been actively represented on the Governor's the coast. There has already been too much delay in protecting our varied and Coastal Resource Task Force as well as on citizen advisory committees through- valuable ecosystems from inappropriate and conflicting users. It is time that out the state. The Leag.:e is thus in a position to judge the openness of Massachusetts made a firm commitment to manage its coasta: resources wisely the process by which the Office of Coastal Zone Management developed a plan through an appropriatelyfundedolanagement program. The legislature has passed designed to reflect the ieeds and concerns of the citizens of Massachusetts. many good laws in this area, but their implementation has beeu delayed for lack of adequate funding and coordination. The League supports the following goals of the Massachusetts Coastal plan: 1) Developing policies �-nd standards for conserving our coastal land resources The League is also concerned that there be an approved Coalstal Zone Management 2) Assuring consideratieon for human needs, social, environmental and economic Program in place prior to the development of offshore oil.. This is particularly 3) Bulilding a role for e:ontinuing effective citizen participation urgent since the lease sale for Georges Batlk is scheduled for January 1978. 4) Incorporating conservation and the wise use of energy A process has already been established to provide further comment on the content 5) Relating transportation planning and construction in the coast to social of the proposed Coastal Plan for Massachusetts. Hearings on the Draft Environ- and environmeratal costs mental Impact Statement have been scheduled for November to behield along the 6) Designating areas of unique and fragile habitats coast. As stated in the Draft, the purposes of the hearir-gs include deter- 7) Identifying and regullating areas impacted by public investment where siting mining if there are sufficient enforceable policies to cnfure adherence to the might result in secondary impacts on the coast 8) Identifying and regulatJng areas of critical concern including fragile management program once it iadopted. It is at this tile that legislators interest groups, or interested citizens will1 have the oppc rtunlity to ;ugVgeSt and historic lands, ahere development could resmlt in irreversible damage; additions or deletions to the proposed plan. r�peh-lb]i~ resonrce lands,. where development could result in the loss of productivity: and, natural hazard lands, where developllmt could endange:r life and property. :?q2 -3- The League recognizes that creating good working relations among the lSTATEMENT OF PATRICK J. KENNY state, and federal levels of government will be one of the most difficult and CRAM MASS. COASTAL ZONE MAN4AGEMENTPRGA important aspects of the coastal program. We recommend that interested parties NOVEMBER 14, 1977 scrutinize the plan carefully, and, where necessary, provide constructive sug- gestions to make the process more open and more manageable for all concerned. The League of Women Voters of Massachusetts urges legislative support to help IfT mame Is Patrick J. Kenny. I am an attorney for New England move Massachusetts forward with securing approval for a tool which can help power Service Company and an also speaking on behalf of its affiliated protect Massachusetts' fragile coastline. Under the proposed Coastal Zone companies, New England Power Company and Massachusetts Electric Company. Management Program we have a chance to make our existing laws work more effec- tively without adopting additional land use control powers at this time, and Ze are again the form proposed Massachusetts cretal with he us of Fderaldollrs toease he stte'sbudge probems. hereZone Management Program in the form proposed by the Massachusetts Secretary with the use of Federal dollars to ease the state's budget problems. There of Environmental Affairs on March 18, 1977sand as amended on October 7h has never been a better opportunity to develop and implement sound environmental oW urge tat ai r s ton o f r ch 18, Program he d e l n ded un Ocific and economic plans for beach development and access, for port and harbor authorizatiom has been received from the State Legislature for the Program and the Program has received more input from the public and the business community- We support the concept of land use planning, but only if it is balanced to accommodate the legitimate interests of business in general and energy facilities in particular. Business input into the development of the 500-page Massachusetts Coastal Zone Management plan was limited and additional involvement is vitally needed. We have been attempting to resolve a number of specific points with representatives of the CZM office, but much remains to be done. tjAn underlying, apparently unresolvable, problem with the plan is the legal basis u~on which it was developed. The Plan relies on the concept of "networking" existing agencies a-dd'~tutes"1dugh''eaoranda 3 2 the Executive Office of Environmenthl Affairs to adopt the of Understanding" such that existing agencies agree to abide by the plan, plan as proposed.) its policies and regulations in advance of its adoption and without specific statutory authority. Such a practice is contrary to the Massachusetts 2. conduct a comprehensive review of tle issues and reqtiresen:s Administrative Procedures Act and to the legal principles governing dele- to be contained in a Coastal Zone Management Plan. Crce it gation of legislative authority to administrative agencies. is determined what Is needed in a plan, it will be clear whit The Federal Office of Coastal Zone Management hag declared that streamlining of existing statutes, Fermitting procedures and only 17 of the 38 policies contained in the plan are enforceable under j o is necessary. Federal or State statutes. We believe that less than 17 are enforceable. We understand that there is adequate time for additional sludy There are indications in the Plan that more than 17 will be enforced, money to come to the State CZM Office from the Federal government so that (See discussion of Policy 15 on page 5 of October 7, 1977 addendum.) This this review and revision can be accomplished. leaves us with the obvious question, "If 21 or more of the policies are ~ ~ ~~~o these reasonsand urgeiso that the prooseomplacishett considered to be unenforceable, why should the plan be adopted before Coastal Zone Management Program not be approved in its present form. these uncertainties are resolved in some acceptable manner?" In our opinion, chaos and conflicts would result in the administration of the plan, particularly with regard to projects of regional or national interest such as energy-related facilities. We recommend that the Plan be revised to make specific accommo- dations for legitimate growth. We believe that the legislature should take the lead in resolving these issues, working with the Executive Office of Environmental Affairs and the business community, in order to: 1. examine the basic underlying authorities for the Plan. (We believe the existing statutes do not confer jurisdiction upon 2 STATEMENT of agree to abide by the Program, its policies and regulations in advance NEW ENGLAND POWER SERVICE COMPANY of its adoption and without specific statutory authority. Such a MASS. COASTAL ZONE MANAGEMENT PROGRAM practice is contrary to the Massachusetts Administrative Procedures Act November 22, 1977 (M.G.L. c. 30A) and to the legal principles governing delegation of legislative authority to administrative agencies. (See Commonwealth v. My name is Patrick J. Kenny. I am an attorney for New England Diaz, 326 Mass. 525.) An example of a policy with no statutory basis Power Service Company. I am speaking today on behalf of Mr. Edward A. is the prohibitory language in the Implementation section of Policy 17 Brown, President of New England Power Service Company and also for our on page 175 of the CZM Program document. The intent of Policy 17 is to affiliated companies, New England Power Company and Massachusetts "encourage" maritime commerce and related development in port areas. We Electric Company. agree that this is a worthy goal. However the CZM Program will implement this goal in a predominantly negative manner. This would be accomplished In earlier hearings on this subject we have testified against by the CZM Program in large part by prohibiting so-called "non maritime the adoption of the proposed Massachusetts Coastal Zone Management Program dependent uses" in port areas if such uses conflict with a foreseeable in the form proposed by the Massachusetts Secretary of Environmental future maritime dependent use. In other words a new warehouse, apartment Affairs on March 18, 1977 and as amended on October 7, 1977. We have complex, industrial factory, restaurant or powerplant could not be allowed urged that adoption of the CZM Program be delayed until specific authori- in a port area if spokesmen for public agencies, fishing groups, maritime zation has been received from the State Legislature for the Program and shipping groups, or maritime industry have merely expressed an interest the Program has received more input from the public and the business in the site for some vague future project of their own, this despite the community. fact that they may have no ownership interest in the site or any real We have had particular concern with the legal basis upon which prospect of ever obtaining ownership to it. Quite apart from the the Program was developed. The Program relies on the concept of problems we have with the sweeping generality and vagueness of Policy 17 "networking", i.e. coordinating the 'activities of existing agencies and we simply cannot find anywhere in the Massachusetts General Laws an statutes through "Memoranda of Understanding" such that existing agencies expression of intent by the Legislature that would give the Secretary of Environmental Affairs power to enforce such a policy to deny permits for private projects. S3 -s 3 4 Another major problem with the Program is its lack of projects then such concerns should not be enf rced if they are outside enforceability under State and Federal law. The Federal Office of the subject matter jurisdiction of the State agency which prepares the Coastal Zone Management has declared that only 17 of the 38 policies relevant MEPA environmental impact report. contained in the Program are enforceable under Federal or State Policy 15, which refers to improving visual access in urban statutes. We believe that less than 17 are enforceable. However, areas and providing visibility to coastal act vities is not listed in there are indications in the Program document that more than 17 will the Draft Environmental Impact Statement (DEI;) as an "enforceable" be enforced,to the extent that they will be considered by regulatory policy. Yet on page 5 of the October 7, 1977 Addendum to the agencies in approving or denying permits and licenses for private Massachusetts CZM Program document the statemsnt is made that the projects. Massachusetts Energy Facilities Siting Counci will "use" Policy 15 Policies 14 and 15 are examples of the confusion as to and that Policy 15 will be "applicable" to th Massachusetts Energy what is enforceable in tle Program. Agencies acting pursuant to Facilities Siting Council in carrying out its statutory charge to Policy 14 would review proposed developments near designated or regis- provide a necessary energy supply with minimu environmental impact tered historic sites. The text of Policy 14 specifically includes at the lowest cost. If this policy is not "e forceable" how can the private actions which require State permits as within the scope of Massachusetts Energy Facilities Siting Counci "use" it in carrying out Policy 14. However the implementation Section of the CZM Program its statutory duty of approving or denying a acility proposed by an document on pages 151 and 152 does not list any enforceable State law energy company? If they do deny an energy co pany the right to which gives any State agency control over visual aspects of private build a facility solely on the grounds that tie facility would interfer projects which are merely near, rather than in historic districts. with visible access to a beach or historic building would such a denial Reference is made on page 152 to the Massachusetts Environmental Policy Act be upheld in the courts? If the Massachusett Energy Facility Siting (MEPA), in M.G.L. c- 30 �5�61 and 62, as involvipg some kind of visual Council cannot deny approval to a facility on the basis of Policy 15 review of projects-. IHowever the text is not clear whether MEPA visual then why is Policy 15 contained in the list o policies on page 5 of impact concerns, are to.be applied to private projects or only to govern- the October 7, 1977 Addendum? meznt,p.Sject .- -ZfMEPA v9ual conee-ns.areto be applied to, private - > < - 1 > to "'z' r""" ' ,, v�~ .,. A * /."' � * 7 * ~3q STATEMENT OF DAVID J. BEATTIE H,6687 The Draft Environmental Impact Statement is based on the CZM Program document and contains many of the same infirmities. Thus MY NAME IS DAVID J. BEATTIE. I AM MANAGER OF COMMUNITY we urge that further con'ideration of the Draft Environmental impact RELATIONS FOR THE NEW ENGLAND POWER COMPANY. I AM ALSO REPRESENTING Statement be deferred until the CZM Program itself has been extensively NEW ENGLAND POWER'S AFFILIATE, MASSACHUSETTS ELECTRIC COMPANY, revised. I AM TESTIFYING IN FAVOR OF H.6687, A BILL WHICH WOULD POSTPONE We understand that there is adequate time for additional .ADOPTION OF THE PROPOSED COASTAL ZONE MANAGEMENT PLAN FOR MASSACHUSETTS study money to come to the State CZM Office from the Federal govern- UNTIL AUTHORIZATION AND FURTHER INPUT COULD BE OBTAINED FROM THE ment so that review and revision of the proposed CZM Program and LEGISLATURE. supporting documents can be accomplished. WE SUPPORT THE CONCEPT OF LAND USE PLANNING, BUT ONLY IF IT IS We understand that the deadline for written comments on the BALANCED TO ACCOMMODATE THE LEGITIMATE INTERESTS OF BUSINESS IN Draft Environmental Impact Statement has been extended to December 15, GENERAL AND ENERGY FACILITIES IN PARTICULAR. BUSINESS INPUT INTO THE 1977. We will submit further written comments by that date. DEVELOPMENT OF THE 800 PAGE MASSACHUSETTS COASTAL ZONE MANAGEMENT PLAN WAS LIMITED, AND ADDITIONAL INVOLVEMENT IS VITALLY NEEDED. WE HAVE BEEN ATTEMPTING TO RESOLVE A NUMBER OF SPECIFIC POINTS WITH REPRESENTA- TIVES OF THE CZM OFFICE, BUT MUCH REMAINS TO BE DONE. AN UNDERLYING, APPARENTLY UNRESOLVABLE PROBLEM WITH THE PLAN IS THE LEGAL BASIS UPON WHICH IT WAS DEVELOPED. THE PLAN RELIES ON "NET- WORKINGm EXISTING AGENCIES AND STATUTES THROUGH "MEMORANDA OF UNDER- STANDING" SUCH THAT EXISTING AGENCIES AGREE TO-ABIDE BY THE~PLAN, ITS POLICIES AND REGULATIONS IN ADVANCE OF ITS ADOPTION AND WITHOUT SPECIFIC STATUTORY AUTHORITY. THE FEDERAL OFFICE OF COASTAL ZONE MANAGEMENT HAS DECLARED THAT ONLY;17 OF THE 38 POLICIES CONTAINED IN THE PLAN ARE ENFORCEABLE UNDER FEDERAL OR STATE STATUTES. WE BELIEVE THAT LESS THAN 17 ARE ENFORCEABLE. THIS LEAVES US WITH THE OBVIOUS QUESTION, "IF 21 OR MORE OF THE bOLICIES ARE CONSIDERED TO BE UNENFORCEABLE, -2- WHY SHOULD THE PLAN BE ADOPTED BEFORE THESE UNCERTAINTIES ARE RESOLVED to mcn C at PublO l 10 i nr11 B'r 17, 1977 IN SOME ACCEPTABI..E MANNER?" IN OUR OPINION, CHAOS AND CONFLICTS WOULD COP0 Cod VOC.tl Cnal cc.i High School--7 P . OMACEtABE ZonNER?' aTmmnt Flz of, a RESULT IN THE ADMINISTRATION OF THE PLAN, PARTICULARLY WITH REGARD TO I l' . Os' P2e.huectt NERGY-RELATE D ~~Julie~t P. 3ern~toein, Pr""sidient, L~/of~r i'Lx o PROJECTS OF REGIONAL OR NATIONAL INTEREST, SUCH AS ENERGY RELATED FACILITIES. The Leagu, oC iomon VotePa of rower C~pc Cod s-lp'o~ts t WE RECOMMEND THAT THE PLAN BE REVISED TO MAKE SPECIFIC ACCOMMODA t C>Cistc1 '7'nro ''nc "'r TIONS FOR LEGITIMATE GROWTH. ta "t". in v v4Evr tc Of' the' 16-1opei'nt process. Thc Loeaue oen ttcst to t WE BELIEVE THAT THE LEGISLATURE SHOULD TAKE THE LEAD IN RESOLVING 0cnfles o~ocio.e Lci~rnelrrs ha'e served on th* Gorro' THESE ISSUES, WORKING WITH THE EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS 1.t-rz:r-irr z .:.))i''" 3cc On .o'wtal ? our.s, st advi Dry E-Coup AND THE BUSINESS COMMUNITY, IN ORDER TO: ... -c: -1trion, .!ncludinS .11so mrabo s of' o-x, 1. EXAMINE THE BASIC UNDERLYING AUTHORITIES FOR THE PLAN, (WEfro.-, iJoth than f,3u.-e and '.,awtr! qvd b 51w,-s-1 BELIEVE THE EXISTING STATUTES DO NOT CONFER JURISDICTION UPON Ce 'X? Cod '-.~- -5R'8 ilLve sor;cd on tha Citi en's Advis THE EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS TO ADOPT THE 00o:nritt-c, Alto'., !i- t on e rflgular basis over t. - pact t!: PLAN AS PROPOSED,) Y' arlsl 'h, - o;:' -tl ' -rc 3:nag rnt .'ct of 1972 is the ir"t, 2. CONDUCT A COMPREHENSIVE REVIEW OF THE ISSUES AND REQUIREMENTS 'nlyi? -,-- a, wtr uze an67 ;) (;r.t IIt TO BE CONTAINED IN A COASTAL ZONE MANAGEMENT PLAN, ONCE IT o' 1 i l t1on -nen -rsof t~ vi, d Stgto.$ IS DETERMINED WHAT IS NEEDED IN A PLAN, IT WILL BE CLEAR .-n ~ er..u-' e *onn Vorso t tonica I tsto5 *'t~ ~2' r'3 I ~s ~ e~dS,.pportq It Goals. ts poi'poso WHAT STREAMLINING OF EXISTING STATUTES, PERMITTING PROCEDURES to 11-z-511,1, t -,!c;ra AND JURSIDICTIONS IS NECESSARY., -r'., coastal c '0- WfE UNDERSTAND THAT THERE IS ADEQUATE TIME FOR ADDITIONAL STUDY 1-' tt t F,-' MONEY TO COME TO THE STATE CZM OFFICE FROM THE FEDERAL GOVERNMENT SO 'ht'~r 9-iaouwc-c titi$ ow tho Lcegue of *"oncn Vot rs of the THAT THIS REVIEW AND REVISION CAN BE ACCOMPLISHED, Unite t ?eSSChUesttS cC tHI 1;t: 32n) V11LS of JOO3tliflE', m'1er t bh.!l t:ie FOR THESE REASONS, I URGE THE PASSAGE OF H.6687. t. ot' l o mor ctht' tbr, ~~s~~~-tt ~ ~ ~ '. .r 2.1Z;ll (��:. l~ ttd*.d~l tO LC.O.1I.- 1. i-j5r IIJO0 01' Icnrd 3rlt~~~~~~~~o page 2--CZM--LWVoters,Lower Capne Cod and water resources of the coastal zone giving full consid- eration to the ecological, cultural, historic and esthetic page 3--CZM--tV#Voters, Lower Cape Cod values as well as to needs for economic development." 4 plan and uld 'an a loss of tl.2 million to the Stats There has been opportunity for citizen input in the en- The League Of 'omen Voters of Falmouth joins with the tire plarnn:4 procos. PubBllc meetir.s were announced and Lsague i or !oann Vot#rs of Lover Cepc Cod in support of this hjld in each toern an' on e regional level. Interested indiv- 4t.tenent. i usls and/or groups 'e-,e giv-;n "any opportunities to voice The Leegue cr '�mvn Voters cf Yartjaas Vineyard rlso t~i.ir. opinions. QOuesPtions swere constantly elicited. Inform- qupports this testimony and feels that all of Morthats Vineyard atlonal neetin-s were hold et intervals, The CZrM Coastlineluded in the Coa-tal Zone. ,kept ths citizens informed throughout. The Leagu= of 'nicmen Voters of Lower Cape Cod agrees that activities in thk. coastal zone--�ommercial, residential, industrial and rccreational--"muct take into account the capacity and fragility of natirsl coastal systems as well as their aes- thetic aspacts." The inclusion of all of Cape Cod in the Coastal Zone wRs not done lightly.by the Advisory Committee. It conidered the alterantives very carefully betore re3ch'ng it conclusion. Here, too, infornation was p' ovided End op- po"tunity nes <n for particip tion in policy decisions. The Leseue of 'Umen Voters of Lower Ccpe Cod would like to see ea-ly Fsder"l -npFrvsl o* the Maesschu-eotts Coastal 'ne .rogra,. It b li, ; r.t :lut it i. ur,.nt th t thiS epr:nv-l be Before the oil sale leases for Georges Bank, scheduled for January 1978, toke place. That is why the League is opposed to H6637, the bill that would prevent implementation of the Association for the Preservation of Cape Cod r. o. -or 36 exist for maritime sectors of the economy such a:, fii;he.,ies and shipping in that "certain projects" can be permitted in psrt areas without opportunity for state review for maritimo depeniency. It STATEMENT FOR PUBLIC HEARING would be useful if the EIS specified what projects a;:e :Ln mind. ON THE STATE OF MASSACHUSETTS COASTAL MANAGCEENT (See p. III-5.) DPEAT ENVIROlMENTAL IMPACT STATFEMET November 17, 1977 - Harwich, Massachusetts 5. APCC agrees with the position that long tern bhnefits November 17, 1977 - Harwich, Massachusetts will accrue to most coastal landowners as a result o:' regulating The Association for the Preservation of Cape Cod strongly dredging, pollution, filling, bulk-heading, etc. (p. IIE-5). supports the Massachusetts Coastal Zone Management Plan. 6. APCC supports the inclusion of the Masscabusetts Auduboa Wfe will direct our comments this evening specifically to the Society Wetlands Project indicating that the Wet.and:; Protection Draft Environmental Impact Statement. Program has suffered from uneven enforcement, due largely to the shortage of staff in the Department of Environmerltal Af.aLrs. 1. APCC approves the emphasis in the DEIS on the potential That unevenness in itself argues for approval of the CZ4 plan conflict of interest between OCS operations and the invaluable and the funds it promises. The same can be said for thi fishing and recreational resources of the Massachusetts coast. Waterways discussion, p. III-11. APCC ESPECIALLY APPRECIATES THE FEDERAL SUPPORT THEREIN EXPRESSED 7. APCC shares the concern expressed regarcing exirmptions FOR THE WITHDRAWAL OF PARTICULARLY VULNERABLE TRACTS FROM THE to MEPA review. Ie would suggest that permit deters.natisnslor LEASIJNG PROCESS, pp. 11-55/6. wastewater treatment construction grants by the Ilivi;ioln ,f 2. APCC fihares the caution expressed on p. III-3 regarding Water Pollution Control are the most critical anc. should be re- development that will not be addressed by the management program moved from the exemption list. (p. 111-14.) because such development remains under the Jurisdiction of 8. APCC concurs with the fair and realistic considleration localities. That provision, basic to the plan, raises serious of alternatives (pp. IV-1/2) except for that 4dvcted to tie sixti problems about local planning and regulatory capacity. Vigorous option: withdrawal. The description of doing ncthing ';o control enforcement and/or encouragement of CZM policies and regulations coastal land Ise should be supplied in much more graphic terms, will be critical. Ongoing citizen advisory councils and the State including energy facilities destroying the fish mesotlrcli, recrea- Advisory body will need to be wary of efforts to overturn the tional uses of harbors crowing out commercial fishing, braches spirit as well as the letter of the CZM plan by special interests. continuing to erode from construction of erosion-conlro:. truc- 3. APCC appreciates the concern expressed on p. III-4 that tures, dunes flattened by private residential deieloinnellt, and incomplete environmental protection will result from program an angry inland public increasingly pressuring ccast.l donmeunitis elements not being in effect at the time of program approval; It with random, private traffic as access to recreation diminishes. is our feeling that regulations and designations should be afforded. With regard to National Interest, Natioral Iefn:se and highest priority, riot only by the Secretary of Environmental Affairs Aerospace, p. 11-54, APCC questions the assertior tht t;he CZM but by other agencies and by the Legislature through the budget program will not seek to question National Security Justification process. 4.' APCC coCv',rs that something less than ideal conditions -2- of new or expanded defense facilities. That assertion could be construed as an effort to silence citizen review, and it appears plan will prevail, and that decisions will not degenerate into to misread the CZM plan. The federal consistency chapter, p. 358, secret or even closed p olitical processes. The APCC urges states that CZM will review, for consistency with its policies, er o va oe plitia po . the "location and design of new or enlarged defense installations federal approval of the MCZM plan ith that expectation. within the coastal zone." That review, it seems to us, could touch on the national security designation, a particularly sensi- tive, emotional matter capable of much mischief. (Compare the J dit Brnete U. S. Navy's efforts to locate an incoming missile sensing grid Bar Member CBadMmber in Texas, Wisconsin and Michigan.) 10. Conservation is discussed on pp. 229, 230, 256, 257, 258 and 259 of the MCZM plan, not on only two pages as suggested on p. II-57, DEIS. 11. Regarding energy facilities, it would be desirable if the DEIS added to its discussion of national interest (p. II-57/8) and impacts (p. III-13) reference to the detailed cautions embedded in the Summary of Findings. Reference in the DEIS is superficial. By contrast, the development in the plan is thorough. Examples: CZM plan's discussion of LNG flammability, p. 238, thermal effluent, p. 242, or nuclear safety, p. 243. Furthermore, the DEIS might specifically commend CZM's method of achieving such detail: contracting with the University of Massachusetts Institute of Man and Environment. 12. Concerning public participation: regional CACs have been meeting almost monthly since July, 1975, not just "over the past year'". (p. II-67) It, may seem unusual when "comments" tend to be critical that this testimony has concentrated on items approved by APCC. We have chosen to mention these specific matters precisely to preclude their dilution or removal in the final EIS. Ultimately it is the hope of APCC, as it undoubtedly is of other interests in the Commonwealth, that the balanced rationality of the CZM -3- -4- Association for the Preservatin of Cape Cod Association for the Preservation of Cape Cod P. 0. The Association for the Preservation of Cape Cod strongly believes that none of Cape Cod should be excluded from the coastal zone for the purposes of the Coastal Zone Management Plan. To eliminate a portion of the center of the Cape from We, and our 200 members, are concerned with the welfare the program would defy logic and notbe in the best interests of the Cape's citizens. ~~~~~~~~of Cape Cod which, with its unique and extensive coastal areas, is one of the great resources of the state. We have, therefore, The state chose the planning area to include all the coastal made a study of the Massachusetts Coastal Zone Management (CZM) towns -- that is, one town deep. That designation by the CZM Program and of M6687, the bill relating to that program which would include all the Cape. Although some areas have now chosen was introduced on October 5. Our conclusions are as follows: the coastal road definition, there are valid reasons why this is not acceptable for Cape Cod. No. I The Massachusetts CZM program is not -- repeat, is not a new set of laws restricting development in the coastal zone. T he parcise in the cutive will ot andironnt It is a program that will provide 1.2 million federal dollars resuir In ts dertments office of Eny powen tal to the states and towns to enable them to better manage and preserve their coastal zones and protect critical areas. or functions that they do not already have. The Cape is a single ecological unit. What affects the That Office, along with its departments and divisions, has spine of the Cape affects the coastal areas. What affects only the powers, duties and functions that have been given to our coastal areas affects our tourist industry, which is our it by Chapter 21A of the Mass. General Laws. Since that Office life blood. If the Cape is to continue as a tourist attraction, is a state one, no federal program or laws can add to its we must preserve its natural coastal resources. We must also powers. That can be done only by amendments to Chapter 21A in consider the entire Cape in our efforts to preserve the accordance with the laws of the Commonwealth. quality of our drinking water. It is simply not rational to eliminate any portion of Cape Cod from the designated coastal No. 2 zone. The Coastal Zone Management program is also the conduit Thus, the only purpose of H6687'can be to deprive that for federal funds under the Coastal Energy Impact Program state office and its departments and divisions of powers, (CEIP), a program designed to help states minimize the social, duties and functions they already possess. Moreover, it would economic and environmental disruptions that result from new do so in a way that violates the Massachusetts Constitution or expanded coastal energy activity -- especially offshore oil. and is repugnant to elementary principles of good government. CEIP attempts to deflect the consequences of energy develop- ment away from the coastal zone itself. Energy facilities the m of thistat e constive thatI are encouraged not to locate in the coastal area Unless are enourage not t locat in th coastl areaunlessthe government of this Commonwealth, the legislative depart- technical requirements force them to do so. Thus, if all the ment shall never exercise the executive . - power5.t Under Cape is designated the coastal zone, it might well be an aid the doctrine of separation of powers, the legislature is in the fight against locating gas processing plants on the restricted to enacting laws, as distinguished from executing Cape, in the event natural gas is found on Georges Bank in or administering them. commercial quantities. 1H6687 seeks to put the legislature in the business of In essence, the Coastal Zone Management Program will give carrying on executive and administrative functions. Thus, it the citizens of Cape Cod a framework within which to work to seeks to have the legislature take over, to a certain extent, protect the natural heritage of the region. Without some the approval of ,policies, plans, programs, rules and regula- structural concept in place, the Cape, as we know it, will tions" which may be adopted by the subject office and its not survive. departments and divisions in the performance of their executive CZM Mleeting, Harwich and administrative powers under Chapter 21A. November 8, 1977 For the Jteglslature to take on any such functions would page two be to paralyze the functioning of executive and administrative agencies. The legislature has enough problems in trying to consider and enact laws, without trying to consider and approve November 21, 1977 the executive and administrative functions which it has dele- 1977 '" : gated to the executive and administrative agencies of the state. Ms. Evelyn Murphy, Secretary of Environmental Affairs 100 Cambridge Street H6687 is apparently designed to prevent, or in any event Boston, NA 02108 if enacted will result in preventing, any participation by the state in the CZM Program. It is part and parcel of the phy: efforts of some interests to kill that program. Enclosed is a copy of the testimony which I did not read at the In essence, that opposition seeks to block an adequate hearing last Thursday night at the Cape Cod Technical High School but which I said I would mail to you. implementation of the existing environmental protection laws which, after the most careful consideration, were enacted into the statutes of the Commonwealth;c and to do so by preventing Also enclosed you will find The Nickerson Companies' brochure which the receipt of federal funds which, in no event, could be used might serve to help you understand that we, like a lot of other busi- for any other purpose than helping to finance such an ness concerns on Cape Cod, are cosasitted to a program of a good mix- implementation. ture of preserving our heritage and our economic base. Since the state seems to be fiscally unable to finance Very sincerely yours, such an implementation, those who do not want to see such an '}. / implementation do not want funds to be supplied by the federal government under the CZM Program to help do the job. 3oshua A. Nickerson,IJr. President No.4 ~~~~~~~~~~~~/ We believe that the legislators and other state officials JANJr/rlp who examine the above points in the public interest will use Enclosures their votes and influence to see that H6687 is defeated and that the state participates in the CZM Program. October 22, 1977 Page IIWO MNovember 21, 1977 Massachusetts, independent of legislative authority and elected officers. Purther, the CZM Plan totally ignores its economic impact on the areas affected. I firmly believe that CZM will have a far reaching and serious effect on November 21, 1977 housing production on Cape Cod. I am not opposed to reasonable environ- mental protection; but, on the basis of my research, the plan as a whole fails to accomplish any meaningful simplification of the permit and re- 100 Cambridge Street view process as has been suggested by the proponents of this master plea. Bston CrideA Str108 Perhaps more important, CZMI sets a precedent which, if unchecked by leg- Bastoil, DA 02108 islative process, will result in transfer of continued economic develop- ment to the Office of Environmental Affairs. To presume that CaM will serve to simplify or expedite the approval process is at best a mistake. Approximately three years ago the Federal Government passed legislation instructing Massachusetts (and all coastal States) through its Executive CAM procedures are detrimental to the free enterprise system. Local Office of Environmental Affairs (EOZA) to propose a Coastal Zone Manage- t hning determines density and geneal character of development. To Bnrnt Plan (CZM). ~~~~~~~~~~ ~~~~allow the Executive Office of Environmental Affairs a veto power over ment Plan (CZM). development without clear and simple standards will thrust the entire The Plan proposes to establish total control over economic development housing market into turmoil. of those designated areas (all of Cape Cod and the Islands) using the State's Envionmental Agf:!cy. The implementation of this control is to u have been accused by some as being a member of a special interest be accomplished by a technique called "networking." Unlike all other group. My special interest is preserving the environment as well as environmental management systems now in place in Massachusetts, the CZ! te economic staility of Ca Plan does not seek additional legislative action. The mechanism will be plan be postponed and that the thirty created by a series of 'memoranda of understanding (X.O.U.)" between the suggest that this particular CZM plan be postponed nd that the thirty agencies overseeing the thirty currently-existing regulatory laws and the existing laws adequately cover or Coastal Zones until the economic in- ~~~~~~~~~~~~~~~~EOEA. terest anr.d the envirormental interest can come to a mutual understanding EOEA. tailored to the needs of Cape Cod and the Islands. This scheme of regulations by-passes the elected representatives of the areas subject to control. By the use of M.O.U.'s it creates what amounts to new executive power and prerogative without benefit of the passage of enabling'law. It removes certain local powers granted to local municipali- Sincerely yours, ties and provides incen-ives enabling tighter controls by EOEA personnel at the State level. This will result in further delays and costs for projects in the CZM area while other less-encumbered areas will be able n to move projects faster and cheaper, resulting in unfavorable economic Joshua A. Ni6kerson, 3r. conditions within CZM. The substance and policy of the plan will create serious situations which will serve to block good development. There is already a substantial nulmber of laws covering all local concerns for sensi- ble land use. I seriously question the feasibility and legality in using "networking' as a tool to set up statewide land-use control outside of the legisla- tive process. The implications are far reaching and could be a disas- trous blow to an already fragile economy. Please be assured that I am not against the princi;le of protecting our Coastal areas, but rather the implementation by the Environrmental Affairs office of what is pri- marily a land-use control Lplar, specifying peomissible economic and recreational uses, and governing one of the primary resource areas of ir ASSoCIATED GCENRAL CONTRACTOtRS OF MASsACHUSETnTK IeNC. Re: Coastal 'anangement Draft -2- November 28, 1977 220 BOYLSTON STREET. CHeSNUT HILL MASS. 021617 l87/9S4.-00 Since the Coastal Zone Management program is designed to rely exclusively on existing laws and on administrative arrangements to coordinate state level reviews and permits, it is vital to the success of the program that coastal communities revise November 28, 1978 local priorities, zoning by-laws, subdivision regulations, design controls, economic development efforts., ect., to conform to this re-combined process of the Coastal Zone Management Plan. The active leadership of local officials will determine the Ms. Kathryn Cousins Ms. Evelyn Murphy, Secretary ultimate fate of the plan. Office of Coastal Zone Managemeant Executive Office of Environmental Affairs Roon 3280 Saltonstall State Office Building 2. The Massachusetts program fails to meet general requirements stipulated (DEIS, 33020 Whithaven Sttreet, N.. 100 Cambridge Street page 1-3) as the criteria for review by the Associate Administrator: Washington-, D.C. 20235 Boston, Massachusetts 02202 (I) "That the management program is comprehensive." The American Heritage Dictionary defines comprehensive as "(1) including or Dear Ms. Cousins and Secretary Murphy: comprehending much; large in scope or content; (2) Capable of Re: Comments prepared for submittal to federal and state hearing officers understanding or perceiving easily or well." The Massachusetts State of Massachusetts Coastal aagement Draft Environmental program is comprehensive in the first meaning, certainly not in the on the State of Massachusetts Coastal Management Draft Environmental Impact Statement at the public hearing November 22, 1977 at the New England Aquarium. Boston (2) "That the policies, standards, objectives and criteria upon which decisions pursuant to the program will be based are articulated clearly The Associated General Contractors of Massachusetts is a Trade Associa- tion of nearly 200 general contractors and those supportive firms which supply d and are sufficiently specific to provide (i) a clear understanding of service the construction industry. Its membership ranges from those general affected by the program and how, and (ii) a clear sense of direction contractors whose gross volume annually is less than half-a-million dollars, to affected by the program and how, an e o ction those with an annual volume in excess of $25 million. Combined, the general and predictabili or c on makrs must te actions pursuant contractor member firms of the Associated General Contractors of Massachusetts to or consistent with the management program. . . . annually put into place some $750 million in construction - commercial, industrial, T and public - in the Commonwealth. - There is no clear understanding as to what is the content of the prosram, tWe are told by the CZM Director Mr. Van Loon that we are subject only to AGC believes the draft environmental impact statement meets neither the entire regulations. But the esent writt en regulations reference the entire two volumes. We are told this has been deleted, but there is federal nor state requirements. nothing in writing to this effect. We have been told by the CZM staff that the regulation will be re-written; we do not know what the content of the new regulation will be. We have been told by the CZM Director Prime responsibility re use r. Van loon that Massachusetts is re-writing the Cis document and cutting it down to half size; we do not know what is being deleted According to page 1-2 of the DEIS, it is required that "The State level of and/or changed. In a word, we do not have a clear idea of the content government has prime respcasibility for achieving 'effective management, of the program nor of the subject of today's hearing. beneficial use, protection, and development of the coastal zone"' (underlining added). Bowever, according to the just-issued Massachusetts oGrodth Policy Report second p ates the secon d g eneral requirement. There it a "clear (page 75; title page attached) implementation re land use issues is the prime sense of direction andpredictability for decson-m not a lear responsibility of local officials:ho read the two volumes would not know what direction to Developers who read the two volumes would not know what direction to take -- except perhaps to go far away from Massachusetts -- and would be totally unable to predict whether their proposed project would have a chance of approval. Re: Coastal nManagement Draft -3- November 28, 1977 (3) "That there are sufficient policies of an enforceable nature to 4 U tSd O de' LI insure the implenentation of and adherence to the management progran. since only 17 of the 38 policies are enforceable according to the e federal government (DEIS, Page 2-7), it is clear this criterion is not U a I-DU met. With only 44.7% of the policies enforceable, there can be neither "implementation of" nor "adherence to the management program" which consists of 33 policies. Conflicts with state requirements It is Massachusetts environmental policy that environmental regulations must be The Eas achusetts Crowih P etort rational., cieat, expeditious, ani. predictable. They aust address malj. isales early on, to ennable developers to make a timely decision whether or not to proceed. This policy has been clearly enunciated by the Secretary, and by the broad-based }MEPA group engaged over the past two years in developing the amendment to HEPA presently before the Massachusetts Legislature. Unfortunately, the proposed Massachusetts Coastal Zone Management Program as presently written meets none of the above-stated criteria of Massachusetts environmental policy. In conclusion, AGC wishes to stress that we concur with the statements being made in these hearings on the importance of protecting the environmental values in the coastal zone, on protecting the fisheries, the beaches, and so on. Secondly, with half of the development in Massachusetts occuring in the coastal communities -- not the coastal zone -- the proposed program can potentially impact half the development in the state. We are concerned, indeed we are responsible, that valid development occur. We forsee the proposed program stopping, stymying, delaying, and thwarting much development -- development that is needed and that is enviror.mentally sound. Prepared by ~Respectfully submitted, The Massachusetts Office of State Planning Respectfully submitted, Michael S. Dukakis, Governor Thomas P. O'Neill Ill, Lt. Goernor WILLIAve D. Assi nt Frank T. Keefe, Director Executive Assistant uvdk: jtd Sep'ember 1977 Enclosure Submitted to the Special Commission on the Effects of Growth Patterns on the Quality of Life in the Commonwealth In accordance with The Massachusetts Growth Policy Development Act Chapter 807 of the Acts of 1975 'ublicairn (o' ';:, ':ll't:; :: r.. :rd by Alfreld C Hol!and. Stle Rjrchasing .g',n; i.lmr:;:dcostlpr copy: S103. 9000)9. 77142.:71 3s7. .4~~ ~ "'o,,a Presented by ilichele Perrault at a public hearing an the Meassachusetts Coastal Zone Management Program/Draft Savironmental. Impact Statement, on November 22, 1977. TheLeaue f WmanVoters of Massachusetts welcomes thiS opportunity to testify to eupport of the Meseachusett" Coascal Zone Program, having bee. Involved ever the last three year, through member participation an the Governor's Coastal Resource Teaft Force .t~~~~~~ "'~~~~~~~~' ~~~and onvarious Advisory Committees. ~~~~~~~~~~ ~~~~~~~~~The League supports tile Massachusetts coastal Plan whose policies respect the Integrity 0 a of our coastal biological systems upon which hOuse lives, - out lives - and the lives ~4 0. o f our children, depend. It to a plan which can bring a halt to the severe din- ~4 C'1 carption of our ecological aystems and to conditions detrimental to human health and welfare. it to a plan which states soun" land resource goale and provides policies. for conserving our land ramovruces. It fosters coordinated planning and management of land resources among agencies and the Various levels of government by etatblishing mechanisms to ensure consideration of both public and private rights and interests affected by land use decisions in the coast. it offers a process for minimizin �conflict of interest on the part of those who will nak& decisions about the ase of coastal resources, Including the establishment of a process for ongoing citizen Involvement during the Program's implementation. In teatinony before the Haesaachusetse Natural Resources and Agriculture Committee an MasschusttsPlan, which are appended to this testimony. The following should be '3S7 - 3 - 1) Relating the use of land to its inherent characteristics to assure this process, and in line with the League position tlat citizen participa- 2) Protecting private property rights and values in accordance with overall consi- ton must be built into the planning for and management of lan- resources at every deration of public health, safety, and welfare 3) Developing processes for comprehensive land use planning step, the League supports the idea of the Citizen Advisory Courcils and the statewide 3) Developing processes for comprehensive land use planning 4) Encouraging regional planning and decision making advisory group. In order for the CACs to carry out the role of preparing and pre- 5') Fostering innovative community design senting proposals for alternative management systems for public and legislative 5) Fostering innovative community design discussion(ap indicated on page 370) we recommend that Managemert be added to the CAC 6) Acquiring land for public use. Tasks, as has already been done for the statewide advisory guotp. In regard to specific parts of the Massachusetts Program, the League welcomes the In addition, to ensure more effective citizen participation, we encourage the Office addition to policy 33 of consideration for energy conservation measures. This addi- of Coastal Zone Management to assure that adequate funding wil] be provided for tion recognizes that the wise use of energy resources will provide time to decide on citizen information and review. The quality of the monitoring of implementation of the long-range energy-related policies and programs and that the wise use of energy should program will be crucial. be a goal of all planning and management of land. We suggest that an additional task for the statewide advisory iroup be to devise a We cannot overstate the importance of this part of policy 33, particularly as stated in the program, "the success of energy conservation has a direct bearing on the need process for involving those inland communities which might abscrb the impact of energy for energy facilities and that vigorous energy conservation measures can lessen the facilities,Xand who are eligible under the Coastal Energy Impact Program, to receive impacts of new facilities on the coastal zone by not requiring as many." such assistance) in the decision making about allocation of such funds. This might also ease the burden on the coastal resources by considering when such development The League urges the coastal zone staff, citizen advisory committees, the statewide can best occur inland. task force and other state agencies and the legislature, will find ways to strengthen the implementation of this policy. The ability to seek amendments or modifications to the CZH program will be particularly important since many citizens are concerned that the CZH program leaves the vast There is a need to encourage those who wish to build facilities to examine strategies majority of decisions about the coastal zone to local government discretion. For for promoting energy conservation when submitting forecasts to the Energy Facility example, the Office of State Planning in its document, Cities and Town Centers - Siting Council. In addition, it id essential for the state OD-pursue more actively A Program for Growth stated that, "Since the Coastal Zone Management program is strategies for energy conservation that go beyond the goal of reducing energy con- designed to rely exclusively on existing laws and on administrative arrangements to sumption by five to seven percent. coordinate state level reviews and permits, it is vital to the success of the program that coastal communities revise local priorities, zoning bylaws, subdivision regulas-' The League supports the idea of a Coastal Zone program based on existing legislation at this time, but also recognizes, as does the CZi program on page 370 of the Program tions, design controls, economic development efforts, etc., to conform to this re- combined process of the CZM program. The active leadership of Local officials will Document, that 'the CZM program is intended to be an evolving program." In order determine the ultimate fate of the plan." -4- The League sees the CAC's as one place where such encouragement to coastal communi- ties can be made. The League is encouraged by the inclusion in the CZM program, of the CAC's, which can foster bitter cooperation between state and local levels of IN OPPOSITION TO H 6687 government. Presented by Michele Perrault before the Natural Resources and Agriculture Committee, October 27, 1977. In recognition of certain promises made to citizens in the Coastal Zone Program Document, the League requests that the federal government set conditions on the first The League of Women Voters of United States worked for the passage of the year of funding following federal approval. Such conditions might include provisions Coastal Zone Management Act of 1972. During the past three years the League that the state adopt new or revised regulations for the Ocean Sanctuazy-and Water- of Women Voters in Massachusetts has taken part in the Coastal Zone Management ways Programs, Wetlands Protection Program, Division of Water Pollution Control, and planning process. The League has been actively represented on the Governor's the Energy Facilities Siting Council, and that the Secretary of Environmental Affairs Coastal Resource Task Force as well as on citizen advisory committees through- designate areas for preservation or restoration as described in the Regional Chapters out the state. The League is thus in a position to judge the openness of based on citizen input in each region. the process by which the Office of Coastal Zone Management developed a plan designed to reflect the needs and concerns of the citizens of Massachusetts. The League supports the following goals of the Massachusetts Coastal plan: 1) Developing policies and standards for conserving our coastal land resources 2) Assuring consideration for human needs, social, environmental and economic 3) Building a role for continuing effective citizen participation 4) Incorporating conservation and the wise use of energy ,i: !- - 5) Relating transportation planning and construction in the coast to social and environmental-dosts 6) Designating areas of unique and fragile habitats 7) Identifying and regulating areas impacted by public invtestment'wihere siting might result in secondary impacts on the coast 8) Identifying and regulating areas of critical concern including fragile and historic lands, where development could result in irreversible damage; renewable resource lands, where development could result in the loss of productivity; and, natural hazard lands, where development could endanger life and property. U39 9) Enhancing local and state capabilities for planning and management of 3 coastal land resources The League recognizes that creating good working relations among the local, 10) Stressing improvements to the quality of the existing urban communities, state, and federal levels of government will be one of the most difficult and particularly in the ports and harbor areas important aspects of the coastal program. We recommend that interested parties 11) Providing public access to unique recreational areas scrutinize the plan carefully, and, where necessary, provide :onstructive sug- gestions to make the process more open and more manaigeable fo: all concerned. The League is opposed to if 6687 because we are concerned that its passage will prevent the timely approval of a coastal zone program in Massachusetts. Once The League of Women Voters of Massachusetts urges legislative support to help a plan is approved, the state will gain new funds which will be available to move Massachusetts forward with securing approval fcr a tool which can help improve both the quality of the environment and the state of the economy along protect Massachusetts' fragile coastline. Under the proposed Coastal Zone the coast. There has already been too much delay in protecting our varied and Management Program we have a chance to make our existing laws work more effec- valuable ecosystems from inappropriate and conflicting uses. It is time that tively without adopting additional land use control powers at this time, and Massachusetts made a firm commitment to manage its coastal resources wisely with the use of Federal dollars to ease the state's budget problems. There through an appropriatelyfundefmanagement program. The legislature has passed has never been a better opportunity to develop and inplement sound environmental many good laws in this area, but their implementation has been delayed for and economic plans for beach development and access, for port and harbor lack of adequate funding and coordination. development and for protection of fragile areas. The League is also concerned that there be an approved Coastal Zone Management Program in place prior to the development of offshore oil. This is particularly urgent since the lease sale for Georges Bank is scheduled for January 1978. A process has already been established to provide further comment on the content of the proposed Coastal Plan for Massachusetts. Hearings on the Draft Environ- mental Impact Statement have been scheduled for November to be held along the coast. As stated in the Draft, the purposes of the hearings include deter- mining if there are sufficient enforceable policies to ensure adherence to the management program once it is adopted. It is at this time that legislators, interest groups, or interested citizens will have the opportunity to suggest additions or deletions to the proposed plan. tV aJslachusetts orest necessary manpower and incentive to complete the revision process. A clear timetable for completion, tied to the renewal of the grant in 1979, will engender the needed pressure and support to assure promulgation of required cnP~~~~~~~~~~~~~~~~~~~~clrK~ ~regulations. rar Although we urge prompt program approval, the Massachusetts Forest and Park Ass ciation does support a strict timetable for regulation promulgation. Ass(D Lcklation Three Joy Street Boston Massachuseats 02108 Tel. 617-742-2553 The Coastal Zone Management Plan, based as it is upon existing statutes, depends upon the clarification and coordination of programs through new regulations. In particular, the implementation of the Plan depends upon new regulations for the Waterways Program (c 91 ss 1-59) and the Wetlands Protection Act TO: Office of Coastal Zone Management, NOAA (c 131 a 40). The new regulations under the Wetland Protection Act are needed FROM: Nancy C. Anderson, Executive Director "to provide clearer guidance as to the permissibility of uses in or adjacent Massachusetts Forest and Park Association to salt marshes, salt ponds, dunes, beaches, barrier beaches and shellfish RDAE: November 22, 1977 beds," (Policy #1) and assistance to local conservation commissions in their RE: PMassachusetts Coastal Zone Management Plan determinations of a project's impact on such things as flood control and storm damage protection (Policy 8). The Massachusetts Forest and Park Association, a statewide environmental advocacy organization, supports coordinated environmental management along Under the Waterways Program, regulations are needed to set forth criteria advocacy organization, supports coordinated environmental management along for determining under what circumstances marine construction, dredging, and the Massachusetts Coast and urges prompt.federal approval of the Massachusetts offshore sand and gravel mining below the high water mark shall be permitted Coastal Zone Plan to maintain the momentum toward environmental protection offshore sand and gravel mining below the h igh water mark shall be permitted (Policies 4, 5, 6, 17, 18, and 19). New Waterways regulations are needed to engendered by the Plan's preparation. - specify that construction of solid fill structures will be permitted only if As to the form of the Plan, we would have preferred that "Policies" water quality, marine productivity, and anadromous fish runs are not adversely affected, and that public funding for dredging shall go to port areas and enforceable through existing laws be highlighted to distinguish them from aevected, and that public funding for dredging shall go to port areas and 'Policies'which are statements of goals and objectives. However, the mild developed harbors and projects with widespread public benefit for shipping, confusion engendered by this blending of policies has not fatally flawed the recreation, or environmental values, Because these new regulations are key to the implementation of the CZM program, the June 1978 deadline stated in public participation process. the DEIS for promulgation of these regulations must be adhered to strictly. As to the content of the Plan, the Massachusetts Forest and Park Association would have preferred that the Program address the need for permanent protection Two other statutes upon which the CZM Program depends for implementation of floodplains, visual viewpoints and sites, and other significant ecological are the Scenic Rivers Program (c 21 s 17b) and the Ocean Sanctuaries Act (c 132A resource areas along the coast, not managed under the existing Wetlands as 13-17). At present there are no promulgated regulations under the Scenic Protection (c. 131 s.40) and Wetlands Restriction (c. 131 s.40A) Acts. How- Rivers Program and the DEIS indicated that none will be forthcoming in the ever, local zoning ad hoe rule authorities are supported strongly by the near future. however, under Policy 16 (pp 154-155) the Plan states that Massachusetts citizenry, Changes in the direction of increased state control "CZM is assisting DEM in drafting regulations for scenic river implementation." As suggested in the Plan, criteria for selection and protection mechanisms over land use are not accepted readily. need to be developed. The Scenic Rivers Program is of particular importance Massachusetts already has some of the most progressive environmental and for protection of rivers and estuaries in Areas for Preservation or Restoration. land use laws of any state in the country. our existing state laws concerning We suggest that in order to proceed expeditiously with the designation and wetland protection and energy facility siting are strong stools. Our local protection of APR's, Scenic River Program regulations should be in place prior, enabling acts provide sufficient mechanisms, if utilized, to protect significant to the June 1978 deadline. coastal resources. Better administration and coordination of existingification of the Ocean Sanctuaries law was engrossed in the authorities as provided under the CZM plan would vastly improve the management Massachusetts Senate yesterday. Therefore, if enactment and signing by the of our coastal zone and its finite natural resources. Governor proceed without unusual delay, the Coastal Zone Management Plan pro- Approval of the proposed Massachusetts Coastal Zone Management Plan will vides for promulgation of regulations in late January, We urge that regula- tions necessary to control ocean dumping, dredging, removal of dredged materials, enable the state to promulgate long-needed regulations for issuing permits, coordinating the permitting processes, and designating critical areas. Approval and other ocean activities be effective on the date of Plan approval. should not be withheld until the regulations proposed by the plan are drafted or revised, and promulgated. Program approval will produce the COISFsAT'1O'I LEGIObLATrIO ~k~lr~~i~i~Si-rT;- 5~.-e 32 n~�lcY~-t,'JjciN\E~ CC (1>4j i;J~i C' f~C L~~I 7-~l t~-~L~t~l~J~ N3�i+l.~L 4 11 ~rZ\~KT~h~ f" , Nk.4h v~~~hlTk-h After program approval the process of desi-nating APR's and restricting -rz C j %r-'.a-'.,s'L )ijfl-e AC-1ei .4 t h 4 z~c-' coastal wetlands under the Wetlands Restriction Act should- proceed without delay. We suggest that program renewal be tied to designation of APR's and U 4-iY., t t-S' L,5 C- 9(c4-c (' r Q vigorous implementation of the Wetlands Restriction Act. With the federal assistance which comes from program approval, the rest of the State's coastal L-(- czz- -.O-;- wetlands should be restricted in three to five years. We urge that this be t z- done. The basic concept of the CZM program is to make our existing laws work , - . ( , better for everyone. We support that concept and-request approval of the A. ;v C* --'m4e Thank you. fm-c 14 4est*-z~ 5ri< C 4cz�, (L$4Lc-� ~h~kFfb~ c~- d- i .4bv-3cFy r r b~fc\ Ni;GEr~- tbL~e~cA&F~~l e .-Al VWe(La 01 ~ o(- Oz~ j~ C- NC t?4ht go -7baz u-N t+ k 3~smC4-6 Ivo~r +/,hr (OslhT;loT !c- ~A cz ~~~~ P~~~~r--~ ~ � -~1~3JC ~\~/ f K C~- ($ -W-j L 4s, \ - t ~~~~~~~re -4~~tC~C~-Zb MASSACHUSETTS ASSOCIATION of CONSERVATION COMMISSIONS LINCOLN FILENE CENTER TUFTS UJNIVERSITY MEDFORD, M)ASSACHUSETTS 02155 ,-W ~~I' C 4 ~ (ry ~c General Information; (617) 628-5000 Ext. 352 Legal Information (617) 542.1354 Testimony on tie : asrachusetts 1,oast-al Zone :.irna ennnt :'!an an! its ~~~~~~~~~~~~- 1r," Fe-Je7--l 'nvirom-ontaL TInjnct At~t-r.3nt, :,ov,_r'Uer 22, 1'~77, hrv the Q - ,~~~~~~~~~~~~~~~~~~~~~~asrachusetts Aso',ciatlon of oon:-ervation koitlssions. :y name is onrton Fi. :lickerson. I am Lo;1-;lativn Liaison Urnctor JVN le-vx~~~~~~~~w=Lr, 4 A- ~~~~~~for the !A= an indep'orylent asroclation o~ thr. 2)IT) vol-,ntccr cItI..;ns vho sarve on otur 332 conservation ~cnorusion-;. i arn a :nenber of the C~~XA~l~~i~flX~~ P.~ tJ'E.~~5~~. ~ ~~-~VZ'A/C ~~ 2oard of1' nvirarin~t!tal ..:ana~e'ient of the Comniom.;S-lth. a, Pmeer of the c ~~~~~~~~~ I ~~~~~~~oriq-inal MZ Tas., .1orce, arci vico-chairman of' tho Jonnis 2onsorvration 1, A-Z ,ED C-& c42 ife , -tj 4 Cc v% ty Corcission. I have a deep and abidinr interest in the coastal zone fromx rw ecolo~lcal research perspective as an Associate 11rof esscor of _1iolojy 15c1 '~ 0,- 'CamaraQ i..-! r_ &-sqr2 Tz ,c1 i ~cv),rJ ~?3 at Tufts Onlvorsity in ;.&I'ord. ekj_3Tib, W GC.rMrod FC, *?Sx5(-e C~ ' E The CZ": prot;ram is unique In not seeolm-, no'.: lc:islation ani in dependinwz for most land use decisions on the local m~unicipalities, usir1(, existinC lalls. The state wetlands restriction pro.'.ra.= will strengthen the local deterr-.nation to keep ou-- coasto]. watlanis, barrier ocaehess ~~~2'3C2 4~~~~~~~~~c ~~~~44~~~~ ~and sande dune areas Intact, for It Is the local conservation commissions which decide whether or not per-littod uses will irkleed be allowed. The policye of designating sanctuaries and~ areas of or, tical environ- ~~ ~ ~ ~~ Yi,., A-N 4~~~ ~ ~ nenta concern~' wIl allm., us to dievelop baselines s :st"hlch inadvertent chanes may be '.'asurol. It will also allov, oroansion of seashore- devonlont. coastal recreation facilities, whore 'an astronom'ically increased f br~~~~~~~~~~C.and, is clearly cotinC. The policy of seekin: development `,ir al-r (:-'-evelo:r.-- aroo-r ", ono i'hich shoual- ivulvT thero who want to mq.'psi our son-.leo)flenirt, cornrercial activities to choose early those locations whoreo they will ho welconod. The rost e%citinr facet of this vhole 1Dirt~n 'Alte coorlination bet.mocn state and- local. laws, loctin )o~~s astion decisions and uses which the CZX pro~-ran pror.,iss. ,0o near to use our present laws fully. Toe neoed to emm-leite our i~erinittin-, procez;,es without cotnror-Aniinj- the authorities and. re,-ponsibilitles desi.:nato, in there present laws. it is the consi'cred position of this Armociation that the pro,6ram, develn:vel lInnely throtkvh citispn intlut, is a viable ani necessairr t-)ol. "'hile a caso can be devellopid thit it shouir ho evon rtro'.,;er. . feel it shoul,! be triel as it is here present'). '.1- feel the Federal -) '13 exalidnes the facots of tho pro..ren fairly.aSf1 consequently we ur~e Federal- a: proval of the impact Jtate-:cnt and of th'r .assachneetts ~oasta1. !one rilan. f ank you. 'dc~-roro NOTES - 2- RE.ARKS AT HEARING ON DRAFT ENVIRONMENTAL IMPACT STATEMENT realistic interpretation would be one of economic feasibility in MASSACHUSETTS COASTAL ZONE HANACEMENT PLAN NOVEMBfER 22, 1977 order to avoid unduly penalizing consumers throagh the added costs of inland construction and operation of our facilities. 1. My name is Frank Lee. I am Environmental Planner in the Environmental b. Policy 17 highlights the problems with the principle of coastal Affairs Department at Boston Edison Company. Boston Edison is a major dependency. This Policy would prevent uses of land in ports and energy supplier in eastern Massachusetts and owns and operates facilities harbors which may conflict with actual or potential maritime in the Coastal Zone. The CZM Plan would affect the location of electric dependent uses. Most power plants in Massachusetts are located in generating facilities, the cost of energy to the consumer and the overall such areas and this Policy could prevent the uses of these sites for economy of the Commonvealth. new or expanded power plants if certain groups should ever express 2. Our Company is opposed to the adoption of the proposed CZM Plan. We an interest in the site for a potential maritime dependent usa. are opposed to the Plan for various reasons, including its lack of legal c. While the Plan leaves the Siting Council with some discretion in the foundation in various important aspects, its imposition on coastal activities policies contained in the Energy Chapter, the Plan imposes at least of improper and unauthorized procedures, its failure to treat properly various 18 new standards or policies on the Siting Council and the energy energy end economic issues, and its lack of balance between economic and industry. See p. IV-6 of DEIS and p. 3 of Addendum. This is in environmental interests. These problems have previously been communicated many respects illegal, e.g., the Secretary of E)EA's powers in land to and discussed with the Federal OCZM office and the State Executive Office use and energy siting are advisory only, and in general the Secretary's of Environmental Affairs. It Is our intention to submit written comments to rule-making power does not apply to such matters. Perhaps as signif- you on our problems with the DEIS. (Check State filing date for comments). eantly, the Memorandum of Understanding with the Siting Council and Today I would like to cite briefly some examples of the problems ve have the imposition of such standards upset the carefully created balancing with the proposed Plan. of interests by the Siting Council. 3. The Plan in our judgment treats wrongfully the role of the Energy 4. We strongly object to the inclusion in the Plan's caverage of Pilgrim Facilities Siting Council and improperly imposes policies which would Unit 2, our nuclear plant addition in Plymouth. See p. 111-14 of DEIS. This adversely affect the electric power industry. Unit has been through thorough extensive Federal, State mad local reviews, a. Power plants are held to be not "coastally dependent". While we e.g., the State Environmental Impact Report has been approved, State and question the legal validity of the principle of coastal dependency, Federal water discharge permits have been issued, the State waterways permit we also point out that the principle is applied in the Plan in a has been granted, the local zoning approval has been received as well as very narrow sense, namely one of physical feasibility. A more wetlands' orders of conditions. The Advisory Committee on Reactor Safeguards has given the project its approval and the hearings of the Atomic Safety and -3- Licensing Board are near completion. It is, we submit, wrong to subject include such policies would be legally meaningless and confusing to the this project to CZM consistency review at this stage. In fact we suggest licensing process, would leave agencies and public officals unclear about that, in order to avoid a moratorium on economic development, there ought their duties and obligations, and would unnecessarily end unfairly provide to be a broad "grandfather" clause included in the Plan to protect ongoing grounds for interventions and delay in the permit reviews and approvals. or planned activities. 9. By way of conclusion to these brief remarks I would like to quote some 5. Renewals of water discharge permits for facilities in the coastal zone observations made by some consultant engineers who had the opportunity to (such permits expire every five years) should not be subject to CZM review review the CZM Plan and the DEIS. We offer these conclusions for your Water discharges by industrial sources are already thoroughly regulated by consideration: "The most obvious comment is the inability to comment. In the Division of Water Pollution Control and EPA, and CZM should not as our opinion, the majority of the document is so vague that no comment can indicated on p. 91 review the work of these agencies. The involvement of be offered. No one would stand up and say no management of resources is CZH. in such matters would constitute an unnecessary overlapping of bureau- needed, but the document fails to demonstrate much beyond the total cratic functions. preservationist point of view. Licensing a power plant under these 6. The provisions of the Chapter on the Visual Environment are uncertain conditions could be difficult, since the CZM policies have little guidance and vague. To say (in Policy 13) that one must minimize adverse impacts on what is an acceptable impact. Decisions of acceptability are left to as to what is in acceptable impact. Decisions of acceptability are left to the visual environment provides little guidance to a developer and leaves (ZH staff interpretation of general policies, rather then comparison to CZM with virtually unlimited discretion. Policy #14, p. 149-150, is another concise legislation. example of uncertainty since it require developments '"near" historic In summary, the NOAA impact statement has not, in our opinion, districts to have minimum visual impacts; the accompanying text would apply adequately considered the impact of CZM policies on the siting of new this policy to properties "deemed eligible" to be designated historic industrial facilities such as power plants. Such issues as the implementation districts. of the policies, the impact on non-maritime facilities of prohibiting pre- 7. The Recreation policies (e.g., Policy #27, p. 215) call for minimization emption of maritime-dependent facilities, and the possibility of mitigating of adverse impacts for developments '"near" recreation areas. Again this is potential impacts by way of engineering solutionsare not addressed". uncertain and vague and leaves a developer without guidance, uncertain and vague d leaves a developer without guidance10. In our judgment the CZM Plan thus fails in one of the state requirements 8. The DEIS acknowleges that about twenty-one of the policies in the Plan of the DEIS, as stated on page 1-3. The policies, standards, objectives and are unenforceable for consistency purposes. (We question the legality and criteria are not articulated clearly and are not sufficiently specific to enforceability of some of the seventeen other policies). Even if the identify who will be affected and how, nor do they provide a clear sense of enabling regulation is limited to enforceable policies, we strongly object direction and predictability to decision makers. to the inclusion in the Plan of unenforceable policies or standards. To /ZN /^ . XC.t $/4 C onnda~ v. .'7TT S. / Z�A .1," a'.u-H November 29, 1977 TO: FROM: Director Eric E. VanLoon Donald O. Tracy, 4 Spooner St., Plymouth Coastal Zone lManagellment CZ.M. Citizen Advisory Vember 100 Cambridge Street Plymouth Bay 7Region Boston, VaFsachusetts 02202 Representing Plymouth SportsmenASAL SUI5;F:CT: C.Z.M. Comments We feel the proposed Massachusetts Coastal Zone Management Program should receive approval and be scheduled to receive Federal inmplementation funding The seers of the Massachuse tts Shellfish Officers' Association belrnnllg April ], 1978. dho manage and enforce all marine laws in the coastal zone areas of each coastal city and town throughout the Coranonwealth, are very con- I have attended many meetlre-s over the past three years and the dedicated jcerned over the possible loss of management of our bays and coastal efforts in planning the prn.;ram by the various committees, along with public 'zones within the three mile limit. participation and involvelm :t, makes this program a very acceptable issue.s s ss As 13X>; of our shellfish industry is derived from the coastal The program is long overdue and needed in many areas. The Plymouth Bay Area zone areas, we insist on preserving the authority to contribute to is a prime place where hell is needed at once. decisions affecting them. We are not aware of any other department that is knowledgeable of the amount of marine life existing in our The natural resources in tl' Plymouth nay Area have been depleted over the coastal zores and what areas need protection. Also, we are almost years where there is no loltger a healthy economy. Polution and contamintlon solely responsible for the management of these areas as far as marine has taken over where once tlhere was a healthy econoniy in the commercial aJnd life industry is concerned. recreational fisheries. ll"re are many projects within the program that need immediate help and priority funding mlay be a problem when the progrram is im- We feel strongly that we should be able to contribute our know- plenlelted. ledge and background to any persons or agency proposing laws or plans that will affect our coastal zones before they are established and cause The0 C.Z.1, program as outlined in Volure I covers seven policy a:lerna nld us to lose most of our fishing industry. We should also be allowed to conuirunity officials will finld most all problem aress have been included in participate in matters pertaining to the approval or disapproval of all the program. permit activities, etc. TIME - is the rost illmportntrli, factor in ' lhe accepinnce of the C.Z.. prolrpn. We are,, therefore, definitely in favor of local control in cooper- It may be conpared to the TI.D.T. crisis and if action is not taken at thin ation with Coastal Zone Management. time, instead of awnkelling IC, a "Eilent Spring", we will find ourselves surrounded by "Elilent at'Vrl;" Joseph Al".eida Joseph Almeida *'k Shellfish Constable We urge the nplrovnl snd acreptalnce of the program at the earliest possible Sec.-Treasurer, M.S.O.A. date. JA: sg Copy to: Lit. M. M rPylrS/d:: p] ynull t. }P'iri sr qilln Cl1t , . / P1yoouli t 1) "lrd of Sel t.-;te: PRplrernt;, t.ive Alfred Aia!O d,i 3d;4 4 DVII Testimony - Support of Mass. CZM Program 2 November 22, 1977 The natural systems which make up the coastal zone are fragile--they need protection. They serve several important functions in their undisturbed state. CONSERVATION LINCOLN. MASSACHUSETTS01773 TEL. 617259-9500 Gosselink, Odum, and Popel estimate that the work done by the marshlands and RESEARCH estuaries of the South Atlantic and Gulf coasts is worth as much as $82,000 per November 22, 1977 acre. This high value represents an estimate of what man would have to pay in Testimony of Deborah V. Howard, Director of Environmental Affairs, Massachusetts terms of the value of the useful work of an acre of estuary should it not be Audubon Society, in support of the Massachusetts Coastal Zone Management Program. available to do this work. Similar values can be developed for Massachusetts estuaries. Filled for development, Massachusetts marshes are probably worth, on My. name is Deborah V. Howard, and I am the Director of Environmental Affairs for average, a couple thousand dollars an acre. the Massachusetts Audubon Society, a non-profit environmental and conservation organization founded in 1896 for the purposes of conservation, education, and The Coastal Zone Management Program responds to the need to protect the coastal research. Today the Society has 25,000 members--about 22,000 of them residing in zone and to make rational allocations of its resources with 38 policies, developed Massachusetts-and holds 9,000 acres of open space in sanctuaries which are open over many months of consultation with the U. S. Department of Commerce, local to the general public. officials, tradespeople, concerned citizens, and a myrid of special interest groups focused on the coastal zone. These policies reflect the need to allocate the We appear today to support Massachusetts' Costal Zone Management Program as a resources along our coastline, to protect certain critical and particularly fragile vehicle for rational land use planning. areas, and to respond to the concerns of coastal communities for the needs of their citizens. Fifteen of these policies are directly enforceable through existing Massachusetts coastal zone is finite. It is important to Massachusetts for the laws; some are advisory in nature, setting out desirable directions, issues to historic, economic, aesthetic, and recreational amenities it provides. Our be considered and resources to be given special treatment. Together, these 38 approximately 1,200 miles of tidal shoreline, including islands, bays, and the policies provide a minimum framework of law with which to protect our coastline estuarine areas of rivers, support an awesome array of interests, activities, and and a number of goals for the future. resources. Consider the following: Massachusetts total land area is slightly more than 5 million acres; the coastal zone, consisting of land (much of it inter- I would like to comment on specific criticisms which have been leveled at the tidal) and water comprising estuaries and their associated lands, makes up less Massachusetts Coastal Zone Management (CZM) Program. than 10 percent of that land area--about 580,000 acres. Forty percent of our lGosselink, J. G., E. P. Odum, and R. M. Pope. The Value of the Tidal Marsh. people live in the coastal zone--Cape Cod alone has accumulated 6,000 new residents Goslink J E. P. dum for and Resourcese Louisiana St Publication No. LSU-SC-74-03, Center for Wetland Resources, Louisiana State University, Baton Rouge, LA. 1974. annually sin,:t 1970--and abouthalf our tourist revenue is generated there., DVH Testimony - Support of Mass. CZM Program -; - 3 DVH Testimony - Support of Mass. CZM Program 4 November 22, 1977 - November 22, 1977 The first is that it will create a super secretariat, could give the Secretary What the plan does is to set out in one place, in an integrated fashion, vast powers, and will create a new bureaucracy. desirable policies for the management of the coastal zone. It provides the administrative mechanism for coordinating activities in this fragile area, and One of our concerns, originally, was that, using only existing statutes and the it provides money and therefore people to assist local communities to make coordinating regulations of the Secretary under Chapter 21A, the Program would intellegent decisions about what shall and what shall not occur in the Massachusetts not provide strong enough protection for Massachusetts coastal zone. The plan coastal zone, involves no override of local zoning; the plan does not give the Secretary of Environmental Affairs any power other than that now available to her to resolve A second critisim of the CZM plan is that it will interferewith the constitutional conflict, to implement programs, and to coordinate the activities of her agencies right of Massachusetts coastal communities to make decisions about their future: to the extent now permitted by law; the plan leaves to the Energy Facilities Siting home rule. Massachusetts has about 30,000 acres of salt marsh, dunes, shellfish Council the ultimate authority to determine the location of future energy facili- flats, etc., already protected by existing legislation (the Coastal Wetlands ties; the plan provides as the major protective mechanisms for Areas for Protection Restriction Act); this Act, while administered at the state level, has been and Restoration I) that they be declared (after due process) areas of critical conducted-n close coordination with citizens and officials at the local level for environmental concern under the Massachusetts Environmental Policy Act (MEPA), several years. Its constitutionality has not been an issue. It is this law which simply removes the categorial exemption provision under MEPA and requires which CZM will use to continue to protect fragile coastal areas; another 40,000 an Environmental Impact Report (EIR) if the impact of a proposed action is deemed acres are subject to the Wetlands Protection Act, administered at the local level significant, and 2) that the restrictions imposed under the Wetlands Protection by Conservation Commissions. The CZM plan proposes to further protect by designa- Act and/or Wetlands Restriction Act or other applicable statutes he implemented. tion as Areas for Protection and Restoration (APR's) approximately 50,000 acres of very special fragile, unspoiled, and/or productive land and water. This is In short, this plan is no super dreadnought, designed to lay waste to developers less than I percent of Massachusetts land. Much of this land and water is already dreams in our coastal zone, but rather a carefully wrought network of existing subject to the protection of both the Wetlands Protection and the Wetlands authorities bound together in the framework of the Secretary's powers under Restriction Acts; some of it is already publically owned and protected through Chapter 21A. Some environmentalists have argued that it does not do enough. I federal, state, and local ownership. For example, Sandy Neck, Barnstable, (a make a strong case that it will provide better for coherent decisions in the proposed APR) has long been recognized by residents of that area as a unique area coastal zone and that it will do so with a minimum of additional red tape and worthy of special consideration. Much of the area has already been purchased by state interference. the towns of Sandwich and Barnstable so that they would be able to use it, enjoy 'r0 it, and ydt retain ft'in its-unspoiled condition. 3". DV Testimony - Support of Mass. CZH Program 5 - DV Testimony - Support of Mass. CZH Program 6 November 22, 1977 November 22, 1977 An additional opportunity for input at the local level will be provided by the package of protective legislation, regulations, and studies which would go a long Advisory Councils to be established ia each coastal region and on which will sit way to protect Massachusetts coastline from the adverse effects of OCS energy representatives from every community in that region. development. Some of the parts of this package were the OCS Lands Act Amendments (successfully scuttled lastmonth by oil industry pressure), oil liability legisla- A third criticism is that the Program document is not balanced. tion (in Massachusetts and Washington, still tied up in the respective legislatures), revised tanker safety standards (still on the drawing board), new DO regulations The federal CZM Act was not intended as a "balanced" statute. It was passed in for lease sales (the authority for one of which is being challenged by the oil response to the nationwide concern that the United States was rapidly degrading industry), and a Coastal Zone Management Plan which would require consistency by the coastal zone and eliminating those values for which it is so important. The OCS developers. This is an important part of our total program for dealing with emphasis of the Program is cooperative and consultative. It is to allocate OCS development. The 1976 amendments to the Coastal Zone Management Act affirm an rationally demands for the coastal resource, while protecting those portions of important condition for approval of exploration, development, and production plans. it which are fragile, unique, or specially valuable in their natural state. I They explicitly apply the law's consistency requirements to OCS plans, which means quote from the Sixth Annual Report of the Council on Environmental Quality: that a state must first certify that the plans are consistent with its coastal zone management program before any federal permits may be issued to carry them out. /IThe Coastal Zone Management Act provides money to/ help the states The Secretary of Commerce can override a state's disapproval, but only if he finds to inventory their valuable features--fragile natural areas, essential the OCS plan consistent with the objectives of the law or otherwise necessary in fish and wildlife habitats, historic places, prime beaches and other the interest of national security. The CZM plan will also provide technical open spaces, and settled communities; to establish priorities for land assistance and planning money so that coastal communities will have a better chance and water uses; and to plan for natural resource protection and orderly to direct OCS shore-based facilities toward existing developed areas and away development, keeping in mind national as well as local and regional from unsuitable ones. needs. For this and the other reasons already stated, we look forward to the timely approval Finally I would like to say something about the CZM plan and the imminent OCS of Massachusetts' CZH Plan in early winter 1978, development off our coast. Thank you. When we contemplated development of the OCS off our coastline some months ago, we were assured that by the time the leases were sold we would have in place a 3(ff MASSALCHUSETTS- PORT AUTHORITY Massport has proposed the construction of a consolidated container terminal at the site of the former Naval Annex in %4ASSPORT STATEMENT TO BE DELIVERED AT PUBLIC HEARING South Boston. This proposa' - 'onsistent with the CZr plan. ON DRAFT ENVIRONMENTAL IMPACT STATEMENT ON THE CZM PLAN, NOVEMBER 22, 1977 If the CZM plan is implemen it should simplify what is now an extremely complex mu n-st , environs al Massport welcomes the opportunity to comment on some aspects permitting process and expedite development projects stch as of the Coastal Zone Management Plan for Boston Harbor at this this proposed port facility. public hearing. The plan is compatible with our plans for the We also hope that the CZM plan and process will encourage future of. the airport, seaport and Boston Fish Pier, and with more coordinated and comprehensive planning of the Boston Harbor our policy regarding the re-use of the East Boston Piers for area. There are, of course, issues of implementation which will recreational, residential or other purposes related to the East arise as the process progresses; however, we feel on bslance Boston community. that the plan is entirely compatible with the continue. growth would like, in particular, to comment on the plan's Port of the Port of Boston which is so important to the Cit% and the and Harbors Policies as they affect developed port areas of the Commonwealth and, in this respect, will contribute to both the Commonwealth such as Boston Harbor. economic as well as environmental well-being of the recion. As a public authority charged with encouraging the devel- opment and growth of maritime commerce at the Port of Boston, Massport is, of course, concerned that the importance of the port to the state's.economv be recognized and that its ability to grow with the economy be assured. We welcome the CZM plan's recog- nition of the unique relationship between maritime shipping and waterfront property uses and its recognition that expansion of maritime shipping operations and related maritime development is desirable and will be encouraged and given development priority in existing port areas. A strength of the CZM plan is that it recognizes the importance of such growth and strikes a balance between economic development needs and environmental quality concerns. 3$0 PAGE 2 SPEECI BYDEANOHRLN_A LIaEE V IRONMENAL _IEMPACT STATIEMENT FE ARINGFR_TILE hZLSSACMUSETTS COASTAL ZONE MANAGEMENT ELANL NOVEMBER 2 _ 7HE MIT SEA GRANT PROGRAM SHARES MANY OF THE CONCERNS ADDRESSED BY THE COASTAL ZONE MANAGEMENT PLAN, AND INDEED, WE HAVE WORKED SECRETARY MURPHY, DIRECTOR VAN LOON, LADIES AND GENTLEMEN -- WITH THE MASSACHUSETTS OFFICE OF CZM SINCE ITS INCEPTION* A FACULTY REPRESENTATIVE OF THE MIT SEA GRANT PROGRAM HAS BEEN AN AS DIRECTOR OF THE MIT SEA GRANT PROGRAM, I AM HONORED TO HAVE APPOINTEE TO THE GOVERNOR'S TASK FORCE ON COASTAL RESOURCES SINCE IT THIS OPPORTUNITY TO SPEAK AT TODAY'S HEARING ON THE DRAFT ENVIRON- WAS ORGANIZED. 7He E MIT SEA GRANT COMMUNICATIONS OFFICER WAS A MENTAL IMPACT STATEMENT IN SUPPORT OF THE MASSACHUSETTS COASTAL MEMBER OF THE TASK FORCE'S PUBLIC PARTICIPATION COMMITTEE THROUGH- ZONE MANAGEMENT PLAN. OUT ITS TENURE. DE WORKED WITH THE CZM STAFF TO PREPARE CZM' S FIRST PUBLIC INFORMATION BROCHURE. SINCE ITS FOUNDING BY CONGRESS IN 1966j THE NATIONAL SEA GRANT PROGRAM HAS ENCOURAGED AND DEVELOPED APPLIED RESEARCH AND EDUCATION MIT SEA GRANT HAS NOT ONLY BEEN PLEASED TO HELP DEVELOP THE PLAN PROJECTS TOWARD THE WISE USE OF OUR VALUABLE MARINE RESOURCES� NO THE UNIVERSITIES IN THE SEA GRANT NETWORK WORK TO TRANSMIT BUT HAS BENEFITED FROM THE ASSOCIATION AS WELL. .jN THE COURSE OF AND THE UNIVERSITIES IN THE SEA GRANT NETWORK WORK TO TRANSMIT RESEARCH AND ADVISORY PROJECTS RELATED TO THE DEVELOPMENT AND MANAGE- THE RESULTS OF THEIR MARINE RELATED RESEARCH, SPONSORED BOTH MENT OF THE COASTAL ZONE AND ITS RESOURCES, FREQUENTLY, WE HAVE BY SEA GRANT AND OTHER INTERESTS, TO THE PEOPLE WHO NEED AND CAN CALLED UPON THE CZM STAFF FOR INFORMATION AND BACKGROUND. rHE APPLY THE RESULTS. CZM STAFF S WILLINGNESS TO HELP AND TO LISTEN TO THE CONCERNS FROM VERY EARLY IN THEAEA GRANTiL UNVRIYPORARGTU OOF COASTAL COMMUNITIES HAS SHOWN US THAT CZM IS SENSITIVE TOATHE Gc4�JA//4L FROM VERY EARLY IN THEASEA GRANT UNIVERSITY PROGRAM, RIGHT UP TO AN IMPONKT4N7' ENVIRONMENTAL -s,. NEEDS OF MASSACHUSETTS CITIZENS AND INDUSTRY. THE PRESENT, COASTAL ZONE MANAGEMENT HAS BEEN S - RESEARCH AND ADVISORY INTEREST& COASTAL ZONE MANAGEMENT IS VIEWED BY SEA _-TH- IS A MANAGEMlS SYSTEM SEEKS TO BALANCE THE SEA GRANT HAS SPONSORED A GROWING SERIES OF COASTAL PLANNING STUDIES, GRANT AS A MANAGEMENT SYSTEM. HIS SYSTEM SEEKS TO BALANCE THE SEVERAL OF WHICH SPECIFICALLY ADDRESS ISSUES OF COASTAL ZONE RESOURCE MUCH NEEDED ECONOMIC DEVELOPMENT OF COASTAL RESOURCES WITH THE ( eA retM wala P:AF/ tR To SJS). SOCIAL AND ENVIRONMENTAL VALUES OF LIFE AND WITH CONSERVATION NEEDSECETY WE PUBISHED STUDIES OF THE BOSTO SOUTH FOR THE FUTURE. X [ --1i1tH4ESIt w TES uEF 'DRD BALA,4CGE SHORE AND OF GLOUCESTER, AND A PLANNING PRIMER, PARABLE BEACH* A FOLLowU-lp A REPORT ON VTIeFr*9Y GLOUCESTER'S COAST, AN ADDITION TO THE A~ 'TH. KE/ 'C ,LJCCe5S-A EARLIER PROJECT, IS ON THE PRESSES. AND AN MIT STUDY OF REDEVELOP- MENT PROSPECTS FOR LYNN HARBOR LEAD TO CLOSE COOPERATION BETWEEN 371 PAGE 3 PAGE 4 LYNN AND THE CZM TEAM.,HE SECTION OF THEAPLAN THAT CONSIDERS LYNN LYNPONrT ELJ ADHC TASTNFHIL TACSE LNWHEN APPROVED BY THE UNITED STATES SECRETAR OF COMMERCE) FEDERAL SPECIFICALLY ARELFECTS MANY HOURS OF DISCUSSION THAT GREW FROM SPECIFICALL~RELFECTS MANY HOURS OF DISCUSSION THAT GREW FROM PROGRAMS WHICH AFFECT THE STATE COASTAL ARE S, MUST COMPLY WITH THE THIS SEA GRANT PROJECT. PROVISIONS OF -.C STATE PLAN. {HIS CAN BE POWERFUL VOICE FOR MASSACHUSETTS Iii -UTURE OFFSHORE DEVELOPMEN S. THESE AND OTHER STUDIES, SUCH AS OUR GEORGE'S BANK PETROLFUM STUDY' PROJECTS ON OFFSHORE STRUCTURE DEVELOPMENTS' OF SEDIMENT _,VD v& -.~'Ut' THROUGH THE MASSACHUSETTS COASTAL ZONE MANA EMENT PROGRAM, THE TRANSPORT AND COASTAL EROSIONOAND OF OIL SLICK CONTAINMENTAARE RESOURCES THAT SERVE BUSINESS AND COMMERCE, RECREATION, HOUSING ALL KEYED TO CRUCIAL ELEMENTS OF COASTAL RESOURCE DEVELOPMENT AND TOURISM CAN BE FULLY USED WHILE ALSO BE NG CONSERVED FOR THE AND MANAGEMENTS 8EA GRANT RESEARCH STRIVES TOWARD WISE DEVELOPMENT RE.LL~! FUTURE, 'fEACAN ASK NO MORE THAN THAT. E MIT SEA GRANT PROGRAM OF COASTAL RESOURCES THAT WILL MAKE NEW ENGLAND'S COASTAL INDUSTRIES LOOKS FORWARD TO CONTINUED INTERACTION WITH THE STATE OFFICE OF STRONG AND PROFITABLE. COASTAL ZONE MANAGEMENT AND OTHER STATE OFF CES, WITH COASTAL COMMUNITIES, AND WITH COASTAL BUSINESS AND NDUSTRIES XAND I I BELIEVE THE CZM PLAN REFLECTS A SOLID UNDERSTANDING OF OUR COMPLEX COMMEND THE CZM STAFF AND ALL SUPPORTING PA TICIPANTS FROM FRAGILE AND PRODUCTIVE COASTAL ZONE, JT IS NOT A PANACEA FOR INDUSTRY, ACADEMIA AND THE PUBLIC FOR THE P AN'S DEVELOPMENT, ALL PROBLEMS, BUT NEITHER IS IT A FINAL PRODUCT, NO, THIS PLAN MUST EVOLVE AND IMPROVE OVER TIME, BECOMING THE MANAGEMENT SYSTEM AS A CITIZEN OF THE COMMONWEALTHj I RECOMMEN ITS APPROVAL AND IT IS INTENDED TO BE z 1) Cop - g P-- M-LA5$XC5I'U]S"tS , IMPLEMENTATION. THROUGH OPEN COMMUNICATION AND UNIFORM APPLICATION OF EXISTING THANK YOU. LAWS AND REGULATIONS, I BELIEVE ALL COASTAL ZONE INTERESTS CAN BUILD ON THE PLAN'S STRENGTHS AND COMPENSATE FOR ITS LIMITATIONS. THE PLAN ENCOURAGES US TO REDEVELOP HARBORS AND PORTS. fT PROMOTES WATER-DEPENDENT INDUSTRIAL ACTIVITY; AND IT SETS A STANDARD FOR IMPROVING WATER QUALITY, 'UT ABOVE ALL, IT GIVES THE CITIZENS OF MASSACHUSETTS A PLANNED SET OF CRITERIA AGAINST WHICH TO MEASURE A PROJECT OR ACTION. WE CARE BOSTON ) ~~~~ HARBOR -~~~ L ~ ~ ~ ~ ~ ~ASSOCIATES ~2 - ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~22" Leis Whertis 2 - ~~~~ ~~ - - - --- I Momachusitto 02110 ~~~~~~~~~~~~~~~~~~~~~~~~~ ~~ i~~~~ '~~~ (617) 227-6730~61) 27-72 Aithur Lone Marten S. Oi1,-n ;TATE1,!NT OF T11L BOSTON HARBOR ASSOCIATES Fmt Vice P'Idoat New England Aquarium IAT TFlE P13BLIC ITEARTNr Joh. W. Sears November 22, 1977 5Se-.d Vi,.o P-,ioidra Speaking for the Massachusetts Beach Buggy Association, I ON TI iE MASSACITIISETTS COASTAL ZONE PROGRAM O11"r F. Am-s wholeheartedly endorse the Draft Environmental Impact Statement NOVEmBER 22, 1977 Twue for the draft Coastal Zone Management Program. -A . OhDi-, floOen 1. Sp~ulding 4i. AO,5S-ntr As a frequent visitor to the coast, over a period of several Li,, Baka I am John S. Ames. executive director of years, I have noted the lack of a uniform plan relative to "l-~n,tt~ the Boston Barber Associates, an organization use and preservatIon of our coastal resources. Rl~F Ak formed in 1973 because people sac; a great potential "Ia5 ar,, 5 in the Ilarbor and were distressed about the Supporting a C.Z.M. Program could perhaps impose future i, oa cmexyofiue edtharyofvr10 regulations and rules on our form of recreation. We are, W A opeiyo su, n h ra foe 0 however, cognizant of the fact that equitable controls-- IdithG I5~A~.,Oi jurisdict~ions dealing with tisem. We had over within the guidelines of legitimate man and vehicle Impact 1~ '""- 380 acres of surplus federal property, 30 islinds studies--are desperately needed if we are to preserve our iaaa ~,in neced of special attention, and a sick port. coastal resource ecosystem for tomorrow. A Fay We looked to the Federal enactment of the Coastal I am sympathetic to the various Interests opposing a C.Z.M. .one Maaemn Atof172a asrogra f oe evrsSsrsr Program. However, overriding this sympathy is my concern ., IKalonFor our part, TI3IIA has; ~aojoo~s~ ~that citizens throughout the Commonwealth should have an lasada, F-1a equal voice in formulating a needed coastal use plan, along ,L i te as LLOYD r moe.,. w t equitable ueprivileges. The recreating publicisptvpteinheGero'TskFc, entitled to this voice. ~~~~~~~~~~and the Adl Doe Ci tizon Advisory efforts- to COARFSPON ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~ls, .M~la, review C71,1 policies in reference to Boston GEaRCEL",SD, S ekn g as an Advisor to the New England Region Fishery , Ar Mlr Management Council, I note'llme- lack of communication between ilaElteI or.CCRPIES~cRE~or the various agencies involved in making the Fisheries Conser- askMjy-requested broader lublic participation in ENDs C. "OUG41No vation Act of 1976 totally workable. EM-phyh rceso itrrtigad ann TREAISUER I feel that the C.Z.M. Program I nolvd ~ecmentaIne fo this project JEAN T"FM15.AYPrga vovmtInti:sns.rn aaoua~oa., will enhar-.e its success. da; en, a SOE~~~~~~~~~~~~~oTIVE ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ h SER--S h ~ designed a blueprint for regulating and1 E CearAO sorni Summing ul- my comments, I wish to state that we all may have , , , , " rsoio otnhabrdvloen n 5,5010 ~~~~reservatirns relative to any federally mandated program, but ,d". 1'. Oaelrconservation patterned aftor the San for the safe of preserving our God-given coastal resources for i' nFacic xprec today, tome-rrow and forever, immediate positive action is H Y ni0.5- necessary. a;~~~~~~~~~ ~ ~~~~~~~~~~~ ~~~~, IN Sesn -d frankly, heen skepticlo thte strength Wd, . 16f~yoftemmrad ful'asalcg-md xftn urge oroarpt acceptanceof a C.Z.M. Program. ~l,- S-a-I legislation to accomplish the~ goals of C?'4. Sincerely yours for beach na. Cain Ty1o conservation and recreation, . jI lIao i~~~~~li ~~~~~Conrad F. Smith IS How St. W~oburn, MA 01801 Statement of TBtA, 11/22/77 -2- Statement of TBITA, 11/?2/77 -3- For example, it has recently become obvious to us that the haphazard method by which pier and bulkhead objective which can have real impact on the future of our lines are established. as well as the fragmented tideland coast. filling permit system, are areas where the existing mechanisms for managing the coast are not adequate. 3. Consistency - You will be developing a data base which will be critical to future decisions. We will be looking In view of this we seek ways to promote and support at your track record as the Massachusetts Audubon Society your efforts and to build confidence in the state's ability looked at the Wetlands decisions in 1975 for consistency. and right to help regions and localities protect and enhance the precious resource which we call coast, an incredibly 4. Cooriation - We recognize the value of memoranda of complex interface of land and water. understanding, but these are only pieces of paper unless the signatories sit down periodically as a council to jointly We urge federal acceptance of the Massachusetts program, address cases and work out a consensus approach. It is once state legislative support has been received. And we add essential, we are convinced, that you make time for the face this caution- Thougll federal approval may be a reel milestone to face council format. It is our experience, for example, in the stite's effort, the job of making it work, of getting the with the layers of federal, state and local agencies who,r- parts in gear, has only begun. Coastal Zone Management is an are chrged with water pollution control in Boston hlarbor on-going process cai:able of amendment. -We should not shy away that coordination is as much a people problem as a tyclini- from change. logical one. Memos are not enough. What are our expectations for the first year? I'd like 5. Centrali7at.on - Our suggestion to you is that you to look at them as f-ive C's should bring those agencies and arms committed to implementing the CZM program physically closer together. One that 1. Colhe ronav -. Let's find out together what the words comes to mind is the Division of Waterways, now at 100 "encouragc," "Xromote," "maximize," "consider," and "ensure" Nashua Street, which appears to be headed for a critical can mean. Thevre are only words until an actual situation role and should, we feel, be located at 100 Calmbridge Street. is encountered. We are pleased to learn that the L.egisl.ature is involving 2. Communication - Even with all your public hearings and itself responsibly in the program. Once the significance of the citizen advisory efforts, we need to open up the process Coastal Zone Management program is understood, the Tegislature further. Iow l1est can we have truly representative citizen can be a vitally constructive force and could serve to -:trengtbl�bn advisory councils and how can they be most effective? Land existing laws for 'tle benefit of the program. The promise of use decisions will nearly always arouse adversary positions. a Blue Ribbon Conumission which will review and comment on C%-M The CZMM process should not shy away from differences of regulations offers hope of another commitment, new to the progr;m. opinion. They should be welcomed and structured into the membership of the CAC's. Who represents? Elected officials, We congratulate the Federal Office of Coastal Zone Management community leaders, users of the harbor, bankers, developers, for their Draft ETS which puts the program in focus -rnd points environmentalists--there are many voices, as we have dis- the wy for finer tuning. Ile reiterate our hope that there wj"i.1 covered in the Boston Harbor Associates. We may disagree be federal approval at this juncture so that wce can continue the but once kwe have consensus, it is founded on a base wdhere process. everyone ha had their say. We urge broader outreach of The Monito.r ;,nd included in it listinngs of decisionu in the co-l-l'":i z na, in -:hicrll CZr has, particijpated withl the rationle for the d'cisi<n. We would lidke to know wh'-t we, the public, are doling or can do to aid in energy conservation,' D, sftate ' nd n-tional 33r(~~~~~~~~--'-',-'- -~~~~~~~~~~ff~~~yvr~ -2- 4,, L-~~- ~ 1., ~4~~4 A ~ ~ ~t- 7 ~~~~~~~~~~~~~~~~~~~~~~~~~~~aC- xl" 4l- / 2j JIA~~~~~~~~~~~~~r- C,- il "JnA~~~~~J T'4A4 IZ( - L ~ - -~~~ ~rAv h4 ~~~~/ ~ ~ ~ ~ ~ ~ ~ Aru I 'a~%i /' I~~~~~~~~~~~~~~&~ - 4 1 C ~ ~ . L~~ yT/4 l~~~~~t FIJI~~~~~~~~~~ 7~~~~~~2(r .A4 V~r7Zo _ Fz~A1s ~ 6~/~ 2 -z~~7~~t7~Z-4 -~~~~~~~~~P - 0% ya F-4- ,-J oe,, ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 2~4 7~Q/~ ~~ a: E~se ~~~~~-t~~~~L-C~~~~~~.~ $4 x~~~~~~~~~ 74 C ~~~~~~~~~~~~~~~~~~~~~~~~lI- ~~~~~~~~~~~~~~~~~~~~l ~ ' el, 2 kL TALE 4 ' A 2 -y f>rfi '4 -'--f /'Wt- v- 4A4 - - dJ ____ 4) A-l�5-Z1$' 2Z( IS4r. - A 4 -' . 3q19 ofc_ ao M' + t BOSTON HARBOR CITIZENS' ADVISORY COMMITTEE East ostonl Chamber of Commerce Ectst Box 189 - EAST BOSTON, MASSACIfUSarTS 02128 .JVISE THE U.S. ENVIRONMENTAL PROTECTION AGENCY (REGION I) ON BOSTON HARBOR RELATED PROJECTS ,IJP..J D L~ydaa R. Goodhue, Chairperson c/o Bernard R. Sacks, Committee Coordinator /(4i'' -4Y..44 ,ACLI ~. /~J Shirley Brown, Vice Chairperson U.S. Environmental Protection Agency oae nnnw anszmi . | , .1{ LEdward F. Phelan, Secretary John F. Kennedy Federal Building pRAn~sDa A.L.~.. A .d j3 ij Boston, MA 02203 tRoU LADD / November 22, 1977 STAT1ME'TB TO THE MASSACHUSEITS COASTAL ZONE I'- AGEI4E Tr PROGRAM PUBLIC tHESLG,. .d Vice PrNident Eli ENGIANI AQUARIWU, BOCSTON, November 22, 1977. LOUls AMENZ1o TreGsurerW W I am Wydia R. Goodhue, CWairman of the EPA's Boston Harbor Citizens' Advisory Committee. seOcvar'y COASTAL ZONE MANAGEMENT We have had a sustained liaison with the C24 and we have- appreciated havinc a member of -- Evelyn F. Murphy, Secretary 'whr staff on our committee. We hope it continues. Mluch of what is in this statement Bard ot irtorf: has already been said during committee discussions, and you may already know of our RosrBT BUCKLEY concerns. SAL LONaMO Dear Madame; re: Deliberations on the subject JOSP SNCHEZ of Coastal Zones. 1. We are glad that Boston Harbor is to be given highest priority in funding as a PAn CPWs special SAMI. It deserves all the priority it can get as the Commonwealth's principal pert and Greater Boston's valuable source of recreation and open space. As such, My name is Richard Dell Orfano, I represent myself as Vice priority should be given to activities which need access to the Earbor. lie agree that President of the East Boston Chamber of Commerce and Chairman of federally-funded projects of the future should be consistent with the. State CZmi nan. the Industrial and Commercial Planning Committee, a segment of the Chamber. 2. We also feel that there is great need for more data and information. There is much that is not known about Boston Harbor and anything that can be done to get hard facts My mission here is to request that in your deliberations about the condition ef the harbor, what causes it and what will cure it whould be relative to streamlining and unifying existing environmental reg- given funding. ulations, that your thoughts and deliberations not be cluttered by special interest groups. I believe as do most people who are 3. Regarding public lprticipation in the Plan, we were disappointed that the Boston concerned about the future development of our coastal areas', that Harbor area was not one which had a CAC, although it had originally been planned. the highest and best use for the zones under consideration should The Ad Hoc Committee's decision-making was not public enough, although the various have first priority during the deliberations which will take place public meetings late in the process were, we could see, an attempt to rectify that in the not too distant future. More specifically, sites that are situation. Can we be assured that Boston Harbor will, indeed, have one of the ten or were water related industry, should in the opinion of the Chamber, Coastal Region CACs and that it will have a representative on the Statewide Advisory remain as such. These areas' should remain within the tax rolls of Boardt the communities of which they are an integral part for obvious reasons. 4. I want to mention two specific concerns about the harbor: a. To further the harbor's recreational opportunities, you have advocated Industrial and commercial enterprises as you know, create more boat ramps and launching sites. Fine. But these should be coupled with several many needed jobs from which much needed taxes are generated. We call sanitary stations for the handling of toilet waste - at several scattered sites. upon you to perform your task in a manner most deliberate and fair b. Finally, Deer Island is one of the treasures of Boston Harbor - with to all concerned. good beaches, a superb view of the city and the islands, and access to the land. It has been proposed for three functions: an expanded prison; reclamation of the outer Your promise of no new layers of state bureaucracy is refre- portion for recreation as part of the bAPC Boston Harbor Islands Plan; an expanded shing. The business man is even now inundated with an inordinate sewage treatment facility as called for under PL92-500. The island does not have space amount of regulation at this moment which is couterproductive and for all three, nor are all three appropriate for the location. The three functions, creates a loss of incentive to remain or expand the business in furthermore, are not compatible with each other. However, the island could support which he or she is now engaged and precludes the start up of add- two of these functions and we believe that the two most comratible with the Inland itional industrial or commercial entities. and with each other are recreation and sewage treatment. These two .re dependent upon being near the harbor. We think that Deer Island would be an ideal model for You are uroed to call upon us should you desire input from such coordination. time to time when your queries relate to any part of the Coastal Zone and more specifically whline of East Boston forms a part of your agenda. esident 382 SiIERRA CLU3 - New EnGLand Chaptevr zoning b,-las, subdivision controls, etc. to conform to the ICZM) program... 3 JOY STREET, ROOM t12. BOSTON. MaSSACHUSETTS 02108 * 617-227-5339 The active leadership of loca, offticials i ill determine the ultimate fate of the plan." We hope that this leadership will be forthcoming. STATEMET TF BIRGE ALBRICGHT, CH.AIiAlN, MASSACHUSETTS STATE COUNCIL, , 2. Our second reservation concerns the regulations. As it stands now, SIERRA CLUB the Program consists only of 38 policies and several memoranda of understanding which are unenforceable by themselves. The only things that are enforceable are RE DRAFT-ENVIRONMENTAL IMF-ACT STATE\MENT, MASSACHUSETTS COASTAL Z014E MANAGE- the existing statutes on which the policies are based and the existing regulations MiENT PROGRA'II (NOVEMABER 2, 1977) under these statutes. The only things that are both new and enforceable in the Program are the new or revised regulations which must be adopted to implement the policies. Specifically, what are needed are regulations applicable to the The Sierra Club supports 'the 38 policies of the Coastal Zone Management whole program to be issued by the Secretary of Environmental Affairs under Program and the priorities they represent. They reflect the fact that the G.L.c. 21A and regulations implementing the Wetlands Protection Act I G.L.c. Coastal Zone is a unique 'rea, con taining resources which must be protected 131 s.401, the Waterways Program I G.L.c. 91, ss. 1-591, and the Ozean and enhanced for this and succeeding generations. Indeed, the rights of the Sanctuaries Acts I G.L.c. 132 A, ss. 13-17). Also, regulations are needed public in the intertidal area of the coastline, commonly known as the to implement the memorandum of understanding between the Energy Facilities "foreshore", are.deeply rooted in the past, and public rights in unhindered Siting Council and the Executive Office of Environmentai Affairs. navigation and fishing were protected by Roman law. Free access to navigable waters and the oreshore was a right guaranteed to every Roman citizen. We feel that these regulatio ns are an integral part o f the Program as submitte nd that, ideally, they should have been part of the Program as submitted to These public rfights- In the seashore are known generally as the "Public Washington. We recognize, however, that there may have been practical reasons Trust Doctrine." In Massachusetts, this doctrine Is reflected in the preventing this. In any event, we understand that the 21A regulations will Colonial Ordinance of 1647 which gives the pubitc the rights of fishing, be promulgated on or about February 23, 1978 and that the other regulations fowling and navigation in the area between high and low tide and also gives will be thcong before the end o the fit y of the Programs operation. them the right of access to Great Ponds. We urge that this schedule be strictly adhered to. In recent years, it has been recognized that the rights of the public extend As stated above, we support the CZU Program, because we like the policies beyond the foreshore. For example, It is now accepted that wetlands have a and we feel it has the potential to become more effective. As stated in the value which precludes their being entirely at the disposal of their individual Progran document, it is intended to be an "evolving program" (p. 370). The owners. See Note, "Coastal Wetlands in New England," 52 Boston U.L. Rev. Program can evolve in several ways. First, it can evolve through the 724 11972). This recognition led to the passage, In Massachusetts, of the adoption of strong regulations to Implement it. Second, it can evolve through Weflands Restriction Acts, which form the basis of Policy I of the CZM Program. strong leadership on the part of officials in coastal zone municipalities. Third, it can evolve through the activities of the proposed Statewide Advisory The Coastal Zone Management Act of 1972 recognizes that the public has Group and the Citizen Advisory Councils. These bodies' will have a number of rights in the coastal zone in its call for "wise use of the land and water functions, but perhaps the most important is the educational function. No resources" therein. 16 USC s. 1452. To encourage this wise use, the federal Program will work, unless it Is accepted by a majority of the citizens. We government has provided funding to the coastal states for the preparation of hope, therefore, that a major activity of those connected with the Program plans or "management programs" for the coastal zone. The question before will be the fostering of *a "coastaL ethic" among not only residents of the us now is whether the Massachusetts CZM Program fulfills the criteria of the coastal zone but all our citizens. federal Act. Although the Program is not as strong as we would like, we support its approval, because we feel that is has the potential to become more effective- in the future. First, I will state our reservations about the Program: I. The Program deals only with projects whith fall within the scope of existing laws such as the wetlands statutes and projects which are either undertaken by the state or require state funding or a state permit. This leaves many developments to be rsgulated only by local zoning by-laws, which are often more responsive to property tax pressures than environmental consederations. We note that the Commonwealth's recent Growth Policy Report recommends that coastal coimmunities be encouraged "to revise local policies, YsrTEM coMPAnY personally have either lived or worked in many countries where there was an insufficient power supply. Business stagnated New concerns and ideas EUA Service Corporation could not be implemented. I cringe at even this thought of it happening 99 igh Stree,. Suie 2B30, BoslonMa$achusels 02110 Telephone f617) 3S7-9590 here. Addre, all coresondenei to P.O. Bo. 2333. Boston. Massthuetts 02107 What does this have to do with CZM? Everything. The Massachusetts Program reads well and smoothly but it is loaded with roadblocks which would November 10, 1977 prevent development of new power plants in the coastal zone - where many of the future sites lie. I direct your attention particularly to Policies 1, 2, 8 and 17. You cannot construct a power Ilant wi:h these policies. Policy 31 requires examination of an alternate inland site. 'Jhy transfer admittedly difficult problems elsewhere, at an extra delay of 3 years, at an additional ~~~~~~Evelyn F. Murphy, Secret~~ary ~cost of several million dollars, to try and make the rtquired environmental E velyn O. Murphy, S ecre tary tests on land you don't own and then after declaring interest in an alternate Executive Office of Environmental Affairs site, try and buy it at a reasonable price. Wto pays? The consumer. Do 100 Cambridge Street you want to be charged with increasing electric rates? That is just one Boston, MA. 02202 black mark. Dear Ms. Murphy: We are not against CZU - only the way this Progranl is slanted. The Eastern Utilities Associates (EUA) is an electric utility holding willconsumer have to make accommodatio learns i live aelongside each other. Each part company ope-rating in the Commonwealth and the State of Rhode Island and fortable and reasonable lives - which can be done. has Montaup Electric Company, Fall River Electric Light Company and Brockton Edison Company as operating subsidiaries in Massachusetts. (Blackstone What do we suggest? We propose that J e CZM program be redrawn in Valley Electric in Rhoide Island). policies 1, 2, 8, 17 and 31 and elsewherei required 2o that those policies permit an orderly development of power pl ,a within reasonable and econo- We, at EUA, are apprehensive concerning the Coastal Zone Management mical environmental standards within the zone. None of the standards Program as proposed for the Commonwealth. Our concern focuses primarily should exceed federal guidelines which ar $ ready nariowly drawn. The CZM on the new roadblocks which would be thrown in the path of constructing Program should be positive and proclaim t * expanded Energy is necessary new electric generating facilities. Our three Massachusetts companies all to the well-being of New England and Massa setts in larticular. New have service areas located in the coastal zone. We have one older plant power plants are necessary. Where sites X be availalle within the coastal in the zone and own another site, presently undeveloped but under investi- zone which are economic and environmentalfyiouad, every effort will be gation for development, also located in the coastal zone. made to accommodate their construction witHSfh tie regulating guidelines of the Commonwealth. The utilities are not pirates to be defended against. The CZM Program as presently constituted would virtually prevent con- They are organizations which are social instrumants carrying out a specific struction of new electric power generating facilities and their associated function within the infrastructure of the natioi. For God's sake, let's transmission lines in the coastal zone. This constraint is of vital con- give them a hand. cern to the Commonwealth and the present administration which has designed the CZM Program. New England and the Commonwealth faces power curtailments and rationing We propose that a positive statement concern:ing energy be inserted in the in the 1980's. Because of long-lead times and other reasons, this crunch Summary, possibly after the first paragraph on Iage 31. Such a paragraph is irreversible. Power rationing will hit at industrial and commercial might read: customers as well as the residential ones. Curtailment means no industrial expansions and cuts on existing businesses. The result - widespread unemployment. New England has enough of that now. Do we want more? ENERGY The public refuses to believe these forecasts. Our public officials The Commonwealth of Massachusetts recognizes the continue need for brush them under the table to hide them as they are several years away, but development of energy production on all fronts. There is a strong cor- I assure you they are real. I can testify to the stultifying effect as I relation between the economic well-being of a society aid its efficient use of energy in all forms to turn the wheels of industry and commerce. -3- BEVERLY S11 ORELINE RiGI ITS The Coastal Zone Hanagem,!nt recognizes this exigency and fully supports ASSOCIATI ON the need to accommodate new power plants; refineries: sharf a; unloading facilities for all, synthetic natural gas, liquified natural gas, coal and all fuels as those requirements arise. CZM will study the coastal :~ . / ,Zone and provide for energy development within the zone in a manner that ~ ' 1ii~~M therein. 2 eebr . .Honorable Secretary, the points outlined in my letter are our major Mr. Eric E, Ilan Loon, Director concerns. We do have reservations about the legal points which have been COP-still Zone N&'nargement raised, lack of legislative approval, the setting of precedents for 3.00 Cambridge Street, similar actions by the Executive branch in the future and other points Boston, Mass. which have not been entirely resolved yet. We do wish to be on record specifically requesting the inclusion in the Summary of a very positive Dear Sir, statement as proposed above that provision will be made for energy development. As members of' the Advisory Committee of' the Lower North Shore area (and move specifically, Beverly, ) my husband, John Very truly yours, ~~~~and I wish to commend you, Mr. Matthew Connelly, 11s. Raehaei Cox, Very truly yours, M~~~I-s. !4argaret Reynol~s and all who. have helped to establish guide- / 1~~~~~~~~~* ~~~~lines anrO policies for ~the coastline, of Na~suechusetts. your * �iti,' /4~~~c'~~.--' efforts have been remarkably accomplished In every single diztaill and IAsneet. *Joihn B. GmeinerWeasasaeaelgovreinvlutnaduiizn Vice President Ve sasaeo ~ - ~~~~~~~~~one of' our, most precious natural resources -- our shor'elne. flow, after many meetings, reams of informatior, p.,pv~work, idcal J5~~~~~~:as .. ~~~~~~~~~~~and. requests, the Coustal Zone U una~cineilt Is establishing a way and means to contribute to he~nut an folow th'rough with a bee: WRHisson plan to better Impqrve Indu~bry and commerce as wN.1 as recreation A~~~~~~flaser ~~~~~~~~~~~~~~and conservation. E a ch area, in itself, so imps'#jtant Bou toda~y RF~innie as well as in the fixture. CEjurtis We congratulate Governor Dukakis and-his capable -secretary, DMcConaghy Ms. Evelyn Murphy ond each. of you. We complIment you for Includ- FKnippenberg Ing citizens of each town and city to participate In the program. flee ~~~~~~~~~~~~~~~~~(Personally, John and I feel privileged to have participated ini the basic discussions of problems, dicinions of. boundaries etc. and to have watched the whole concept develop to its fullness.) Coastal Zonec 14anagement can onl~y succeed; for It must be our legacly -toalfuuegnrtos Sincerely, B3t SAUGUS ACTION VOLUNTEERS FOR THE ENVIRONMENT 'ac. , 177 1 Saugus, Massachusetts 01906 November 14, 1977 (4 TOs Executive Office of Environmental Affairs Commonwealth of Massachusetts FROMs Saugus Action Volunteers for the Environment (SAVE) I Saugus, hass. 01906 &.ca) tLdoudrn REs November 14, 1977, Hearing on Coastal Zone Management Plan The Saugus Action Volunteers for the Environment (SAVE) are in full support of the implementation of the Coastal Zone Manage- Qail & M ar5 ment Plan for Massachusetts, released late in the summer after two -, and one-half years of careful work. Qoc_ Z''- We believe that over one thousand public planning sessions held (e during this time throughout the entire coastal area of Massachusetts made it possible for all interests to take part in the formulation of .L the plan, so that it does represent a wise allocation of our coastal - resources, balancing. ports and harbors, marine environment, visual DEC I 51 77 environment, coastal hazards, recreation, commercial development and energy needs. "'OASf'L Zf) il,' .lAlic.,';:jrT We are lparticularly pleased at the specific recommendations made for the Saugus Marshes, since our organization was formed nearly Sot, - five years ago with the "protection and preservation" of the marshes as our first priority. We fully endorse the implementation of all u ol -ep these recommendations and those made for the Saugus River, and believe most of the citizens of Saugus would be in agreement. We look forward to the time when the entire Massachusetts Coastal Zone Management Plan is a reality. Sincerely yours, Wallace lcKenzie, President 9 Hull Drive, Saugus 01906 1 WMcK/eb 38Lt, f}.9zh4 'F 0 P %.F * 1 I N V ,z t ' WATE RSHED e E~. Assocl ATION DeDa ~ ~ ~ ~Jcember 81 124 High Street, Ipswich, MA. 01938 Ms. Evelyn Murphy Secretary RECEIVED Department of Environmental Affairs December 14, 1977 100 Cambridge StreetEC 977 Boston, Massachusetts 02202 *EC 91977 Dear Ms. lbirphy: Evelyn Murphy COATL70fEM'.tlT Secretary of Environmental E r itufe!ldl The Essex County Greenbett Association would like to register Affairs wholehearted support for the Coastal plan set forth by your 100 Cambridge Street office of Massachusetts Coastal Zone Management. Boston, Massachusetts Attn:MEPA UNIT The two, and one-half years of study and planning have re- Re: Coastal Zone Management Program sulted in the first comprehensive inventory of coastal re- sources and a land use plan for the coast. It provides for the highest pnd best use of this fragile and limited coast- line. The plan is realistic and fair to all competing coastalr Secrery rph uses. It balances environmental concerns with development and energy siting according to the nature and definition of the The Boerd of Directors of IRWA voted at its meeting on December 10, specific Hcoas~al environment. Implementation will require no 1977 to express the support of the organization for the Coastal now laws and no additional bureaucracy, but rather it will streamline the existing permitting process, so that developers thne cMnaomnsive Program. The IRotA Directors feeragil strongly threourcest and environmentalists alike should welcomb the plan. We the nsve program to rotect the fragile natural resource applaud the Coastal Zone Management staff for actively in- of the coastal zone i vitally necessary. volvinE the broad public in the preparation of the program valving the broad public In the preparation or the program We support the full range of protective measures proposed. In through monthly meetings with area citizens groups, public protective mesures proposd. In officials, and a representative task force of all interest particular we urge prompt action to protect the Ipswich River groups. under the Scenic Rivers Act. With the economic and recreational value of shellfish beds and other coastal life in the tidal Greenbelt feels that the plan should be administered by the portion of the Ipswich River Basin, we believe that designation Dopartment of Environmental Affairst which in the body most of t she Ipswich River, perhaps at the same time as for the Parker able to provide technical assistance necessary Sor the evalu- Riv should be of a very hiIh priority Ander the implcmentat.on ation and resolving of coastal problems in Essex County. of the Scenic Rivers Act. Sincerely, Ver Truly Yours Lawrence B. Mcrse John W. Peirce cc: Richard Kendall President President Commissioner of the Depnrtment of Environmental CCs Kathryn Cousins Management 3 kS IUBJECT: Policy on Massachusetts TO: Board of Directors Coastal Zone Management Plan FROM: Coastal Zone Management Review Task Force DATE: September 21, 1977 -' OUTIH ScJOI-E - COpal ' @-., The South Shore Chamber of Commerce, reflecting the concerns of its .~'0,;d, '~-, members from Boston to Cape Cod, endorses policies that improve tilhe economic health and quality of life in the region. We seek administrative structures in state government which respond efficiently December 14, 1977 ''' a", and effectively to needs of business - large and small - and of the citizens of the Commonwealth. Particularly, with regard to environmental statutes and regulations, we have sought permit consolidation, to eliminate expensive and confusing duplicate and overlapping permit .1r. Eric P. Van Loon, Director procedures, concurrent review of permits by environmental engineers, Massachusetts Coastal Zone Management computer tracking of permit procedures, and, in sum, a sound management 100 Cambridge Street structure built on the foundation on current statutes and equitably Boston, MA 02202 L managed. Dear Mr. Van Loon: We are opposed to the current Coastal Zone Management proposal for Massachusetts, since it does not accomplish these goals. In fact, we The South Shore Chamber of Conmmerce has adopted a policy position find that current requests for permission to do routine maintenance on the proposed Massachusetts' Coastal Zone Management Program, asked of the Army Coprs of Engineers has been denied because of their which we forward as comment at this time. uncertainty about the new requirements of the Massachusetts Coastal Zone Management plan. Procedure is worse now. This position reflects the concerns of our 1000 corporate members who do business and live on the South Shore. We have not seen management flow charts or specific budgets' that demonstrate that the Coastal Zone Management plan is not just another We intend to continue to work with legislators and environmental layer of red-tape and bureaucracy. We are concerned that draft afencies to achieve the goals we have set, and to resolve the regulations now in process are being designed by federally funded conflicts identified during the next year. environmental advocates and that there is no representative of busille:s or industry funded to participate in the draft. regulations procedure. Sincerely, .' ~ ' ' ', ~'//- such as "significant visual impacts", wlich can he in terpreted subjectively. Our memblers continue to be concerned about tile fact that Ronald Courville most attendees at regional meetings were paid staff members of city and Chairwan, Coastal Zone Management Committee state agencies and environmentalists. hInclosure H!owever, we support those aspects of Coastal Zone Management structure which will accomplish the goals we seek. We note that the Coastal Zone Management plan recognizes the need for a new Fore River Dridge, the designation of tie Quincy-Woymouth area as one of the six state ports, and the prodding that a lead agency be named for water transportation. We ask the federal government to return the proposal to Massachusetts and require that the Coastal Zone Management planners actively involve the Commonwealthll's Developmernt Cabinet, legislat.ive 3eadership and private economic interests il resolving the procedural conflicts whichll eist so that we can be asstured that the desirable objective of tlhe developetdrlt of a consolidated permit procedure wi ll, in fact, be achieved and that the environmenta] staiutes relating oIn 'colsrta] Jissurs ;ill he fairly arlministered Lo reflect the quality of life and the economic wel -blfJg of the Commonweal th. 36 Miller Stile Road. BDux 488, Qkuincy. Mass3chietlts 021G69, (617) 479-1111 An A. Acredituud ChAmI'b,' I The Massachusetts Roadside Council' -----------__ 74 NO1l0i S1'REIiT, I,-XINGTON, MASSACI1IUSP','IE S 02173 V fY1-i ii f iel: 862-2859 ifi1 iin-tfn ff-ITT (.5 oor i Visim, Inc. 2 i-bbard Park,CGanbridge, Massachusc 21- fi A-, Siot"tlA.. ,1 b.fin-i THE COASTAL ZONE MANAGEMENT PLAN: A IIANOATE FOR VISUAL QUALITY 1 Deceniber 1977 .s"~ N.E. Wif~lintor Iiinitiii~ii~ononI am writing in support of the visual environmeent section of Mr. Eric Van Loon ffi, 14-1- 00. ,, ,j__ Ii..the Coastal Zone Manageinn t Plan for Massachusetts. I do Coastal Zone Management Office L SAl,.l . ItniN i,,,,nio Cnooit...i. 100ati Cambridge 0tret V this in behalf of two organizations: tile. Massachusetts Road- 100 Cambridge 1;f~reetA.. im Room 2006 Si..,. iSlo,, side Council, a coalition of citizens and organizations con- Boston MA 02111 ul�� l t.ill i.llin e r otnIdf~f,,. n cernod with the state's visual environment; and VISIONI, Inc. Dear Mr. Van Loon: art IVErs TA N"A;ll 1'I�� . a noI�EI� I am enclosing Ron rloeming's testimony on the Coastal It......., Sli...E.N.ii, II5,,Sn,5 a not-for-profit advisory organization that deals with issues Zone Management Plan. I'm sorry we couldn't get it to you by 5 pm todlay. rI--ill.l;(lr nit~.. ~.... (f~.:i,,nin I;� F.. I~id~uy of the built environment in cities and towns tlhroughout I hope you finsi this helpful. Thank you. . t ,i England and across the country. Cit.,,,rn,,5.. (5io,,,oioo. SI,. 50.05� ii In-no Sincerely, Illiotot InCl- 55ul. oi5.ll 55ti. In ssiui..;. ii...;.(� e-.n.n We think the plan as presented is a cosiipetsent beginning for 1, 0 ,009. i-i,A,n - . FAi.-if,,, 1. I-.4 Steven Wolf 55255,j,,Si'otGii-nni~n,,, I setting visual quality standards. Tile visual esivironisent Steven Wolf A 11 I IS0 I5 110.1 IID Administrative Assistant I,, N II ('.5 555-It IC.otli, has been neglected in Massachusetts, as it has been practi- endc SIr' A,. tn-i,. -'-ii ,"C 0 ca-lly everywhere else. Outiste signs, glaring lightts SJW: TRW garish buildings, overhead wires, bar-on parkisig lets--thi litany of visual woes threatess to overwhelni us all, destroy- 27uI~n (Jr~ . 1-b-Ih.h~ I ~ ~ ing tile visual narrative which tells us where we are, aiid 5in 1it,�.o t:o-oioi-O Slllmwhat we have experiesiced--architecturally, culturally, his- Si,-- Sf:1,,i S,-lr.f,nilj,, (of f9n,,,n Clintr It, 'I torically--as a state. No part of our esuvironment suffers frees snore pressure than the coastal zone. and it is lrive that visual standards ase most i-gently nrefdtd. After ro- viewing tile statesient, We feel that certain poinits miiil, be I.- ittI f0Wit . 100.S-nt-ti~it jI". It iII! ....l~t9ASO~O ..........l IC,-'it5,tthtu'~,tosn- ." to- i-,ii.-i...f ...Iiif .~...n-- S.-.-~.. imbeddd in tile policy: 4,11t-tto1ti? I'l .17ot,si-n The Massachusetts Roadside Council' 74 NORTH STRE.BT, LEXINGTON, NIASSAGHUS13TS 012173 The Massachusetts Roadside Council' 74~~~~~~~~~~~~~~~~~~~~~~~1 NOR~Ih STREET,. LEXINGTON, MASSACHUSE'rTSI`T 0217 Tel: 862.2859 14 NORTH STREET. LEXINGTON, SIASSACTIUsE'TS 02173 .,18318"I ORGANIZ ATIONS lokb,,. I181 C.o 1, 6, I o.I-28S9 J,,lo,.1100.0l of I..: .1' 0.10 A,,11,0'o1, 31801- IJ H OROANIZATIONS Coi CI,,olbol 01 tkuuolo 'Ibblo, 1181. Cnol.oo. 700. U.4 0S(luL 1of.ll. o oA Siso.?. N. JOINT STATEMENT: MASS ROADSIDE COUNCIL/VISION, INC. .l10,0 of tlodpo AAilol, Vo~l Coolo. Oop,1,01.PIol 80,0. 01 N. E. Il Cl.or..r of ojmoroo 11,.A,b-ui~t Au - olo- 00 ool I Iro 1 A01-ilol il.o 0fau. i'O0'CUua o( lP'ul10oiCSudlO IlclmPAGE 2 DECEM4BER 15, 1977 .1 'Nl-JOINT STATEMENT: M ASS R OADSIDE COUNCIL/VISIOil, INC. SI,,,. 'oo,.,ro~oo, Au,,o, iO - d., Jofol,,o 'P1_,.o J11o-d, 01,os Scrl:lo A',o,,,co -looIjfolnr.Flilui11Fnan l.d NJ.,".SLuld-, j-ild ol d0001,0', .o . lllolol. 0.810 PAGE 3 DECEMBER 15, 1977 lb,1,. A-1,. C-.oAS SE Noorro, Aooi6liMon Wl B Tola da-- I andr~inliu. L,. . Actions should not be advisory. Phrases like "insure that Z t'S=Lolo ni.' ,"-Lo"o "oo"oo"dol, AI'O1'00flA~ ~ ~ ~ ~ ~ ~ ~~~~~~~~~~~~~~~~~~~~~~~~~u 1,0 I.,.ol. A P01,110,0 Ao~o. SPOI~~~~~~~~~~~~~~~~S~~~~~~~liJ ~~~~~~~~~~~~. F.. ... I G-dlrd. A-mciti-l. 1-. Arn~L;.n ,.OOIOif,,,O,,,Of,110A1000;01100.0. B1b signing and design of major facilities will be compatible and the madatory undergrounding of new utility systeis fib.. $, 0f,,,,,,,0,~:I fI,0b000 C~lolfl~lO, Of 1110 1i.01,. V:.01, $oIolol~o 01 blon,. I,,,. SI'fOVSONS with the inherent visual qualities of the coast zone" are, ~~~~~~~~~~~~~~~~~~~~~~~~~~~~qatisof the c,,Ioast zone" are If, UJ,,,,o, ('1, $011,l, ofIf.. (tand a r policy i ayEuropean countries). fLtol. 1, o,,o of ~llrll o, olr il '11000. 00,001 n C~uu l fo, Ifolo Ol Al,-i. If,0,Oo ZtO-,tK . ..u....to , ...0Im * lmpleiientatioi should stress compatibility of new built -i~�r(ll t 11polilllninprtant. They should, not be diluted by thle substi- .-I S1111 1 l" . 1 ,' ' ""in ois[ oU. . A d .r 1 T. tution of 'enocurage' for "insure." environment elements with existing visual character. The Vol,, ~ ~ ~ ~ ~ ~ uto of Polocrloe iffoollr ,ofiof,0flA.uo lIo,, .01 lrll oounl,,0 lfOoflrl0,,~ll,l lr el.......... vin fb,'. II 00001, e The suggested review and regulatory powers very rightly J fn policy statement should expand on this point (see exaaples Jo-y It- V-, lull. dtlrillrshould include both public and private projects. of visual guidelines for different built-up areas prepared J,,,,--,,oo,. Sir Jof',y II boo, II SoIl $1,001. wI~olofll Th,8.e Executive Office of Environmental Affairs must be in 1for York, Maine). Weneed general guidelines for 0ill.ll(:d IfofIfr8 lfl.ofo ilo.,oo,. Ito,.~ Ilooo 5.e f'ioluodlire ort~e IIC~l..;d Ioo,,l ).'. SI',. 5,. ooii oWofLf1 I C,,,,,ol fl,,4,Af,,1i. 0 h, NJ;- It-l~llll nl~l~ll�� LIIIIII.D a position to serve as a "visual ombbidsman" to determline "��"'~�`'"ment of design review in different types of built environ- Id"bof,.1l Of- Fwhether the cumulative environmental impact of private . ,nts--roadside conunercial areas should have different cri- 102 Sf,,,o projects necessitates preparation of a fuIenvironmental V11-',11.", c or historic St,,. 1, 3% 11,11t- !(-d.... W-". teria for exampl thanIoillag . ll.. Vloo-Itv impact report. CZM must be in a position to evaluat e N II--- J. I mo,- residential areas. 11,. 1IIIo,,u.-l 10,01I 8110 ..~lliIA $or fiffl Hifo,,l, 11.00001 III A~oL.,l't , ..,. 1 ~ 0.01 1ZIn f00-I. potential visual impact and to reconmiend mitigating i t. ,iofs The policy must take a broad approach to visual imlpacts. A. I. A., ht - l,,.I.oouu, S-l B. nloo Cl 'll A- -ly i�(jg.;lL Ifvrlln iouldl. 111 Iot ,lbe ml.-c. Ilc~ ~,l~lnlr d FnCI~m dua E~easures. Visual impacts must be considered cai A , . . I LI-I R eview of new development, for example, should not be Li~~~~~lnlrJ lilmJ. Bu~~~~~~~~~~~~~~~~~~ll~~~~sly~~i Io.8.oo1,f I.. idro 01,. A. l 4,-luf 31.1-01, A. I.i!., Ji0 0lT,,looolu Ollol. 110, Ae-l-,ouI1.,.th.e planning 'and design process in order to insAre- bound to narrow definitions of "abutting or adjacent to (loo..uof, (,fo Y:lil(o iI~. . Co,o,, 1l. f 1111,fmlullonly Oil.. (0-1 f',.lo.lio, 01 SI--- lo. NiE.l,,llo A.M.l8.....il..oi~lioo 1u0I1,.oolol~nf 1111011 P~ff1'llo,0 ameliorative action. I- Van historic district." A proposed highway 1.11t skirt the 11,,. 11lr.8,,00, of I~launin. I~tJI General guidelines for different coastal environmental boundaries of a waterfront historic district, but coml- 000 100,0 11.1 1.0,1.10 11.11,001,01,1 II- C011. 11,. V10 11,10-V ~ ~s. i~o~u types are useful, but they should be combined with specific bl?" 'i, I'll f 111-,A,' , E."?, pletely alter the environent. Obviously, ,eview power C-atflRrid. I. J, . 1WH'.1�.I RI:1L is V.8,, 11.8 f.11ooullllfl requirements such as mandatory design review for National IS, b"t, '11,10.d must include tile right to minimize potential adverse impact. IS 1,,8o, 0,1. ol-f lJIM1 Register historic districts (Newbluryport's High Street, a Design review power within the coastal zone most be con- long a National Register site, lies no loCal design review sidered a key legal tool. It limit fot fIC re.stricted merely protection); landscaping requirements for parkinig lots to historic districts. Increasingly, historic districtifg is (because of the visual abuse of certain shouping ceiters); beibg seen as a planning tool, a meanls of achievinri (lesignl Kecp Aniericn-and Massachusetts -"'Beautiful -review, but this concept shfould be broadened so that the ~~~'---- ~~~~~~~~------?-.~P.... fe The Massachusetts Roadside Council' 74 NOR1TH STIIEET, LEXINGTON, NIASSAQIUSErTS 02173 The Massachusetts Roadside C�1i' PIE~IfIISf tIIOANI~A~O~J Td 862-S9 74 NOItTH STREET, LEXINGTON, MSSAC1USR ' i t" A% 11,11. CIII---.R1ZT I-Z Tel: 862-2859 JJ-_ 4A'...A 0.1,11114611lrlilU .Lr.)UI ~n~r~ EiOi.i ..,i ( i i ii,,.irr ioo AirSuu,irridi� .U�ILlr4y Eu�IoZiull rri fir A~rndSiii IJOINT STATE14ENT: HASS ROADSIDE COUNCIL/VISION, INC. Ciii tnri,, in,. rr A-.f i j ".... Frri....PAGE 4 J PE ?JY2L. & JOINT STATEMENT: MASS ROADSIDE COUNCI, !igj, INC. 0r. Iok,,io., iii P,,. iiiPA GE 5 Si.,... To.. W,,,.io1i,,S,, 5.0,. 0. JEM-r,-,trf 0uorr, PAGE 15, 1977 NC Si. %A~i�,-6- V,[ittii Scw0 100(ui the benefits of some review can be applied to commercial t h & I*o-t.i. A. Ao.,rltiil Aolm�i..i,,�i A,.odii.'n.Si. I,,,,,S.o qualities of a nearby site, the pr,~l-.- ., . A be empowered .. .. . . .. districts within the coastal zone. Criteria for design uesOfsitS C.o,,,r ,,,,, t . a i floulroi~ 555 iii,,,. ArorIi.Aoiir,,O.o.isrt E.-, ., IUW. to = -.1-b- ., %I ., I".~l II51air ~uulult to disallow such actions or to at[!, : 'r :ating conditionss KM.. .r-.ocit review might include: landscape preservation, relation *l5.Cr, 5. n ti S~Iri,.,,.* of aCI~U tt 0. Ari~fifi..i Sro (u~nn l.�n (biir;...oI0 to the development, where this Cal, .;,.Yed. u.,,�yl~l riou...sr Pr...U of structures to their environment, preservation of .r, , th dvlpet whore t C 'e iii,,~~~ I ,ii.i~ 'r, in ooi,~rtrwo..sIS,,*u~ii a iilflm., ELOO,,a * It is particularly imeportant to det,- ,.rridors ini open space, circolation, surface water drainage, utility a the co h a e . i (rn 111 I~uulr Ilnclmliw, tne coastal zone which are fret, of - S-�-ite signss f...i cr,.,,.o,.0, � ,.i..~ . iSO~i..Sho~ services, auvertising features, structural safety, anders ~ ~ lAS, protection of area heritage. Brookline uses these criteria It n which have visually pre-emptcd so i... .-.ritegic sites ~~~~~~~~~~~~~~~~~~~~~~~~C protection ofb.E ,.;I,,..i,..�.. *r..~�M, - Min the state. Since, under state '2 - . such signs A.,0 4.... . i t s design review capacity, whiich covers tile c i ty", Jf. A-, I. ...... I- i Wibi deign capacity I.. oOir comnmecial districts and is unrelated to historic districting. J must be licensed on on annual br'i.inca they have C I.~~~~~~~~~~~~~~~~~~~~~~~~~~~~rP, r51*I. ....... .%I,-. W-rr Ia Performance zoning, a useful planning tool mentioned in the AlUri ~ �. n non-conforming use protection M..state zoning report, should be explicitly related to the types of acti- Senabling law, they can easily he f'S, J : IrtsUlir '~~" ,a.,. Representing a constituency concer',,*, .; . ighways, fe vities which should be regulated. ..i i,,,r2.%i M",v.,,r are particularly pleased to endol-0, .. . fablish aent i It is imperative that the lassachusetts 11istorical .1 Li=~ i..i':;at:'~"'~'r"' . Coesnissien have authority to review federal develo nts A of scenic roadways and highways wi!,,. coastal zollne , *IV ~~�I1� I.l:T ~ l Commission have authlorit-y to review federal dev0Upilio~nts 4,6'"O"'"'""S'".U'" ~::l;;~lf,,,,,,~ ~~~ ~ , �,.itft and we feel that it is iapodwftant th a. . ..i mptoney frtm or federally-funded or -licenSed pryjects considered *1~~~. 11��111-1"'11� -\��.11 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 'I, I'l, 4- ~dWI-I- the federal llighway ruvld specifica. - Lii harmful to the character of historic districts, sites, f3l 4f.1 to.. t- ti J., IT;.. I......ICllm1b�i�l�llii ~ , ,rtl.rill lj-lll~ enhancemer nt. or properties cligible for tile NWtional Pegister. The hl~~~~~l. L'.�� ~~~~~~~~~~~~rkr~~~~~du~~~~~l I�( n�.lil-n'. Oll,.r ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~v"' ' II Coastal 7effe Management progranm must sivstain thiis review ' ifoli..iC"i Hill J, ...... ..... .......... Q~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~I;IIII rl~l_\il-b.lb i,,,ir~~~~~~ii Or-h iii ii~~~~h~r~a rI,,lre; The protection and enhanceisent of tlhr -* - envit-Offnrnt. action and expand it to state developmrsent projects and Al . The is a part of i . .. envi rollmet Ifrivate activity reqifiilfil a state pcimit. if, ifter vih'(h is a tart Of iflf' CNIstal 7ter'fla-, review, they are consider-ed hiarIfUl to tire h1istoric been a I 0fiD tihic it, confing. orklhapifl od b. Ei' inre miatuf-e as a cul tu,,, we would hav(! ijy. this type Uf protfarif if tile years 1ifof ouk r rie ii. .�; di/Chiipfiff'ft 3"r C | ^ iRBOSTON SOCIETY OF-LANDSCAPE ARCHI ECTi TheMssachusts Roa dsid Coul .MAINE-MASSACHUSETTS' NEW HAMPSHIRE & VERMONT CHAPTER The Massachusetts Roadside Council SLA TEARIN SOCIETY OF7LANDSCAPE ARCHIECI THE AMERICAN SOCIETY OF LANDSCAPE ARCHITEC S, INC 74 NORTH STlRELT, LEXINGTON, NMASSACIIUSETTS 02173 24 ASH STREET. CAMBRIDGE, MASSACHUSETTS 02138 TELEPHONE 1617) 876-6771 Tel: 862.2859 .nORE:R ORO.ANIZAfVONA ei.kb Ei o Silk Coa lo,nm. Il, b gk1hi Nat Riali /Hourcs Counril i't-nB-'..tyo ].,od,',oA rhil,it . lt.a n1 1Ci1.b,,l of *Cobil..ll Office of Coastal Zone Management 14 December 1977 EI-t Couao G clli Aoc.oirot ,-rcti eci. }Li flt 0O1[,.t, State Office Building otalo>. .oCcioiom OAin V;hiItn t. J dOINT STATEMENT: MASS ROADSIDE COUNCIL/VISION, INC. 100 Cambridge Street ST-rd, AFdr6- s oi ;sie11ni~g n~rBoston, Massachusetts ',is. F`~de llt,. el 'l.-,m 'l a B .ntda fht' oro't".tltnkrO ,. oriolion PAGE 6 DECEMBER 15, 1977 l. ,..,c,'. ^,s�tl~ ...ti. STATEMENT: Draft EIS Coastal Zone Management Program M IOe 6i[te A.ooetiol of AotchilMel .c $l. led.* I t.,I,. l citoco.'' .' Club. � o. _i Ao [ F-t o- ,1 i A.-.. 1,%ilo.r I5S,.lljtyS~il boom pre-empted so many opportunities for regulating growth. The Boston Society of Landscape Architects is a chapter of the American siao.svansa Society of Landscape Architects, Inc. The Society is a non-profit pro- i.:,,als;t'..,AT. fi,,. This type of planning should be welcomed by the major pri- fessional organization having a membership of some 5,000 persons. 5:lh.ii W . oio,./,cl. C'ortoto,n loer .,Ac::. c.,.aActioo. T.-,, i,.. n r vate interestes involved, as, in the long run, it will A basic premise of the Society is responsible stewardship of land and -s.l fiji lj.lcli ('1t1rill 0', Clhl lC illS. Tl water resources: resources on which our national social fabric is based, I ..... . I'I.I 1 ttYCS. 'T�-?rAiccg l� inr t:occccc,,c , make the planniing process more predictable and will en- and from which we, as a nation, shall always continue to draw both sus- tenance and inspiration. Therefore we support approval and implemcnta- A ., o.. , of,.,,'.,,t,..o. . . hance the value of many investments in coastal real estate. tion of the Coastal Zone Management (CZM) program. cf'i ll I l--eInt 1 i i.d I -l. ol[ o I3t;cc....o�" htsr iti.t Even in hindsight, though, the visual damage which so mtuch However, there are several items which need to be strengthened, others hf-Itrs rl Jblcli.e tJnsli,.-. need definition and others need promulgation. The program needs to be [coiNfe II.s slast, of our coastline has suffered is disturbing. It is per- strengtheled so that the Executive Office of Environmental Affairs (EOEA) I i,,, I ,ot All-. /.A;,,r,..,, actually can guide development in tile Coastal Zone. At present a large . Ch.~, Moro. .Mi. F l;ti,:Nll1 h '01)..hl.Y 3it 4 s.. Ao I , hleaps the most poignant testimony to the need for a strong part of this function lies with the local jurisdiction. The prime com- ' I , , ll 1t.r . AI.l.I- te plaint against perpetuation of the iivioiability of home rule is its past 5 s:,,,r. s~ll,.ll,� r,.,,,lJ Ivisual component in this Coastal Zoning Managemnent Plan. history. We foresee only a continuation of despoilation if the actions lIItfd'istd.i-tnbo. ctUmbe ,c of local planning boards regarding land use and density, and local water A~.,. L,.f.f,,oVr, t.,,,.. .. c ..i F... R ficr Wocl, ~0 I~,uinbn, g.~.p,:,..1olbl;8l, It has our strong support. and sewage capital improvements programs are not interfaced and made re- ,ItS, a, [rcA-l.-htH,,cSill [ rljl; sponsive to the CZM regulations and policies. Program approval at the U.t,,lul, ,1.- t.S~a. :t,.tl Federal level should he predicated on the greater need of the total tccA.Oct-c tloodlAotsllr LIt. K Orn n ol society to protect the commonnatural resource base. l...,t ln-�t lo1',.1 J. N. ul,,, ,. J. tIe'rotv C,.coonn. slI. rtl..rd F. Lt-.n tJso ,IrojrItod. INoo rtl Ronald Lee Fleming We are of the opinion that additional regulations must be adopted and incorporated into an enforceable CZM program as regards the Ocean ttq OtciOI i3tocojtmc Executive Director. Sanctuaries and Waterways Program, the Wetlands Protection Act and the -' o,,,..u...l. . interrelationship of iths EOlEA and the Energy Facilities Siting Council. I ,-o,, g.-.tVI SON, IIc. Chapter 21a regulations related to EOEA are inadequate tools to protect ,. 1 I.. ..llhbr:tdla ~ ,.,.. .... the efficacy of the program. A. 1. 1, . t-I 0 51ll.Jnlth Jlnmt lel. Iblon :i,. s,h� r. uoae t lm ,~Ls'l',,;2 .i.,lla Legislative Chairmanm We are of the opinion that all Areas for Preservation and Restoration (AtPR) must be designated before the plan is promulgated to assure pro- v ,,.c r*.. .t,dii,,0,h, f, s. Massachusetts Roadside Council tection. Gc.lo.ht. ( nxl le.t:lor ol e.., Inc. We are coegnizant that mere designation of APR's will lot precude energy i:. I~l.ct.,,'.c b,,"' x.. facilities from affect ing tthese areas. Therefore we also recommend re- oItl,,o I-,Ii , � to ttl, l e .defillition of agreecsentso regarding the Energy Facilities Siting Councll � ."J.. .,c.., '- 1, .i, f or; n,d :r1''/ ~S n 11. 71,r ,- (',dl I:dAJ. ' t T r Trst -At- Pres._jf,, Virr PLe s!C~, Soc[rea � Tre._ _ are2 Trustee M.me,-A__t .1 CUr iss P.llai Fdrclad rFt. Clemnons Blllc E. Tyson Gary I.. Larson Jlhl L.Wacker Roet llW. Pollore, J. 39o MARQUIS B. GRAHAM INSURANCE 31 EOWARD ROAD WEST NEWTON. MASSACHUSETTS 02165 TELEPH.NE-6h As 617-332-5325 Office of Coastal Zone Management -2- 14 December 1977 12/5/77 to mandate adherence to he CZM policies and regulations. This point Office of Coastal Zone Management is particularly significant in light of the pending leasing of offshore N ational Oceanic and At mospheric Adm. tracts for oil and gas Iproduction. Attentiont Ms Kathryn Cousins fyulanrcssadadthe ef- Room 3280 We appreciate the enormty of yur planning process and aplaud the 3300 Whitehaven Street NW forts of your staff and the citizenry. However, because the Iassachusetts Washington, D C 20235 CZM Program is one of the first regional programs to be eligible for Fed- a s ins eral approval it is paramount that the total program be enforceable through regulations which prote( t the Coastal Zone more than just adequately. Therefore we urge that ahe foregoing items be promulgated prior to the I own a summer cottage at Gurnet Point Plymouth, Mass. 23 February 1978 target late for Federal approval. and am therefore greatly Interested In the effect If any to Duxbury Beach, Gurneat Point and Saquish beach of the 38 policies regarding activities on the coast adopted by Massachusetts, particularly Policies 25, 26 and 27. Access to these properties is by four wheel drive vehicles only. Since there is now quite heavy travel this way A. Curti, polllnri measures have had to be taken to preserve the dunes and prevent the ocean from comelng across to Duxbury Bay and making the entire place an island. Any added crowds to this area could be very distfctive because of the fragility of the land. Prpbably large expenditure of monies would be needed and heavy policing. Also the problem of sanitation and sewerage would be a major project. In Ahe light of these facts, although I would prefer to maintain the status quo, it is my opinion that if there is to be an acquisition of any of thid land it should be funded with Federal funds to assure there will be suffietlnt monies to handle the problems created. Yours very .truy, ; ,, Marquis B. Graham 106 Shawimut St. Chelsea, MA i215Q, Orleans, Mass. Dec. 1, 1977 March 17, 1977 Ms. Kathryn Cousins Office of Coastal Zone I anagenment Honorable Juanita Krepps 3 Whitehaven St, W U.S. Secretary of Commerc30 Whitehaven St., NW !Washington, o.c, 2D~1O Washintton, LC 20235 Washington, D.C, 20510 Dear Secretary Krepps: Dear iis. Cousins: 'nclosed is a letter from our CZM Committee of March 11, 1977 to the I aui in favor of thk Massachusetts Coastal Zone Mlanagellment ~rogram and am Director of the Mass. Office of Coastal Zone Management with a map of the Coastal Zone Opposed to H6a7, hich would therefore opposed to H.6 87, ..hich would in effect halt all state action in the Town of Or: ans attached indicating the various conservation and wetland in effect alt all state on in the Please include this letter as part of the hearing record. T ank you. VIe are concerned over the many unanswered questions relating to the ad- Sincerely yours, ministration and implementation of the CZM Program especially as it relates to our own existing self Government. lliott Krefetz We feel you might want to be kept informed and you might be interested in our concern over this imnportant program. Sincerely, Thomas Walsh, Co-Chairman Orleans Coastal Zone Management Committee ,Encl. GREATER LAWRENCE CHAMBER OF COMMERCE December 7, 1977 SERVING LAWRENCE. ANDOVER. NORTH ANOVER. E TMrHUEN; &SALFM, N.H. Kathryn Cousins THREE HUNDRED ESSEX ST. Office of Coastal Zoo-- Management LAWRENCE. MASS. 81844 (O1?J 68G-9404 3300 Whitehaven StreOt, N.W. Washington, D. C. 20"35 December 16, 1977 Dear Mrs. Cousins: Kathryn Cousins In keeping with request to submit comments relating to the Massachusetts Richard O'Connor Office of Coastal Zone Management CZM program, I am s,6mitting two recommendations, as follows: Off ic e of Coastal Zoneaven St., 3300 Whitehaven St., i.W. Washington, D.C. 20235 I. Citizens Ad"isory Committees - Dear Ms. Cousins & Mr. O'Connor: The cc! tribution of the CAC's has been acknowledged in the Program Repr t. Their continuation in the management phase has On December 13th, the Board of Directors of the Greater been indicated, but without formal structuring. Appointment of Lawrence Chamber of Commerce, voted to support any the membershl;p should be by a defined process, including some input efforts to delay the implementation of the Coastal by the legislature representing the regional citizen interests. To Zone Management proposal. bring about n sounder partnership, representoatives or senators should It is the feeling of the Board that one of the greatest be committee members - or hove the authority to appoint a representative. failings of the CZM effort in Massachusetts to date, This would eliminate future objections by some in the legislature that is the Executive Office of Environmental Affair's (1) they did ,ofo have representation (2) were kept"in the dark" - refusal to untangle the Commonwealth's current regula- tory and permitting problems through remedial legisla- 11. Cooperate with Department of Labor and Industry tions and simpl ification The Board favors support for a delay of 6-12 months, in Since CZM on the Federal level is oaministered by an agency of the implemrentation until legalities can be determined the Department of Commerce, it would seem reasonable that a closer and to allow economic and environmental concerns the liaison between MCZM and Labor and Industry should be sought. An necessary time to cooperate in reforming the program. environmentolly oriented land use program sponsored by the Commerce Department ot the Federal level should include participation at the I hope that you find it reasonable to support our inten- State Level by Labor and Industry. Perhaps a memo of understanding tions and thereby provide sufficient time for the plan might suffice - but acknowledgement should be given that the two to be revised adequately. concerns - rl,vironment and Labor & Industry (i.e.Business) are partners Sincerely yours in the Coahstl Zone. John F. Bassett i' A- I2 Li A- President William 5. Webber 4 Knob Hill Great Barrington, Mass. 01230 ACCREDITED 393~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~.mt tc~mc -2- Mobil Oil Corporition " UP AST 4?ND STRF I .1YRuw V('RK in.,? I Otherwise, we see serious legal problems that would prevent the Program from being effective toward allowing the siting of needed oil facilities. For example, the Massachusetts law establishing the Energy Facilities Siting Council (EFSC) and giving it authority to approve siting, is strongly directed toward the Commonwealth. This is contrary to the Federal CZMA which provides regional ant national priorities are required to be considered. Neither is there clear provision for overriding local zoning by-laws. As most, if not all, the coastal zone is subject to local or state laws or ordinances that would greatly restrict or prohibit oil Office of Coastal Zone Management related facilities siting, we cannot be assured of access even 3300 Whitehaven Street N.W. under circumstances that would serve broad regional or national Washington, D.C. 20235 interests. Any plan approved by NOAA is required to provide for override in the regional or national interest. Accordingly, it Attention: Kathryn Cousins or would appear that defects of the nature described here will have Richard O'Connor to be cured before approval is given. 7.06 MID ATLANTIC Representatives of Mobil have participated in preparation of DRAFT ENVIRONMENTAL IMPACT comments on the Massachusetts Plan being submitted by the American STATEMENT - MASSACHUSETTS Petroleum Institute. These comments treat in detail several sul- COASTAL ZONE MANAGEMENT PROGRAM stantial legal obstacles to NOAA approval in the currelt situation. Your serious consideration of those points is recommenied. Gentlemen: Very truly yours, A foremost concern of Mobil with respect to state CZM programs in connection with siting of energy facilities is that any approved plan shou]lt include provisions which: 1-c-a K.W. Wiseman (1) Identify areas within which the siting of energy facilities should be restricted. KWW/at (2) Establish Proper performance criteria for installa- tions. (3) Provide a reasonable permitting process for applicants to employ in receiving due consideration and approval to site enrtrgy facilities at a beneficial and preferred location. On the surface at least, the program for Massachusetts comes close to meeting the abovw. It is evident that the plan being considered by NOAA is the product of broad input and much careful thought. However, we are concerned that the approval process for oil related facilities is so complex as to unduly frustrate siting. For example, a minimum of one year notice is required (two years for a refinery) prior to commencement of construction of an oil 'facility. In addition, there must be a public hearing for each oil facility within 6 months of the notice and a decision given within 12 months of filing (24 months for a refinery). Mobil sub- mits this procedure constitutes unnecessary delay. COLONIALI COASTAL ('01rOTIATI(N) S. Russell sylva ISO IlICK014Y 011V Decomber 13, 1977 * WAIrIIA. M ~iitII~rt ,'n ~ 'C.I~f'~'D Page two DEC ,, Dece mber 13, 3.7 for coopcration and communication among all the xi' ),, intiercats ('DAS1ALZD concerned with the coast. I indicated to Marc KRan flrll nil a UXC. ifve t, number of occasions that X felt more 'selling" was needed, because Russell Syiva "~~~~~~~~~~firy[~ a very large number of fears 'and complaints I have heard expressed S. were based largely upon ignorance rather than fact. I still do Assistant Secretary not believe CZM has done an adequate job of educating the private~ Executive Office of nvironmental Affairsbusiness sector in so far'as the Coastal Zone Management Plan 1.00 Cambridge Stre-etinccr,,d Boston, MA 02202 1 cnend Re: Reg~~rdin~~gomment on Coastal Zone Management I~~n addition to my complaints about the coirununicaction IsFpect of Coastal Zone Management, I have the following romments: 1)ear Mr. Syiva: ~~~~~~~~~~~~~~1. Visual Environment -- all busi1nessmen I have spoken to I enjoyed meeting you at the South Shore Commerce meeting regarding aevr ocre ihtesbetv lmn nti Coa-.tal ZOne Management. Per your request at the meeting, I am arpai While your expressed intent is laudable, most: inclding)ierin m coment an reat in he oastl. Zne Mnageentbusinessmen feat that the visual environment policies incldingheren myronaentson aeas n th Coatal one anagmentlcend themselves to being used as a tool to prevent Plan whare"Oi I see ambigquities or potential-problems. developmont for arbitrary reasons. Althouqh I am the represontative of the Massachusetts Marine2.Prsadabo -theisafrtatou Trade Associat-ion Boalrd of Directors to Coastal Zone Mana~gemlent, "pooing rd"norgn"o aiu prp te the comirents .incl~uded herein do not necessarily represent- tile position 'of the Marine Trade Association, but essentially reflects types Of usne in there areas,, when considered in my pc~ronal poition s both he opertor *o~-a marna andconjunction with M.O.I.I. 's and networking, almost my PC--t:olia postion s boh tie opratorof'- ;Ilrill Andamounts to eitheIr re-zoning, or tie . ability to psil manager of the, 100 acre flimgham Shipyard property on the Weymouth possiblyntore~oe Back TRivor. As the0 mari~ne T~rde Association representative to Coastal Zone 3.". Recreation -- Boating -- the marine? industry i~s very f~ana(';nnt, 1servd on he CastalReviw Cener Ciimittee.concerned that your activities might act to increase Du~ring approximately two years that I have had contact-. with thIe wth piae nmberin ofsacties owne boatrms oin coptiton Coastal Zoepersoninel, I have been favorably impressed with the wik tthe prituateaiona faiithes the ha s. prnlyt to oe attitUdeS of the CZM staff -Ind their willingnre--ss too listen to ZIII look ato thdersituatind the thre MnduC. vs. rvcte horken' points ol- vi~ew. flowever, it has become increasinq'iN obviouls that rnst nesadtemaieidsr' -nen many bicnsmndo not share this favorable opirnon, either: 4. The marine industry is also concerhc-'d with youir policy throuqlh lack of contact with the CZM teoall, or throuqh unfortunate concerning the requirement, thi-i'~%h Water Pol luti on experiences at pub~lic hoearings. Control, for sewage pump-out disposal rac-3]itic's As you are undouhterH~y aware, tere is also a riecp -contc1 frarin each marina. Many marinas are sittiated in areasin o f ~ ~ ~ r ir s c m i i i I ,.. *,. . , * I rtr, y1 .1 ;II i IS Iv ,Iv.- II i I It Im tIIN t' I t I' 1. " Id t-i . T I - I rc i 1qi11ny I alline?.,, requi rxnq (.v1ery 111:11:j na to hlave. ihuse fociliti en in probably unlicecessa ry. !,i no cimanv m rio-as S. Russell sylva Russell'sylva December 13, 1977 'Yo'ember 1-3, 1.977 Pago three ,.%Caqe four are too small to justify the installation and there more than" the Cities and towns do. 1. bolieve you may be a nearby -facility that can adequately serv ice have failed to realize that state governiii:ntt, including, all the customems in an area. I believe this provision most 8pOCiaillY, Permitting agencies,, is vi.,ewod by deserves more homework before becing implemented. mos 15!small. businessmen as a monolithic wall of indifference. From my Own experience, I have found 5.CZpl's credibility has, been severely dam-god due to Your People to be most lhelPfnll- I believe, thle C7M your recent admission that "one stop permits" is policies intend that this will continue. oevr not feasible under the present laws. For a long t ime you have not adequately informed the busine~ss CZM spokesmnen were indicating that the single permit csuitoftha' net ug~ htyumck procedure was one of the benefits which would result strong effort.(and Chambers Of Commer01ce might be a from the approval and implementation of the Program. good Place to start) to get the WordJ ouit. I further suggest that you make a definite cemira-ittnient to~ Inc~luide 6. Many businessmen are very skeptical of your stated aPPropriate small business interests in bot.h th,, policies. Their feeling is that the CZMA program regional Advisory boards and the state wide C~ll5ml~. wqill effectively increase the power of mnvironme~ntal -especially representatives from the South Shxore .Affairs through more %effective networking and iitilinatid Chamber of Commerce'and mass Marine T[rade Associat~i.nn of the various legislative authorities in the many a~Well no others. d~cepartments concerned. In turn they feel that this increased powter could result in economic disaster ifr Very truly yours, the present favorable policies were reversed by some 'i-. * succeeding administration. 7. in connection with No. 6 above, there is a definite Paul Rt. Noelon - fear that small business will 'have no voice in future Vice President ' policy formulation. lie recognize that large corporation" and institutions can afford the expensive legal and P"-e lobbying talent to insure that their voice is beard. Smiall business is unable to atfford auch~an expense. *.Martha Reardon I do not believe you have -adequately guaranteed a Richard Eglan voi.ce for small business in future policy formulation. Eric VanLoon 1,~' nor do.I believe you have adequately provided for ailding small business to develop and expand where appropriate. One of the most potentially attractive elements of the Massacusetts Cgasta~l Zone Management P] an is your Ltated policy of en~couraging developitent, in the Coaistal Zone ;thero 'appropri ate. I be] jeve voun uixlei the boat. in not emphasiziing and educating the bus ne mcimnnni ty to thr, foct I hat your rncoturag'meni! woaiid itiiiI idt.'li :. ,1111 Ih~p jill i~i io WillIi lla': ili-lld i v ni 1,1w :vt ij Chan e l: ('010illili t fa ls i ,;.; i,-I CA-;K' 1w If. DAVID E HAR RECEIVED CROCKER SNOW Attorney and Counselor at Lato BOSTON.LOAN AIRPORT III 11 A. STICT DEC 3 0 1977 EST BOSON. MAAURECE I VIED GLOUCssr, MA(8AUBmS 01030 i` 2' - \_ - l V LULL ~~~~(817) 283`7432 R CCOASTAL ZONE MANAGEM'ENT Exe. Office el En.:ilermintai Alif::s December 5, 1977 EC 17 December 28, 1977 December 28, 1977 MEMORANDUM COASTAL ZONE MANAGEMENT EDec. Oilite el Envircnnital ,flla!. Erik Van Loon, Director I have looked over the voluminous material on the Massachusetts coastal zone Management Coastal Zone Management Program to see what it means, primarily Saltonstall office Building to Ipswich and also to West Gloucester and Muskeget. Boston, MA All of Ipswich seaward of I-A from Rowley to the Cable Hospital Dear Mr. Loon: and thence along Route 133 to Essex, with a jog along Candlewood I have been requested to make a further statement and Chebacco Roads, would be in the zone. Actually, the line in regard to the application of the Mles River Sand would run 100 ft. west of the highway boundaries. & Gravel Co., Inc. in its request to be "grandfathered" as to its activities as a gravel pit and sand digging bus- All of the affected area has been nominated as an APR, which iness off Paradise Road in Ipswich. stands for "Areas for Preservation and Restoration". Such areas are subject topolicies 1, 2, 3, 8, 18 and 26, which, very briefly, I was under the impression that my remarks were recorded say that no use should be made of the rivers, salt marshes, and at the night of the hearing in Danvers, but if they were adjacent 100 year flood plains which would hurt them, and every the translation will not take place in time for your decision. effort, including public ownership, should be made to preserve them The Miles River Sand & Gravel Co., Inc. has been and restore them if necessary to their pristine state. Those policies owned by the Vitale family for over fifty years and has can be found in VQlume I. operated in the area as shown by the map which I presented on the night of the hearing as a sand and gravel operation. In addition, it appears that the Ipswich sewerage system and There has been no question as to its existence as both the its dump are inconsistent with the CZM objectives, and that the tidal Board of Selectman and the Conservation Commission have given portion of the Ipswich River would be eligible for dredging. the operation its necessary permits each and every year since permits have been necessary. As an ordinary citizen I'm all for the plan as it affects Ipswich, I hope that this Board will grant a "grandfathers" but I'm in no position to evaluate it from the standpoint of the Town clause to the Miles River Sand & Gravel Co., Inc. as a whole. December 15 is the deadline for comments to the Secretary of Environmental Affairs. Yrs truly David E. Har ison Attorney Crocker Snow DES/jnr CS/ep Putnam, Bell & Russell Attorneysat aw 53 State Street Boston. Massfchuise ts 02; 09 (617) 723-3131 REVIEW AND COMMENT Cable Putten an December 13, 1977 ON THE RECOMMENDATION FOR PUBLIC LAND ACCESS Office of Coastal Zone Management TO STONY POINT DIKE, National Oceanic and Atmospheric Administration WAREHAM, MASSACHUSETTS Attention: Ms. Kathryn Cousins Room 3280 CONTAINED IN 3300 Whitehaven Street, N. W. Washington, D. C. 20235 THE MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM Evelyn F. Murphy, Secretary Executive Office of Environmental Affairs 100 Cambridge Street ~~~AS EVALUATED BY 1Boston, Massachusetts 02202 THE STATE OF MASSACHUSETTS COASTAL MANAGEMENT Eric VanLoon, Director DRAFT ENVIRONMENTAL IMPACT STATEMENT Massachusetts Coastal Zone Management Program 100 Cambridge Street Boston, Massachusetts 02202 Dear Mesdames and Sir: On behalf of Mr. and Mrs. Colin A. Canham, Jr., Mr. an Mrs. C. Ezekiel Cheever, Mr. and Mrs. John Coburn, Mr. and Mrs. G. ] ama Crittenden, Mr. and Mrs. Charles P. Lyman, Mr. and Mrs. Freder ck Mittendorf, Mr. and Mrs. Raymond J. Montminy, Mrs. George L. arg nt Mr. and Mrs. Samuel P. Shaw, and myself, as landowners affecte by th Coastal Zone Management proposal for land access to Stony Point Di e, Wareham, Massachusetts, I enclose for your review an environme tal im pact statement prepared by Environmental Collaborative, 12 Arr w S ., Cambridge, Massachusetts 02138, on that proposal. The material th statement is directed to you as written comment on the Draft E virn- mental Impact Statement currently undergoing your review. Sincerely, *~~~~~~~~~~~~~~~~~~~~~~~~~~~/ 71 o1,AS. M' Howard S. Whiteside Prepared by Environmental Collaborative Cambridge, Massachusetts HSW/r for enc. for Residents of the Great Neck Neighborhood of Wareham, Massachusetts 3.6 Description of the impact of the project 36 TABLE OF CONTENTS on planning objectives of federal, state, and local agencies 3.7 Description of project impact on site vegetation 39 Background/Introduction 1 3.8 Description of project impact on wildlife 39 Analysis of Major Issues 5 3.9 Description of the project impact on coastal 40 Review and Comment on the State of Massachusetts Coastal 9 hazardous areas Management Draft Environmental Impact Statement 3.10 Description of the project impact on transportation 43 1. Description of the Action 10 routes 1.1 Nature of the action to be taken 10 4. Alternatives to the Proposed Action 45 1.2 Recreational facilities 10 j. Probable Adverse Environmental Effects Which Cannot 46 be Avoided 1.3 Access road locations 11 6. The Relationship Between Local Short-Term Uses of the 47 1.4 Objectives to be accomplished 11 Environment and the Maintenance and Enhancement of by the project Long-Term Productivity 1.5 Who the project will serve 11 7. Any Irreversible or Irretreivable Commitment of Resources 48 that Would be Involved in the Proposed Action Should 2. Description of the Environment 12 it be Implemented 2.1 Land use of the environment 12 8. Consultation and Coordination 49 2.2 Area vegetation 13 Exhibits: 2.3 Area fauna 13 A. U.S. Army Corps of Engineers' letter in opposition to 2.4 Local socio-economic conditions 14 the dike proposal 2.5 Persons or businesses relocated because of 14 B. Letter from the Wareham Board of Selectmen the project C. Letter from the Wareham Planning Board 2.6 Probable future environment if project not 14 initiated D. Letter from the Wareham Shellfish Constable 3. Environmental Impact of the Proposed Action 16 E. Letter from the Wareham Office of Economic Development 3.1 Effect of the project on land use 16 F. Letter from the Wareham Board of Health. 3.2 Description of the socio-economic effects of 16 G. Letters of Concern from Stony Point residents the project H. Reply to resident letter from the State Office 3.3 Project impact on marine navigation 19 of Coastal Zone Management 3.4 Description of project impact on shellfish beds 20 I. Wareham Growth Policy Committee report 3.5 Description of the project impact on users of the 25 proposed recreational development 39 9 Page Background and Introduction J. U.S. Corps of Enginebrs' Master Plan maps for the This Review and Comment of the Massachusetts Coastal Management Draft development of recreational resources of the Cape Environmental Impact Statement was prepared in response to one of the Cod Canal project area. proposals of the Massachusetts Coastal Zone Management plan. That pro- posal (on page 224 of Volume I and page 146 of Volume 2 of the CZM plan K. Flood plain maps of the Stony Point Dike area. and on page 11-20 of the Draft EIS) recommends that the State Department of Environmental Management acquire an easement to provide general public L. List of wildlife that frequent the dike environment. access to the Stony Point Dike in Uareham, Massachusetts. M. "Farming the Sea" Article in New England Magazine The citizen review procedures required under section 102 (2) (c) of the in the Boston Sunday Globe, November 27, 1977. National Environmental Policy Act of 1969 has provided an opportunity for comment on this proposal by elected officials and town boards of the town N. Recoummendations of the EOEA Shellfish Task Force of Wareham, and by local residents who will be most impacted by the project if it is realized. Residents of the Stony Point area have retained the 0. Senate bill to provide for the establishment of the environmental planning firm of Environmental Collaborative of Cambridge, Cape Cod Canal National Park. Massachusetts to assist them in the review of the Draft Environmental Impact Statement. P. Council on Environmental Quality guidelines for the preparation of environmental impact statements. The major conclusions of this Review and Comment, which includes an analysis of the environmental impact of the proposal, are: Q. U.S. Department of Commerce Administrative Orders governing preparation of impact statements. (1) That the Draft EIS has failed to evaluate the environ- mental impact of the Stony Point Dike proposal, R. Rules and Regulations governing the preparation of environmental impact statements under MEPA. (2) That the proposal does not conform to the Massachuset:s Coastal Zone Management Plan or to federal, state and local plans for the area, (3) That public access to Stony Point Dike would have an adverse environmental impact, and (4) That the recommendation for public land access to Stony Point Dike has such functional shortcomings as to require its elimination from the Massachusetts Coastal Zone Management Program. This Review and Comment is presented in two sections: (1) Outline of the deficiencies of the Draft EIS (p.5) (2) Specifics of the deficiencies of the Draft EIS and an environmental impact statement of the proposal for an easement to the Stony Point Dike with the conclusion that the proposal should be eliminated from the CZM Program (p.9). The purpose of this Review and Comment is not intended to criticize the general goals and policies of the Massachusetts CZM Program, which are constructive and deserve the full support of the public to assure that our coastal resources not be abused. However, the Draft EIS, With respect to the Stony Point Dike recommendation, has failed to evaluate it environmental impact. The environmental impact statement, made part 40oi 1 '. -- ~ '~ ....'~NORTH of this Review and Comment, shows that implementation of this recommenda- i \ OR tion would cause an unacceptable level of environmental degradation and .' -;-/" hazard, and accordingly, the recommendation should be deleted from the CZM Program. _. " " LOWER ' ~: ,- . ;:)~ NORTH SHORE -, ' . . .BOSTON HARBOR ='~- We, '.~ ~SOUTH _, SHORE PLYMOUTH ~.HOPE~.. ~ L. " '' CAPE COD ~MARTHAS~ __ VINEYARD NANTUCKET REGIONAL LOCATION STONY POINT DIKE Wareham, Massachusetts - J L coll aborative 04- 3 ,':', ,;; ' - * --..:'2 ~- � -' ... M22/ i;. ~~~~If �P"\~ ~ ~ ~ s~~~~ Iurgess P .. " : se . . . . . .Golf ?., -->. Pt B�, - rne.I.-. - " ' " ... :1: 7n .t ' A' '\'== ' , ,,, / / Analysis of Malor Issues Llan There are several factors that deserve cons.dert-::!n in evalu-.,i LittlBeacrh Sred rto 't / o / both the inadequacy of the Draft EIS and the inadvisability of ', .P c ~,s ~ ~ ;':..oStony Point Dike proposal. These include: '"' ' ""'b'y'[' ;~ '!i : .... 1. The Draft Environmental Impact Statement is of insufficient detail to evaluate the extent of the impact on the physical and .'.,o20 : lght social environment of the Stony Point Dike project. Tempes '. i Knqpesl, !.', . / // .. ~'." 4~ ~'t.- ' ' .i ; 'Cedarl / // . : In its introduction, the Draft EIS states that the key ques ions . -, Pt / -. to be addressed in reviewing the document are: f:~ ' ~6 .- ::: S tLgh... ' .;ty // - whether the Hassachusetts program is consistent with the ,e > , -- Stony / Ad it.,. objectives and policies of the national legislation, - Mash - whether the award of Federal funds under Section 306 of he ? Is~s ,7Federal Act will help Massachusetts to meet those object ves / whether the State management authorities are adequate to implement ?i?'.,/ .:/the State program, and i / I/ - whether there will be a net environmental gain as a result of �[i / / program approval and implementation. : .:./,.? : /In reference to the Stony Point Dike proposal, however, the Draft .- . : / /7 Light. EIS in no way proves that S< } ' " f:' ; ' /, / . i ; (1) there will be a net environmental gain from implementaton of the project, and (2) the proposal is consistent with the objectives'and polic ies �: ! ", ,,'C~!J!:' ~ / ' of the national legislation This is so primarily because of the inadequate information nd n -�d � / ~analysis provided in the Draft EIS. Indeed, the section of the �e:?.}? j .L~g ht/ EIS that analyzes the impacts of the total Massachusetts CZ program on the natural, social and economic environment is resented ':/ /ZLight 'in only seven pages! Attempting to evaluate the impact on the environment of any one proposal of the CZM plan -- let alon the whole CZH program -- can only make the EIS process a mea ing- / B . U R less exercise, it it is attempted in such an abbreviated man er. :. .:.. .. Accepting this Draft EIS as an adequate evaluation document is surely not in conformance with the intent of the National En iron- ; /L / // /' - ~ .--' t ~%.. mental Policy Act of 1969. It is also not in conformance t-ih ",.: ' .k guidelines for the preparation of environmental impact state ants L\i Cs' I//I C, C published by the Council on Environmental Quality (Federal egister, Abiels~ Ledge// / / ....... �r'eZ ., // Volume 38, Number 147, Part II, August 1, 1973, see Exhibit P.) V/ /,/ / ::::'::'":'"?'- " ".�e , ' f and the U.S. Department of Commerce Administrative Order on reparing X/ s'.ight E '. .I , / .. gS documents (see Exhibit Q.). SITE LOCATION STONY POINT DIKE t'z Wareham, Massachusetts environmedn LN.d ",, L"I I IJ collaborativeMMF%5'. As the CEQ guidelines state, the purpose of the EIS process is to: ment from the Stony Point Dike proposal is of sufficient magnitude to require a separate environmental impact statement. provide agencies and other decisionmakers as well as members of the public with an understanding of the 2. The Draft Environmental Impact Statement is insufficient to potential environmental effects of proposed actions, satisfy the requirements of the Massachusetts Environmental Policy to avoid or minimize adverse effects whenever Act. possible, and to restore or enhance environmental quality to the fullest extent practicable. In In its "Note to Readers," the Draft EIS states the "the Massachu- particular, agencies should use che environmental setts Executive Office of Environmental Affairs assures that impact statement process to explore alternative this environmental impact statement satisfies the requirements actions that will avoid or minimize adverse of the Massachusetts Environmental Policy Act." impacts and to evaluate both the long- and short- range implications of proposed actions to man, However, the Rules and Regulations published for the preparation his physical and social surroundings, and to of MEPA EIS reports state that "...all agency decisions shall nature. include findings which describe environmental impact and state that all feasible measures have been taken to avoid or minimize It is difficult to conceive that this Draft EIS meets these re- adverse impact..." and the "...an environmental impact report quirements in only seven. pages of rather cursory analysis. should not be used to justify or support a decision which was already been made." (see Exhibit R.). for Rules and Regulations. The cover letter and text of the Draft EIS states that the document is to evaluate the environmental impact of the "....proposed Since the MEPA legislation generally parallels the 1EPA legis- Massachusetts Coastal Zone Management Program... pursuant to lation, the criticism of the Draft EIS mentioned above also applies P.L. 92-583. Approval would permit implement grants to be awarded to MEPA, and that the EIS does not satisfy the requirements of to the State, and require that Federal actions be consistent the Massachusetts Environmental Policy Act. with the program." It must be assumed that all of the recommen- dations of the CZM program as expressed in the volumes of the CZM 3. The recommendation of the Stony Point Dike is in opposition to plan and the Draft EIS are also evaluated in the EIS, since no the stated policies of the CZM plan. qualifications are added. If such is the case, this Draft EIS does not meet the criteria of detailed analysis of environmental As previously mentioned, this review report of the Draft EIS does impact stated in NEPA and the CEQ Guidelines. not intend to question the validity of the Coastal Zone Management Program or the goals of its policies. Rather, this review intends Such a broad and general analysis of potential environmental to show that the recommendation for the Stony Point Dike does not impacts can only render the EIS. process meaningless. It cer- conform to the policies of the CZM plan. Therefore, one of the tainly is not a healthy precedent for agencies whose aim it is state alternatives that the Associate Administrator of the Federal to protect the coastal environment to prepare such an inadequate CZM Program should consider is to revise the Massachusetts Coastal analysis of potential environmental impact. It can serve as an Management Program to delete the Stony Point Dike proposal (see example for other interests whose primary aim is not the pro- 4. Alternatives Considered, in the Summary section of the Draft tection of coastal natural resources. EIS). In any event, this Draft HIS cannot be construed to be an The specific policies that the Stony Point Dike proposal is not evaluation of the potential environmental impact of the Stony in conformance with include the following: Point Dike project -- and in effect a legitimation of that proposal. On Federal actions of such wide-ranging scope, the CEQ Marine Environment: Policies 1, 2 and 7. Guidelines states the "...subsequent statements on major indivi- dual actions will be necessary where such actions have significant Coastal Hazards: Policies 8, and 9. environmental impacts not adequately evaluated in the program statement." Recreation: Policies 21, 23, 25, and 26. Therefore, regardless of the action taken on the Draft EIS by the General Development and Public Investment: Policies 34, 35, 36, U.S. Department of Commerce, the potential impact on the environ- 37, and 38. 6 7 How the Stony Point Dike proposal is in opposition to these policies is described in the next chapter of this review. 4. The recommendation for public access and a major recreational beach Review and Comment on: on Stony Point Dike is unadvisable because of its poor recreational State of Massachusetts Coastal Management Draft potential and hazard to its users and the environment. Environmental Impact Statement This is so for the following reasons: - The major part of the sandy beach at the dike disappears The primary objective of this review is to demonstrate :hat the D aft during high tide conditions, leaving only a boulder edge. Environmental Impact Statement, prepared as part of the approval of the Massachusetts Coastal Management Program under S ction 306 - The Cape Cod Canal southern c~hannel approach is in close of the Federal CZM act of 1972, does not adequately assess the env irn- proximity to the dike., and the danger exists that swimmers mental impacts resulting from the proposal to construct a ccess o d will be able to swim into the channel, exposing themselves to to, and to develop the Stony Point Dike in Wareham as a major publi danger from passing ships and swift currents. At points along recreational facility. the dike, it is possible to walk out to the edge of the channel at low tide. Rather than give a random criticism of the Draft EIS, t! e approach here has been to critique this document in the format op an Enviro: ntal - There is a danger that pollution from the sewage disposal Impact Statement. In this way, all of the negative env ronmental system on the dike will contaminate existing shellfish beds impacts of the Stony Point Dike proposal can be adequately assesse adjoining the dike. and the omissions of the Draft HIS put in the context pt what an adequate environmental assessment of this project shoulc include. - The development of the dike as a recreational area will detract from the efforts by the town of Wareham to revitalize commercial( recreation centers in other sections of the town. These and other factors are explored more fully in the next chapter. S. The Stony Point Dike recommendation is not in conformance with the recreational and economic planning objectives of federal, state and local planning agencies. The nature and extent of this planning inconsistency is detailed in section 3.6 of the next chapter of this review repdrt. 6. The dike is now serving an important - and suitable -- recreational, economic, ecological, and navigation protection function, and that the proposal for the Stony Point Dike will detract from these existing functions. These functions are also fully detailed in the next chapter. 7. The dike proposal represents a costly approach to providing increased public recreational beach area, and that this represents a poor cost/benefit ratio when compared to the potential of expanding existing recreational beach areas within the region. 9 1.3 Access road location: Draft Environmental Impact Statement In the description of the proposal in the CZM plan, no indication is given as to where the access road will be 1. Description of the Action placed. In providing public access to the dike through Great Neck, various alternatives are possible: 1.1 Nature of the action to be taken: - Will the increased volumes of traffic require the widening The Massachusetts Coastal Zone Management plan has recommended of Neck Road back to Route 6? that the State Department of Environmental Management purchase an easement on Great Neck in the town of Wareham, Massachusetts - Or will a new access road from Route 6 or 25 be more to provide public access to the Stony Point Dike, and its advisable and feasible? beach. The dike is owned by the Federal Government and main- tained by the U.S. Army Corps of Engineers. The function of - Alternatively, if Neck Road (Neck Road as described in the dike is to protect the southern channel approaches to the this report refers to Great Neck Road in the town of Cape Cod Canal. Wareham) is not proposed for widening, what effect will this have on traffic congestion and on residents who The Associate Administrator of the U.S. Department of Commerce now live along the road? has been asked to approve the Coastal Management Program of the Commonwealth of Massachusetts, pursuant to P.L. 92-583. These alternative impacts are not discussed in the Draft EIS. Approval would permit implementation grants to be awarded to the State, and require that Federal actions be consistent with 1.4 Objectives to be accomplished by the project: the program. Implementation grants would allow realization of proposals contained in the CZM plan, including projects The Draft EIS does not describe what recreational objectives such as the access road to the Stony Point Dike. are to be accomplished by the project, or why this project can satisfy these objectives more effectively than other 1.2 Recreational facilities: alternatives. This is especially relevant as it refers to the cost/benefit of developing this site as opposed to the Among the many criticisms that can be made concerning the Stony development of other sites within the region. Point Dike proposal is that the project is inadequately described. Is only public access to the dike proposed, or 1.5 Who the project will serve: is it to be assumed that the project will include the construc- tion of major support facilities, including bathhouses and No indication is given in the Draft EIS or the CZM plan as parking areas? The construction of these facilities must be to who the recreational facility on the dike will serve, assumed, since it is unlikely that a major access road to and which public agencies will manage and maintain the this area would be constructed without providing for sanitary facilities. and vehicular needs of its users. State sanitary codes would require bathhouse facilities and logic would dictate sufficient parking spaces to accommodate a potentially large number of users. In addition to knowing whether there will be such facilities, an adequate analysis of environmental impact requires where such facilities will be placed. Will they be on the dike, .. .. ..., . itself or on land yet to be acquired on the approaches to the dike? How large would these facilities need to be to accommodate what volumes of projected users? Without such important basic information, it is difficult to evaluate the impact on the environment from such a project. However, it must be assumed that such facilities will need to be provided and that they will have a very tangible environ- mental impact. 11 10 four public beaches, is located here, as are a lyolf ccurse, Sacred Heart Seminary, an Audubon Society sainctuary, cranberry bogs, and farm land. 2. Description of the Environment 2.2 Area vegetation: An adequate analysis of the impact on the environment of a proposed action requires that the existing environment be described in Vegetative cover on the dike is in the process of succession sufficient detail. Assessing the impact on the environment from from grasses to woody perennial cover, whicl. has advance:d to the Stony Point Dike development project would require the the stage where redcedar (JunLperis virginicna) are mak:Lng a following apalysis: prominent appearance. Other woody perennials onI the dike include wild rose, bayberry, Lnkberry, and teaclt plum, among 2.1 Land use of the environment: others. Much of the dike is icovered with various wild gIrasses. All of these perennials and g::asses are impcrtarat food sources The Stony Point Dike now serves as an important protective for the great variety of wildLife and wildfowl that frequent the barrier for the southern approach channel to the Cape Cod area. In addition, such cover: also serves an important func- Canal. In so doing, it helps to assure the free flow and tion in stabilizing the soil of the dike from erosion by wind safety of the heavy maritime traffic that uses the canal. and wave action. The dike was originally formed by dredge fill during the 2.3 Area fauna: construction of the Canal. Wind and current action gradually eroded the dike and caused sedimentation of the adjoining The Stony Point Dike and its adjoining marsh aiFroaches at channel. During the last several years, the U.S. Army Corps Great Neck is an enormously productive environment for wildlife. of Engineers has reinforced the dike on either side with large This is so for a variety of reasons, including: granite boulders. Existing access to the dike is through a mile-long unpaved road at the end of Neck Road. This road - the dike environment provides an extensive "ecotonal edge" is private but the owners have given the Corps permission to for wildlife. An ecotonal edge is that boundary that exists use it for maintaining the dike. between various landscape types, e.g. between water fid marsh, or between woodland and field. A productive ecotonal The dike also has some beach exposure below the stone area is one which provides all of the needs of the lLfe rip-rapping, and recreational users now approach the dike by cycle, particularly food, water, and shelter, The dLke boat to swim, picnic, fish, or dig for clams. Many persons and its upland approaches has all of these in abundance, from Buzzards Bay communities now use the dike on any one both for year round wildlife residents and for migral:ing day for these recreational uses. On a pleasant summer wildfowl. The enormous variety of wildlif-e that use the day, these visitors use almost all of the available beach dike are listed in Exhibit L. at high tide. These users have been generally responsible, and the Corps has not seen any reason to post the dike. The dike, because of its relative isolation, it fact serves as a wildlife refuge. Local residents obsen-ef a herd of At the western side of the dike adjoining the neck, the town 6 deer grazing on the dike this spring, and curing bi.rd of Wareham has leased a commercial shellfish grant of 92 nesting season, the dike has been described as "thick:" acres. This grant, now used for quahog aquaculture, is with nesting shorebirds. The relatively undeveloped described in more detail in section 3,4 of this impact upland area of Great Neck in the vicinity of the dike also statement. complements this role of the dike as wildl:fe l3anctuary,. as does the nearby marshes and Audubon Soc:.ety Sancttary. The Great Neck neighborhood of Wareham, through which the proposed access road would be placed, is, as the town's - The extensive mudflats adjoining the dike harbor a wide Master Plan states, "...one of the most attractive and un- range of marine life on which the extensive va!:iety of spoiled areas in Wareham..." Land use is primarily seasonal shorebirds listed in Exhibit L feed. A fa.vor:.te and year-round residential use, with development ranging in feeding spot for many of these birds is the tom's 92 acre density from intensive clustering at Little Harbor to more shellfish aquaculture grant site, where shcreb:.rds takie open development. Little Harbor Beach, one of Wareham's their share of seed clams. Some of the uncommon (for this location) species of shorebirds sighted at the dike include wiLlets, purple sandpipers, western sandpiper, Hudsonian godwit, whimbrel, nrld black skimmer. 13 12 2.4 Local socio-economic conditions: topography, protection from seas and from oil spills) make it an excellent site for the expansion of commercial shellfish The Draft EIS does not describe the local socio-economic operations, Without the dike CZM proposal, there is a possi- conditions in Wareham from which an evaluation of impact bility that the existing shellfish aquaculture beds will be can be made. There is little doubt that the creation of a expanded, thereby strengthening the marine-related economic major public beach on the dike will have a major socio-economic base of the town of Wareham and of the Commonwealth. impact not only on the Great Neck neighborhood of Wareham but an other population centers and recreation areas in the town as well. Without a thorough explanation of the socio- economic trends in Wareham, a description of the impact an the If the access road/swimming beach project is not initiated, town in meaningless. the dike area will continue to be used for non-intensive recreational uses such as swimming and picnicking (access 2.5 Persons or businesses relocated because of the project: by boat), nature study, and for relaxation ina pleasant, serene environment. It has been estimated that upwards of Because of potential pollution problems and use conflicts, 200 people use the dike for recreational purposes on a there is a probability that the commercial shellfish beds pleasant day. This number of visitors is unlikely to will need to be deactivated or relocated. In addition, the disrupt the fragile ecology of the dike or to cause pollution development of the dike area as a major swimming and recreation of the area. The dike will remain one of the few areas on area will result in the erosion of day use of other beach Buzzards Bay where boaters are allowed to beach, rest, swim, areas In town that are contiguous to established commercial or picnic. and residential areas in Wareham. This reduction in day clientele who now support commercial establishments in these Not least of the continued uses of the dike environment is its areas may result in a loss in economic viability of some of passive function as navagational aid to maritime shipping and these establishments, and their forced closing. recreational boaters using the Cape Cod Caugl and the various harbors in Wareham and Falmouth. While the Massachusetts Coastal Plan policies seek to encourage economic development in established centers, the Draft HIS does not explain the impact of the dike proposal on Wareham's existing seasonal and non-seasonal business enterprises. 2.6 Probable future environment if. project not initiated., The Draft EIS does not explain the future environment of the dike area should the project not be completed. An objective evaluation of the probable future environment of the dike area without the beach project would reveal the following analysis: The natural econogy of the dike would continue to evolve into a progressively complex and rich habitat for wildlife, including waterfowl, land mammals, and others. As vegetation an the dike continues to the process of succession from marsh grasses to sea-tolerant woodland, it will become a more hospitable habitat for a greater variety of wildlife. In addition to this greater environmental complexity, the present substantial yield of the existing shellfish beds can be increased considerably by an expansion of the area of the beds far in excess of their present size. The environmental conditions of this section of Buzzards Bay (nutrients, bottom 15 14 3. Environmental Impact of the Proeosed Action Constructing a new access road to the Stony Pj'it Dike -- whether by widening Neck Road, or by constructing a new road 3.1 Effect of the project on land use: on a new alignment -- and developing a major :ecreational facility on the dike will have wide-ranging anld serious The Draft Environmental Impact Statement provides no discussion negative secondary impacts on the economic and social environ- of the impact on the land use patterns of Wareham and the ment of the town of Wareham. Great Neck area from the proposed development. Wareham presents a special opportunity for the Commonwealth Instead, the proposal for the development of the Stony Point to encourage the revitalization of older deveLoped areas Dike contradicts several of the coastal policies set forth in by improving water-based recreational resources. Since many the CZM plan and in the Draft EIS. In its highly perfunctory of the town's existing public swimming beaches; abut older analysis of social and economic impacts, the Draft EIS says that developed residential/commercial centers (incLuding Onset "new development... (on the Coast)...willbe encouraged to beach, Swift's Beach, and Minot Forest Beach), expansion of occur in existing developed areas...," and that "...since the the recreational potential of these areas wouLd have a positive plan seeks to concentrate development in/and adjacent to secondary effect of encouraging economic deve:opment in developed areas through public investment policies, development adjoining commercial centers and thereforealso increase job may occur at higher densities and in fewer places." (III-4,5). opportunities and income generation for Wareham residents. This is an environmentally sound land use policy for a state The Executive Office of Environmental Affairs and the State as heavily developed as Massachusetts, which has few remaining Office of Planning are now strongly emphasizing the use of unspoiled coastal resource areas. it is also the state land federal recreational development funds (Land and Water use policy as promulgated by the Office of State Planning Conservation Fund monies, administered by the Bureau of (see "City and Town Centers: A Program for Growth", prepared Outdoor Recreation, U.S. Department of the Inl:erior) in dev- by the Massachusetts Office of State Planning) and the oloped areas. The stated purpose of this pol:icy is to not land use and development policy of the Wareham Planning Board only provide greater recreational resources for residents in and the Wareham Office of Economic Development (see letters densely developed areas, but also to place thse recreational densely developed areas, but also to place these recreational development projects where they will have a pronounced, positive secondary impact on the local economy. The major impact of a new access road and development of a major recreation site at the dike will be to (1) encourage major recreation site at the dike will be to (1) encourage The proposal for the Stony Point Dike would contradict this more intensive development of the Great Neck area of Wareham, policy by placing new major recreational deveopment away from policy by placing new major recreational development away from against the expressed intent of town and state planning existing built-up areas in town (which now has parking and policy, and (2) in so doing, the project will tend to under- serice facilities for users), while at the sae parking and mine the economic revitalization, physical renovation, and passing an opportunity to integrate l resource ex- expansion of recreational resources in Wareham's older and l resource ex- pansion and economic/income development at these existing sites. more densely developed areas. 3.2 Description of the socioeconomc effects of the project: In addition, a new major access road (or widened Neck Road) on Great Neck will seriously disrupt the land use pattern on Section 1500.8 (ii) of the CEQ Guidelines states that "Secondary or indirect, as well as primary or direct, consequences for the environment should be included in the analysis. Many major Federal actions...stimulate or induce secondary effects in the form of associated investments and changed patterns of social and economic activities. Such secondary effects, through their impacts on existing community facilities and activities, through inducing new facilities and activities, or through changes in natural conditions, may often be more substantial than the primary effect ofthe original action itself." 16 17 * ' ' I ..- Burgess 'G, C 'urs.,e ' ' '.' ''/~~"' Po,.t , !*-===-~'' ..-t for posing conflicts with the dike's navigational purposes. : . .. '-n'. .. ...ht Another source of potential conflict would be the maintenance Little Harbor .., Se! n- e He. A c, : and administrative functions of the dike as a recreational Bach 4 eminary Codn t resource/navigational aid. Would the dike be maintained as _ .=-... Cope a recreation area by the Massachusetts Divisionuf Forests., ', , and Parks, the U.S. Department of the Interior, or the -. / Corps of Engineers? These management impacts of the re- . a : . creational proposal are not analyzed in the Draft EIS. ' empesight ..Cedar I / ' 3.4 Description of project impact on shellfish beds: , The description of the probable impacts of the Stony Point . ht - Dike proposals on shellfish beds in this section of Buzzards '' S toy Bay is also not included'in the Draft EIS. Not only does I. ;p the document not describe the impact, but the existence of ,X/ these beds are not shown on Plate 40 of Volume II, -'isi Me, Massachusetts Coastal Zone Management Program.. This is 'C-:-' � not a minor omission, in view of the fact that these beds / constitute the largest shellfish aouaculture farm in the -r'In9r state. o gPMAtENU.IA--; Although the EIS states that the CZM program is designed to preserve and protect shellfish beds and fishery resources in the Commonwealth, the recommendation for the Stony Point Dike does not support -this goal. Specifically, the dike proposal will have a negative environmental impact on shellfish Li ht resources and tend to contradict policy #1 of the Coastal . - / Zone Management Plan that states: Conserve ecologically significant resource areas (salt marshes, shellfish beds, dunes, . 'o ; beaches, barrier beaches, and salt ponds) ;: /' for their contributions to marine productivity and value as natural habitats., 4 The negative impact of the dike project on shellfish beds :I�h/ adjoining the dike will result from potential 'poaching from the many users of the proposed swimming beach, from pollution / slight originating from the bathhouse septic system (there are no: * town sewer lines in the area), and from general use conflicts A / B between intensive recreational activities and maintenance bf the shellfish aquaculture grant at this location. As ..:..: - .-. the largest farm of its kind practicing aquaculture in /..:'- the state, the success of this commercial grant is extremely \ / i. important not only on its own merits, but especially for / its symbolic value in demonstrating the potential of aqua- * Li gh culture in strengthening the economic viability of the /es� L'edg /jr shellfishing industry in Massachusetts.i - A I A OLitht , , . .5., SHELLFISH GRANT LOCATION 20 STONY POINT DIKE -t'9 Wareham, Massachusetts Great Neck, bringing with it much greater development pressure, 3.3 Project impact on marine navigation: higher densities, and inevitable new town services such as sewerage lines. The town's comprehensive plan specifically No mention is made in the Draft EIS of possible i.mpact on recommended that town planning policy should be directed marine navigation of the Stony Point Dike proposil. towards preserving Great Neck in low density development, a primary reason being to prevent an unnecessary and costly Development of the dike as a major swimming beach will, expansion of town services in this area. however, result in serious conflicts betweern the function of the dike as a swimming beach and the present use af the The Massachusetts Growth Policy Report prepared by the Office dike as a maritime navigational guide. In respore to the of State Planning sums up the logic of this development CeM recommendation of the use of the dike as a major approach very well. This document, compiled from the rec- recreational swimming area, the U.S. Corps f Enineers has ommendations of 330 Local Growth Policy Committees in the expressed strong opposition to the proposal (see letter, Commonwealth's cities and towns, states that: dated November 29, 1977, by Joseph L. Ignazio, CI Lef, Planning Division, U.S. Army Coprs of Engineers wiuch is "Massachusetts communities want to preserve incorporated in this report as Exhibit A. ). their special character and, overall, the character of the state. Villages don't The Corp's position is based on the marginal recreational want to be suburbs, suburbs don't want benefit that will be gained from opening the dike to full- to be cities, and cities don't want to be scale recreational use. In fact, consideration oa: public wastelands. In each community, there is land access was reviewed by the Corps during preparation of a growing awareness that its identity is a 1975 Master Plan for the development of recreational re- tied inextricably to its center. As the sources within the Cape Cod Canal project area. l;uch planning center loses its vitality and its place in was coordinated with the Massachusetts Division of Forests the life of the community, the community and Parks, Massachusetts Division of Fisheries andl Game, the loses its special character and becomes U.S. Bureau of Outdoor Recreation, and the U.S. F:.sh and part of an endless stretch of shopping Wildlife Service. The Corp's master plan study f:ound that: centers, car dealerships, and fast food chains... We get a sense of place -- we Public land access to the dike was deemed in- sum it up -- not from a community's out- appropriate because of the long access through lying neighborhoods, but from its center. private property and more particularly because of the lack of parking and waste That is why the stabilization and revitali- treatment opportunities. The southern end: zation of community and regional centers of the dike is under water at high tide c:nditions is so important to the preservation of the and is completely awash during coastal st:rm unique character of our communities and conditions. In view of the limited :ecreii- of the Commonwealth as a whole. tional potential of the dike area berond :Its existing boater access uses, we believe that Instead of perpetuating separate and dis- no federal funds should be expended :or e:lpan- tinct programs in response to narrowly de- sion of recreational use of the dike, The! fined needs, state government is attempting prime purpose of the dike is to protect the to make all public investment funds part southern navigational approach to the canal. of a center revitalization program..." (See Exhibit A. ). The plan recommends that "... state and federal grant programs give maximum The letter by Mr. Ignazio further states that existing priority to the revitalization of informal recreational use of the dike (with aLccesl: by boat) community centers..." (pages 63-64). is not so extensive as to impair the navigational purpose of the dike and that, "...to date, these viElitorE: have The Draft EIS gives no recognition to the adverse social, not abused their use of the area, and our caral staff has economic, and town financial impact of the Stony Point not seen any need for posting the area." Developing the Dike project, nor does it recognize its conflict with dike into a recreation facility that would attract thou- state and town planning goals. sands of visitors daily would, however, have the 1 tential f10 19 18 Because of the inevitable use conflicts between intensive recreational use of the dike and the management of this shellfish aquaculture grant, the president of Cultured Clam, AInc., operators of the farm, is strongly opposed to the pro- ^ .. \ posal for a major beach at this site. Wareham's shellfish 1| 0 o warden, Edwin W. Studley, also is in strong opposition / , to the beach proposal because of the natural productivity II of these beds that would be threatened by the increased number of users of the dike (see Exhibit D). /}~~~I~~~ I Opposition to the proposal has been forwarded to the Mass- U* F O achusetts Coastal Zone Management office by the Wareham St i~ I Board of Health becuase of the danger to the public health / tm that would exist from sewage seepage into the bay and Aif,/ I/because "...human wastes can carry typhoid bacteria and -/SoD I the pollution of the waters and nearby shellfish beds -~< I / W from this and hepatitis is a matter of concern to us as a Board of Health." (see Exhibit F). The potential Z use conflict and public health danger are also cited by -c _the Wareham Board of Selectmen in their November 16, 1977 motion opposing the beach development project (see Exhibit B). 'W ~ In addition to the concerns of local boards, the state \ a CZM plan (volume 1) emphasizes the pollution danger from septic systems to shellfish beds: -\ FThe conservation of these resource areas (shellfish l\ � 7 beds and other marine sources) can be undermined by activities taking place in adjacent or con- tiguous uplands. These impacts include... the '' At act: leaching of pollutants from septic tanks or -t Ad X g4t the introduction of contaminants from storm W- 2t water runoff on paved surfaces...(p. 80-81). Iw 1 @ :gg The Commonwealth of Massachusetts cannot afford ,.,.,,,., ... ,......_ the continued degradation of biological communities ,O�� I�� ��������-��� ������� - B�-----4 ''2 T ~in its coastal waters due to poor citing of 0) (fC] sewage treatment facilities...p.60). 11 _ ZW0n .d The shellfish grant at the Stony Point Dike is also an :i LZ _ : E= important element in the preservation and rejuvenation of .I .J9 U 8 the shellfish harvesting industry as part of the *JC~O~'L g _ Commonwealth's coastal economic base. This industry is W .J E. most prominent in the coastal waters north and south of LZ 7 Cape Cod and environs. A November 27, 1977 news story 1o . = on shellfish aquaculture in the New England Magazine n[_- � U1~section of the Boston Sunday Globe states that: Cape Cod's shellfish have been sadly and recklessly overfished. As a result, each 0 � year the shellfish crop decreases, and prices - I stagger ever upward. Indeed, experts have _. I ~~begun to wonder whether there will be a shellfishing industry at all on Cape Cod by the year 2000. 22 23 There should be a concerted effort to aid ad improve But in the past few years, science, the business climate in the community in r private industry, and municipal management to foster its development and sound ow have joined forces to confront the shellfish In this regard, it was felt that eve ef t shortage and have come up with a radical should be made to capitalize upon the mar solution to their seemingly inevitable resources of Wareham which, it was fet, a crisis ... It is called shellfish aquaculture. not been utilized to their fullest ec nom c (p. 35 of Exhibit M ). potential. (see Exhibit I ). As the Massachusetts CZM plan states, "...unlike oil or Nowhere in the Draft EIS are the negative imp cts to this coal, marine resources are renewable, provided stocks are shellfish resource described. well managed and habitats are not destroyed.. .Positive, more active steps must be taken to enhance the production 3.5 Description of the project impact on users of the prposed of finfish, shellfish, crustaceans, and algae. recreational development: Resotration of anadromous fish runs, promotion of exten- sive and intensive aquaculture, and improved shellfish The potential adverse impact on users of the rope beach management can increase the benefits accrued by man from area are also not explored in the Draft EIS. Suc a erse the marine environment." (p.43-44) impacts should be evaluated in determining th su1 ta ility of this site for a swimming beach. As the largest shellfish aquaculture farm in Massachusetts, the 92 acre grant at the dike site is an important part of Foremost among these adverse factors is the a tenuaton if this effort. Aquaculture techniques halve the growing not the disappearance of the beach area durin h ide time of shellfish from three years to eighteen months. In (see photograph of the dike at normal hight de o pollowing addition, aquaculture increases the survival rate of page and schematic cross-section of dike. Te imed area shellfish eggs from .001 percent to 95 percent. of the existing sandy beach are cited by the ropso Engineers in excluding the dike area from development a a rocieational One of the more serious obstacles to expansion of the site in planning for their 1975 Master Plan fo th evelop- commercial shellfishing industry in the Commonwealth is the ment of the recreational resources of the Cap Cod C nal scarcity of acreage of commercial beds and the difficulty project area (see Exhibit A ). in opening up new commercial grants. This is due to the conflicts that develop between the reservation of beds for In addition to the unusability of the beach ar a, 9ter factors commerical use and the demand for use of these beds by limiting the site for general public use are t e i aequate resident "family" or recreational users in coastal munici- area for parking available on the dike and conguu palities. Most of the existing grants date back to the early upland, and the potential contamination of the wim ng area 1900's, and new grants are generally hard to come by because by septic systems that would be required to seve of resident opposition. As coastal communities on Cape Cod comfort stations and bathhouse showers at the ite (there is and the southeastern region of the state become more no town sewer service nearby). The large vola o water heavily populated, this conflict will become more acute. that these septic systems would be required to disler e in the very limited area of the dike would be a 9urcs o po- The shellfish area at the Stony Point Dike is not only the tential pollution at the beach area, posing most productive site for shellfish in Wareham but also rep- direct threat to public health but an indirect resents an opportunity to expand the existing bed of 92 through possible contamination of adjoining shllf shbeds. acres into a larger aquaculture site that will not compete These concerns have been expressed by the Corp of En ineers, with existing shellfish beds in Wareham that are now harvested the Wareham Board of Selectmen, and the Wareh Bo rdof by residents for home consumption. Opening up the dike to Health (see Exhibits A, B, and F ). general public access may result in pre-empting this site for commercial development. Another source of danger to potential recreaticnal us rs of this area is the wave action of wakes from shis pa ng Reserving the Stony Point Dike environment for development through the channel approach to the canal. At one ot of shellfish aquaculture is also in concert with the stated along the dike, the edge of the channel is onlapp ately goals of Wareham's Growth Policy Committee. The Committee, 600 feet from the stone rip-rap that shores up the r in its July 15, 1976 statement, has as one of its areas of concern that: 25 24 in*~~~ 4%41i Fe f 2op -re SCHEMATIC CROSS-SECTION SHOWING LOSS OF BEACH AREA AT HIGH T1IDE STONY POINT DIKE wareham, Massachusetts u~jevrolmzir CA n I-4, 0,T -J 0 .(v gr*~ g ~ 4 rD (D r00 Photograph of the western (inland) beach of the Stony Point Dike taken on December 8, 1977 at approximately 4:40 P.M. (estimated high tide at 5:30 P.M. on 12/8/77). Photograph of the western (inland) beach of the Stony Po nt Dike taken on December 8, 1977 at approximately 4:50 P.M. (estimated hi gh tide at 5:30 P.M. on 12/8/77). 28 g 28 -nfl ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~2 level of the dike. At low tide, the channel would be even closer to the edge of the exposed beach. During high tide, there is a danger that ship wakes approaching I the dike would throw swimmers against the jagged stone rip-rapping, and endangering the life of the swimmer. An even greater danger exists from receding waves from ship 7l wakes, creating an undertow that would occur as a complete surprise to the swimmer. This could pose a special danger J to children and poor swimmers. ; What should be of special concern to public safety officials W I and navigation interests, however, is the inevitable problem of thrill-seeking youths who will swim out into the channel Z to "greet" passing ships and pleasure boats. Needless to e say, this can easily become a source of fatal danger to Z IL the swimmer. 'b- This danger cannot be overemphasized, since at certain points OI along the dike, it is possible at low tide to walk from the dike to the edge of the channel. From that point, it is only a Z short swim into the path of passing ships. The extreme danger that this opportunity presents should be reason enough to delete the recommendation of a beach at the Stony Point Dike from the CZM plan. The following pages show a schematic cross-section of how easily the channel edge can be approached from the dike, plus photographs which show the closeness with which ships :. pass by the structure. swift currents on the canal side of the dike, particularly since these currents approach very close to the dike. This Ia can result in swimmers being overcome and swept away by the . , enormous force of the "funneling" effect of wind and current that results form the narrowing of Buzzards Bay at this point. ,IU The swift and unpredictable currents in this area of i Buzzards Bay are well known to mariners, and this reality. Li W X is another factor in the Corps of Engineers opposition to a swimming beach in such close proximity to the Channel. I _ While it can be maintained that swimming could be restricted j X to the western side of the dike, in reality it would be W = difficult to enforce such a prohibition, not only during Z Xoa supervised periods but especially when no lifeguards would be at the site during off-season periods or during the seasonal g period after 6:00 P.M., when supervision ceases at state I . XE ' beaches. Children, as well as adults, would be constantly I 30 4 dd ri ,/Stonly / /. Pt / t~~~~k-~~ - P.E V~~ ~ 10wM tl.2 z ~~~~~~~ Cs. - ~~~~~~~~~~~~~~~-~~~~ 4 5; /// 7' &yht /1 / // ~~~~~~~~~~~~~~~~~~Photograph from the eastern edge of the Stony Point Dike tg:ken on December 8,' /1-***** ~~~~~~~~~~~~~~~~~~~~1977 at approximately 4:20 P.M. (estimated high tide at 5:0O P.M. an 12/8177). Photo shows the accessibility of passing ships to sdmners at the dike. SHALLOW AREA BETWEEN DIKE AND CHANNEL STONY POINT DIKE Wareham, Massachusetts MLLL. oIaoaiE~ 33 4~~~~~ Photograph of one of the "Tall Ships" taken in 1976 from the approaches to dike. This Is the section of the dike where, at low tide, it is possible to walk out to the edge of the channel. m (P M* attracted to the channel side of the dike because of its - Policy 26: This policy states that nlw coastal recreation l greater visual interest due to passing ships and boats. facilities should "assure that both t ansportation access and the recreational facility is compatible with social The Draft EIS does not discuss any of these potential hazards and environmental characteristics of the surrounding that will arise from developing the Stony Point Dike as a community (ies)." (addenda, p.l) major swimming beach. - The dike recommendation is in opposit on to the protection 3.6 Description of the impact of the project on planning objectives and development of shellfish resource , as described in of federal, state, and local agencies: section 3.4 of this review. The recommendation of the Coastal Zone Plan for the Stony - The dike proposal is also in conflict with CZM's stated Point Dike does not conform to the recreational planning objectives of developing small dispersed sites in regions objectives of several federal, state, and local agencies: with a high recreational deficit (pages 192, 197, 198, 214). U.S. Corps of Engineers: - The proposal is in opposition with CZM's goals of The Corps prepared in 1975 a Master Plan for the development avoiding the development of new beacheo where there is of the recreational resources of the Cape Cod Canal project "...inappropriate intensity and mixing of incompatible area (see Exhibit J ). Preparation of this master plan uses..." such as "...physical competi:ion for space, was coordinated with the Massachusetts Division of Forests psychological incompatibility, and des truction of resource- and Parks, the Massachusetts Division of Fisheries and Wildlife, related values." Such conflicts may rnsult in "...reduced the U.S. Bureau of OutdoorRecreation, and the U.S. Fish and health and safety and in deterioration of environmental Wildlife Service. This planning activity included an analysis and recreational qualities (p. 201)." of the recreational potential of the Stony Point Dike. However, major recreational development at the site was - Preferred characteristics of swimming 1eaches expressed discouraged because in the CZM plan include "...undevelopel1 sandy shoreline, safe surf and currents, and parking an� service facilities ...public land access to the dike was deemed (p. 197)." At the dike site, however, the sandy beach is inappropriate because of the long land access minimal and almost disappears twice a 4ay, the currents through private property and more particularly are well-known by mariners for their t eachery, and where because of the lack of parking and waste parking would be inadequate and service facilities treatment opportunities. The southern end of (bathhouses) a hazard to public health. The dike recommen- the dike is under water at high tide conditions dation, then, obviously does not meet C ZM's own criteria and is completely awash during coastal storm for preferred characteristics for swimling beaches. conditions. In view of the limited recrea- tional potential of the dike area beyond its Massachusetts Statewide Comprehensive Out oor Recreation Plan: present boater-access uses, we believe that no Federal funds should be expended for The SCORP plan states that statewide proj ct selection criteris expansion of recreational use of the dike. should respond to recreation demand in high-density deficiency The prime purpose of the dike is to protect areas: "It is particularly urgent that de ands of an urban- the southern navigational approaches to oriented population be addressed... High priorities should be the Canal. (See Exhibit A ). placed on management improvements on exist ing sites within metropolitan areas and aggressive measures should be taken Executive Office Of Environmental Affiars, to preserve all remaining open space withi metropolitan Office of Coastal Zone Management: centers and fringe areas (p. 113)." Volume I of the Massachusetts Coastal Zone Management The SCORP plan also has as its only major swimming beach Program states the following policies that tend to contradict acquisition and development project the Sol th Cape Beach the recommendation for the Stony Point Dike: area in the town of lashpee, which will ad! 7.5 miles of beachfront to full public access in the Cape area. No other beach development project is mentioned in 'CORP. 36 Yi 37 Massachusetts Office of State Planning: 3.7 Description of the impact of the project on site vegetation: The incompability of the public investment strategy represented Vegetative cover on the dike and its environs is in a process by the dike project andpolicies of the Massachusetts Office of succession from grasses to woody perennials and upright of State Planning have been previously outlined here in juniper growth. As vegetative cover has become more varied section 3.2. on the dike, its value to wildlife has increased. The ecotonal edges of vegetation here include woodland to marsh grass U.S. Senate bill: and low shrubbery, and salt marsh grass to brackish water. The dike approaches also include mixed softwood/hardwood On January 25, 1957, a bill was filed in the U.S. Senate by woodland, open marsh, and wetland areas. senators Saltonstall and Kennedy providing for the establish- ment of the Cade Cod Canal National Park in theCommonwealth The vegetative succession process occuring on the dike is of Massachusetts. The area of the proposed park was to in- an excellent example of how nature, when left to its own elude "...lands in the vicinity of the Cape Cod Canal." resources, tends to evolve towards stability with the overall However, the bill states that "land bordering on Stony Point environment. In this instance, vegetative cover has evolved, Dike, land in the area known as Stony Point, and lands through a process of selection, towards establishing itself adjacent to such area shall not-be included in such park." over the existing unstable soil cover and in so doing makes (See Exhibit O.) that soil far less vulnerable to the erosion forces of wave, Wareham Planning Board: precipitation, and wind. As this process of evolutionary successions continues, it tends towards a greater complexity The Planning Board of the town of Wareham has expressed and richness in vegetative types. Among the consequences of strong opposition to the Stony Point Dike proposal during a this variety are more abundant food and cover habitats for public hearing on the Draft EIS held in Fall River on wildlife and a more visually interesting landscape. November 15, 1977, and in correspondence to the Federal Office of Coastal Zone Management (see Exhibit C ). In this The CZH proposal for the Stony Point Dike will require the correspondence, the Board also mentions that the town's- clearing of this vegetative cover and replacing it with an Master Plan recommends that the dike remain as public open expansive paved parking areas. Nowhere in the Draft EIS is space and conservation land only, not as an active recreational this vegetative environmental impact described or evaluated. beach. The board's letter states that the dike proposal is not in the best interests of the town and that it would 3.8 Description of the project impact on wildlife: not conform to other planning objectives of the town. Replacing the existing vegetative cover with a paved parking At a recent regular meeting, the Wareham Planning Board surface will, in one stroke, destroy a viable, productive voted not to endorse or approve the CZM plan recommendation wildlife habitat. Grass cover on the dike will no longer be for the dike. available for grazing by deer herds that live in the area, nor will it be available as food and cover for small mammals Wareham Board of Selectmen: and birds such as pheasant, partridge, and songbirds, among others, that are natives or that migrate through the area. At a regular meeting on November 16, 1977, the Board of Selectmen voted affirmatively on a motion to "...inform the Development of the site as an intensive recreational area CZM that in the interest of the town, it would be unwise to will also disrupt existing nesting and feeding areas of the consider opening up the Stony Point Dike as a public beach wide variety of waterfowl that now make use of the dike accessible by land." The motion states several reasons for and its environs. As mentioned in section 2.3 of this this opposition (see Exhibit B ). analysis, there is an extensive range of waterfowl that are native nesters or migrants that commonly use the dike environ- Wareham Office of Economic Development: ment. Changes in the landscape that will be required as part of the CZM beach development proposal will cause extensive The Wareham Office of Economic Development has informed the disruption to this waterfowl habitat. state CZM office of its opposition to the Stony Point Dike proposal, citing the projects incompability with the economic development plans for Wareham (see Exhibit E ). 39 38 This impact on the area's wildlife is not described or growth and development in damage analyzed in the Draft EIS. prone or buffer areas... 3.9 Description of the project impact on coastal hazardous areas: These goals of the Coastal Zone Management plan are to be commended for their emphasis on protecting fragile coastal One of the primary objectives of the federal Coastal Zone landscapes from inappropriate development and on prohibiting Management program is to discourage further development in development in those areas that are vulnerable to destructive coastal landscape areas which are subject to destructive coastal storms. The CZM policies on coastal hazardous action of the sea. This is reflected in Policy 8 of the areas, as with the other policies of the plan, are unassailable Massachusetts CZM plan which states: and should be supported. Discourage further growth and development in The CZM plan recommendation for the development of the Stony hazardous areas and preserve natural buffers Point Dike, however, contradicts the CZM policy recommendations throughout the coastal zone. on hazardous areas. This is because the dike is itself a barrier reef that was constructed to minimize the drift of Subparagraphs of Policy 8 further state that coastal hazard bottom material into the southern approach channel of the Cape policies should: Cod Canal. The dike represents a hazardous area for several reasons: Restrict new development in barrier beach, dune, and salt marsh significant 1. !During coastal storms, the dike is subject to the battering resource areas to the permitted uses of wave action that completely overtops the dike. Because defined under Policy 1, Marine Environment of this vulnerability to flooding storms, the dike is subject Section. to the strong erosive force of storm wave action. This is true even of those storms which are unexceptional in nature. Policy 1 states that such ecologically significant resource Thb photo on the next page shows the dike almost completely areas should be conserved "for their contributions to marine inundated by flood and wave actions in a photograph taken productivity and value as natural habitats." on February 22, 1976, yet a storm of this intensity is not unfrequent and was not even classified as a storm of any Policy 8 subparagraph b. further states that new development great severity by NOAA, the U.S. Weather Bureau, or the should be conditioned in contiguous upland areas within a U.S. Coast and Geodedic Survey. zone extending landward to 100 feet inland of the limit of the 100 year flood "...to ensure that existing hazards are Existing vegetation on the dike and on the approaches to not exacerbated and that the proposed uses or activities are the dike now stabilizes the surface soil here and therefore appropriate in light of the risks of damage." serves to prevent erosion and shifting of the dike. The CZM plan recognizes that both the Federal government Because of the strong storm wave action that pounds against and the Commonwealth now have substantial statutory authority the dike, it has been subject to shifting in the past, with to regulate development in the coastal areas, and that the result that the dike soil material has filled in the channel development activities of federal and state agencies, as that abuts the dike on its eastern boundary. During the well as those of private interests, will conform to these past several years, the Corps of Engineers has reinforced policies (see footnote to Policy 8 on page II-11 of the the dike edges with large stone rip-rapping to prevent Draft EIS). further shifting and erosion of the structure. This rein- forcing work by the Corps is still in progress. In addition, Policy 8 aims to "encourage and support local floodplain zoning and other management of hazardous areas in 2. The second major reason that development of the dike all coastal towns." represents a hazard is that any structures built on the dike will themselves be subject to damage by storm wave action. Policy 9 of the CZM plan also states that it will: Because of the length of the dike, developing it as a recrea- tional beach would require siting both bathhouse structures Ensure that state and federally funded public works and parking surfaces on the dike itself. Given the exposure projects proposed for location within the of the dike and the severity of the storms that occur here, 100 year coastal floodplain will, (a) not such structures and surfaces would incur extensive-damage exacerbate existing hazards or damage natural during these periods. buffers, (b) be reasonably safe from flood and 4j erosion related damage, and (c) not promote 41 A.n In addition, such storms would tend to make more vulnerable "L2 ^ the septic disposal systems that would be required on the dike to dispose of sewage effluent. Under such conditions, the opportunity for polluting the adjoining shellfish beds will increase. In addition to these hazardous factors, the dike and its approaches are completely within the boundaries of the Inter- mediate Project Flood and Standard Project Flood areas (see Exhibit K ). By recommending development within these projected flood boundaries that would be vulnerable.to damage from these floods, the CZM recommendation for the Stony Point Dike is in conflict with CZM Policies 8 and 9, which o � m | S aim to restrict development along coastal floodplain areas. s5a 11 " S Again, these important environmental impacts on the dike were i, in }siXg gnot described in the Draft EIS. 3.10 Description of the project impact on transportation routes: Policy 35 of the Massachusetts CZM plan, as explained in the Draft EIS, states that major transportation projects "...will require amendment to, or revision of the CZM plan to be considered consistent withthe growth clustering intent of Policy 35..." Such major transportation projects are defined in the Draft weS iEIS as: I ;' M (1) projects involving the introduction of new transportation modes, iB eXL 5;' 5 >t(2) projects involving development of .e ~ ,- _ 8 anew transportation corridors or alignments,. or :: a '-\i,$; f u " (3) projects which involve increases *; ,? ." i.~ .8i:.l ~ in existing designed capacity of greater than 302 (11-31). ,l ,;;l-; _ S vSince the new access road to the Stony Point Dike proposed as part of recreational development of the area will qualify as a major transportation project under definitions 2 and 3 91: above, the access road project will, under these definitions, iit~~~~~~~ I-~ ~ ~require an amendment to or revision of the CZM plan. By this definition, the Stony Point Dike project is described as having a major impact on the environment, and therefore i/ i." '!' '"'� 'should receive a separate evaluation as to its soundness and ~i.:l}';'"'"require its own environmental impact statement. In its transportation implications, the CZM proposal for the Stony Point Dike once again contradicts the stated � ~ c.'-, ,, *. 'i,2,.~::,'~..' - _policies of the CZM plan. Specifically, the often-repeated 143 43 4. Alternatives to the Proposed Action objective of the CZM plan is to encourage clustering new coastal development in existing developed areas, rather than Part IV of the Draft EIS describes the four most: likely reasons scatter new construction across existing unspoiled coastal the Associate Administrator might deny or delay program apprcoyal landscapes. These objectives are made clear in Policies and the six most likely alternatives the State has to submi:ting 35-37 of the CZM plan, among others. the proposed program. However, the Draft EIS states that "...the essential alternative to be considered by the Associate AdmLnistrator In addition, the CZM policies on recreation repeatedly is not to approve the program as submitted (pagit IV-l)." emphasize improving transportation access, user capacity, and physical size of existing State and local recreational The objective of this review and comment is not to obstruct facilities, and those existing facilities in regions with implementation of the Massachusetts CZM Program, but rather to a high need (Policies 21, 22, 23, and 25). In this way, have the State revise its CZM plan to delete the Stony Poin: capital improvements to public recreational areas will have Dike proposal, for the many sound reasons previously stated, an increased benefit in relation to cost. This emphasis on improved transportation access to existing recreation areas What concerns officials of the town of Wareham and resident;3 of will have an impact on the CZM plan's clustering goals, the Great Neck neighborhood is that approval of the Draft EIS "...since the plan seeks to concentrate development in/and and the Coastal Management Plan will preclude atendment of :he plan adjacent to developed areas through public investment to delete the dike proposal. This is not an idl.e concern since the policies...(Draft EIS, page III-5)." Draft EIS states that "if the program is approved, the Stater is unlikely to consider alternatives to program implementation The town of Wareham presents a special opportunity to (page IV-1)." implement the policies of the CZM plan which emphasize improving vehicular and mass transportation access to existing If the only alternatives available are delay or denial of the recreational areas in town, while increasing the viability of program vs. approval of the program incorporating the Stony Point these areas for recreational use. The recommendation for Dike proposal, then it is preferred that the CZ)[ Program be delayed a new access road to the Stony Point Dike area will only open or denied until such time as an amendment is made to delete the up the relatively unspoiled Great Neck area of Wareham to proposal. However, a more preferable course recommended he::e is new development pressures, while undermining local efforts to to amend the CZM plan without delaying adoption of the full CZM revitalize older commercial/recreation centers in Wareham. program, should such an alternative action be available. These concerns have been expressed by the Wareham Board of Selectmen (Exhibit B ), the Wareham Planning Board (Exhibit C ), the Wareham Office of Economic Development (Exhibit E ), and residents of the Great Neck neighborhood (Exhibit G ). Again, no mention of these adverse environmental impacts are made in the Draft EIS, nor is there any discussion of how the Stony Point Dike recommendation contradicts the transportation policies of the CZM plan. 44 45 Probable Adverse Environmental Effects Which Cannot be Avoided 6. The RelationshiD Between Local Short Term Uses of the Environment and the Maintenance and Enhancement of Long-TernmProductivity The Draft EIS devotes one-half of a page to a discussion of what project are likely to have unavoidable adverse environmental impacts, primarily This section of the Draft EIS provides a cursory overview of how the CZM "...major facilities for purposes of defense, transportation, energy program will assist in husbanding the state's coastal resources to requirements and others in which both the state and Federal governments assure their short-and long-term productivity. Once again, however, have interest." It is also stated that ",. .under the CZM Program and have nterst."It isalsostatd tha "..unde the ZM Pogra andthe proposal for the Stony Point Dike does not conform to this description. related Federal acts (e.g., NEPA), each such project will be evaluated as to the impacts on the natural Coastal environment. That is, in- vestigations will be made, alternatives considered, etc." No such evaluation of unavoidable adverse environmental effects are made for proposals set forth in the CZM plan, Indeed, as previously mentioned, the Draft EIS states that "...if the program is approved, the State is unlikely to consider alternatives to program implemen- tation (page IV-l)." The evidence suggested in this review report is that the adverse environmental effects of the Stony Point Dike proposal are avoidable. They can be avoided by deleting the recommendation from the Massachusetts CZM plan. 46 4~3 47 7. Any Irreversible or Irretreivable Commitments of Resources that Would 8. Consultation and Coordination be Involved in the Proposed Action Should it be Implemented Various letters in opposition to the Stony Point Dike proposal are This section of the Draft EIS is also of too general a nature to give a included in the exhibits section of this review report. These adverse meaningful evaluation of resource commitments not only for the CZM comments are from elected officials, town boards, and residents of program but for the Stony Point Dike proposal in particular. the town of Wareham, as well as the U.S. Army Corps of Engineers. It is unlikely that this unanimous adverse comment would have occurred if sufficient consultation and coordination had existed between the CZM staff and local officials. Indeed, the chief of the Planning Division for the New England Division of the U.S. Corps of Engineers states in his letter on the dike proposal that "...our office has not been consulted regarding any of the Volume 2 proposals that could entail possible Corps participation." (see Exhibit A ). This is not to discount the attempt at citizen input that did occur as part of the CZM planning process, but it is clear from the amount of adverse comment on the Stony Point Dike project that, had sufficient opportunity been given to the public to advise on the dike recommendation, the recommendation would not have been incorporated into the CZM plan. However, the opportunity now exists to redress this lack of coordination by responding to the clear opinion of local representatives, residents, and the Corps of Engineers, and amend the CZH plan to delete the Stony Point Dike proposal. Indeed, correspondence from Eric C. Van Loon, director of the State Office of Coastal Zone Management, suggests that such an amendment can occur at this stage in the review process. In a letter to Howard Whiteside, a resident of the Stony Point area, Mr. Van Loon states that: "...all comments will be evaluated and a determination of what changes should occur will be made. Changes will then be incorporated into the Final Environmental Impact Statement (FEIS) and the plan accordingly revised." (see Exhibit H). 48 ; 49 14 December 1977- P OBoxiSS5 Off i~e of Coasti. ~ne Nanag~ntNorth Stanington, Conn. 039. certaini(aeotaertise seclly we opjgt Office of Coastal 7one Management '~~~~~~~~etire to the area. But we do WoE wish to be engulfed in hords o weoer subjet hig to .Elonal oceanic and Atmospheric Administration wr adls nbrainsuh s w e owesfPopeorujcto Att: Ms Kathryn Cousins :~~~~~~~~~~~~~omprc,,rise that might safeguard public and private interests as well~a Bm 3280 tw~~~~~~~~~~~~~~~~~~~~~~~~uiq~ het ue and fragile barrier ahaddJ mshrervinpr - 330 Whitehaven Street N W haes Washington 0 C 20235 iery Dear Ms Cousins, Having read the "State of Mass, Coastal Management Draft Environmental Tmpact. State- .... ment"1, 1we have come to some definite conclusions as concerned property owners an Gurnet . . .1knyFt.-.. Point, Plymouth, Mas r .Jckdon Among the 38 policies adopted by'. the Mass. C Z N we awe concerned %peciffically with "' GereAJack,,V, #9 25, 0 27 and 4 25. A' ,.s.. 4 25 the area is much too fragile to allow expansion of the existing local recreation r.-" 'i*I+1,Cn 06339- **3**~~~~~~~~~' ~~~~~j*.* ~ ~ ~ ~ facilities on Duxbury Beach. 4t-27 Any new development on Duxbury Beach, Plus Hills Beach or Saquish Beach Is con- ~ l pletply umrealistic. because of the limited, almost non-existant back area for these beaches. V . . .;;* 4 26 Proposes local acquisition of Saquish Beach which is the AIR area in policy 26. * " ~~*.i'f~~. 'Vtthout rese-rvation we feel that this-'would be a complete diseater * The Town of Plymout N, . 4cannotb afford police protection for its year around and summer residents. they ony ....A pro"mise us help, in the event of "rape, murder or riot'. " Vf the area is to be preserved at all it will have to be under the protection and control_.!;tV ,of something more responsible, the Faderal Governaent? Perhaps as a separate area of the cape Cad National- eashore? We believe this may be the only way to really protect all of Plymouth Bay and the three towns of Du~xbury, Kingston and Plymouth and the area for contr- oiled public use. We do not wish to belittle the work of the Duxbury conservation Commission and the A2 Duxbury Beeach Reservation in their furtherance of conservation and protection of the. area. But the money is apparently smiply not available to supply sufficient daily supe. vision. it must: be protected throughout the year, if this protection Is to accomplish anything. There is no longer a 11sumaaer season and an off season". The area Is vulnerable and accessible twelve months of the year to everyone with 4-wheel drive vehicles; only a small proportion of these people respect or understand the fragility of this or any other barrier beach. In passing it should be pointed out that in the four and a half miles of beach and A4ines (these latter not respected now even tho they are fenced and posted as conservation * .e)there is not one sanitary facility beyond the north end of the beach. rraro your own conclusions. S Mutual Life Assurance Company of America h A The Ayres Agency H. Sibley. 11 ~ ~~~~~~~~~303 Main Street zuso C ~fes ft. Sibley. II ) Worcester, Massachusetts 01608 rerephone: 754-3215 7- 1, s~~I2-2~* iVl .�s~:a-r~r/~Lt yI~*9-e 0-1) ~1 / /~~;, p-~7 --7 (-- I a-o--ai I-o,L Ofj-o-Wc-. . r,.p, -~ APPALACHIAN MOUNTAIN CLUB B 31 ; ~~~~~~~~Cl A P P ^ L A C H I A N M O U N T A I N C L U B fr J 6; ~S. Sandwlch, Mass. 02537 FIVE JOY STREET BOSTON, MASSACHUSETTS 02108 617-523-0636 December 12, 1977 Office of Coastal Zone Management National Oceanic and Atmospheric Adm. Att: Ms. Xathryn Cousins November 26, 1977 Rooms 3280 3300 Whitehaven Street 1*1 Office of Coastal Zone MRnagement Washington, D.C. 20235 Nationol Ocentic and Atmospheric Administration Room 3280 3300 Whitehaven Street, NW Dear Mss Cousinst Washington, D.D. Regarding the policies of activities proposed on the coast, e.i. 25, 26, 27, Dear Ms. Kathryn Cousins, as property owners at Saquish Beach we both strongly object. There are several reasons of which you are probably not aware of,. IUpon reviewing the draft environmental impact statement pertlining to tne Coastal Zone Management . Vandalism will be on the increase if this area is open to the public. master plan for Massachusetts, our committee and Already approximately 100 plus cottage owners have had their homes invaded chmpter have ome to the following conclusions. during the off season with destruction and stealing, Do you realize how The great majority of policies are not only bene- this would increase especially without policing except on occasion? ficial to conservation and ecological orientated 2. As tax payers, the expense of roads and the maintenance of same would groups, but such areas as harbour priorities, will not be feasible beaause of the erosion b3 frequent storms. Therefore, cuam give our major port areas the industrial and fishing tax dollars would be spent foolishly for this purpose. incentives we need as well. There is, however, one major area that troubled 3. We now maintain the cleanliness of the beaches and non-property owners our group. Several areas that are presently in would add to this burden because of known carelessness of the general public their "wild" state will be acquired by the state and local ruling bodies to be turned into public, 4. There is such a delicate balance now between having sand dunes as pro- unlimited access recreational facilities. Our tection that the public would not be as sympathetic of our needs regarding major difficulties are first that these are in their conservation of Poperty. "wild" state and are breeding areas for shellfish, birds, and small animals. Secondly, many are in PILASE consider the needs of Gurnet-Saquish residents. towns already having several public recreational facilities that could easily be made larger with- Thank you for any consideration you may be able to give us. out the long term ecological damage done by initi' ating road ways, septage areas and beach areas for Simlerely, already fragile resources. One example of this type , e;> -/ ,,- of problem is the liorseneclt Beach area in Westport C tvt where the ecologic'al status of the dunes and off Stephen and Barbara Brune shore areas are already rapidly deteriorating. of Western Point, Saquish Another example of longer duration is that of Wingershiek Beach in Gloucester. I hope our response and opinions will be of some assistance in the final formulation of the impact statement. Respectfully submitted, Stephen E. Driscoll, Chairman AIMC/SEMass. Conservation Committee 867 Drift Ilorad Westport, Mass, SED/Jat '.127 e-D ~ ~~~~~~~~~~~~~~~~~~' 2r~7 d (7A O P NC 33cro ~3~n et.-Olt - *U.S. GOVERNMENT PRINTING OFFICE; 19-/8-261-238/7