Massachusetts Coastal zone management program and final environmental impact statement

[From the U.S. Government Printing Office, www.gpo.gov]

MASSACHUSETTS
COASTAL ZONE MANAGEMENT
PROGRAM
AND
FINAL ENVIRONMENTAL IMPACT STATEMENT

-~o m

1978
Michael S. Dukakis, Governor U. S. Department of Commerce
Evelyn F. Murphy, Secretary National Oceanic and Atmospheric
Executive Office of Environmental Affairs Administration
Eric E. Van Loon, Director Office of Coastal Zone Management

March 3, 1'i)7S

MASSACHUSETTS COASTAL ZONE MANAGEMENT PROGRAM1 - 1978
Final Environmental Impact Statement

U.S. Department of Commerce
National Oceanic and Atmospheric Administration
Office of Coastal Zone Management

Note to the Reader

The Draft Massachusetts Coastal Zone Management Program was originally pre-
pared in two volumes. Volume I contained the CZM Program including coastal
policies. Volume II contained an Atlas of Resources of the coastal zone,
descriptions of Massachusetts' coastal regions, and applied the CZM Program
to site specific opportunity and problem areas along the coast. A separate
Draft Environmental Impact Statement (DEIS) summarizing the program was
also prepared.

In the DEIS review, many commentators remarked that the various program
documents were too long and that it was confusing to determine exactly
what constituted the program.

In response to these comments, the material in Volume I of the Draft Pro-
gram document was substantially edited and has been consolidated with the
Draft Environmental Impact Statement to form this final document -- 1978
Massachusetts Coastal Zone Management Program/FEIS. This combined docu-
ment has been revised to reflect appropriate comments but otherwise
remains unchanged in substance from the previous documents.

Part I and Parts III through VIII of this document, as well as Appendix F,
have been prepared by the federal Office of Coastal Zone Management.
Part II and the other appendices comprise the state program and were pre-
pared by the Commonwealth of Massachusetts. The federal Office of Coastal
Zone Management has reviewed Part II and relies upon it for the description
of the proposed action required as a part of the impact statement.

Volume II, the Coastal Atlas, will still be available for reference pur-
poses while the draft Program document and DEIS serve only as background
materiLal. In addition, the Summary Map which accompanied Volume I is
available at the CZM office.

Note new CZM telephone number: 727-9530

PUBLICATION OF THIS DOCUiMENT APPROVED By ALFRtED C. HOLLAND, STATE PURCHASING AGENT.
4500-2-78-142694 Estimated cost per copy $3.08

THE COMMO)NWEALTH OF MASSACHUSETTS
EXECUTIVE DEPARTMENT
STATE HOUSE *BOSTON 02133

MICHAEL S. DUKAKIS
GOVERNOR

February 7, 1978

The Honorable Juanita Kreps
Secretary of Commerce
Washington, D.C. 20230

Dear Secretary Kreps:

I am pleased to submit for your review and approval the Commonwealthis
Coastal Zone Management Program.

I have examined the program, and as Governor, approve it. The Public and
officials from all levels of government have had an opportunity to review
and comment on two drafts of the coastal Program. In addition, a joint National
Environmental Policy Act-Massachusetts Environmental Policy Act Draft
Environmental Impact Statement on the coastal Program has been reviewed,
and revisions have been made in the Program in response to comments offered
by the public and governmental agencies in the course of this review.

The program represents state policy as it applies to the coastal zone, and,
as Governor, I further certify that:

(a) The Secretary of Environmental Affairs is designated to receive and
administer grants authorized by the Coastal Zone Management Act, including
those for implementing the Coastal Zone Management Program;

(b) The Executive Office of Environmental Affairs, of which the Secre-
tary of Environmental Affairs is the chief executive officer, is the lead
agency for implementation of the Massachusetts Coastal Zone Management Program;
and

(c) The Commonwealth has the authorities required under the Coastal Zone
nement Act and has the organizational structure to implement the Coastal
o Management P ram.

c~erely,/

EVELYN Fr. MURPHY Ioon 0'.iaktt 222&
SECRETARY
February 7, 1978

Dear Reader,

I am pleased to present you with the final Massachusetts Coastal Zone
Management Program/Final Environmental Impact Statement.

This program reflects the tireless efforts of many members of the leg-
islature, local, regional and state officials, and hundreds of interested
citizens from throughout the Commonwealth. I salute the participation of
members of the General Court, the Governor's Task Force on Coastal Resources,
regional CZM Citizen Advisory Committee Members, and the many citizens who
attended general public meetings and smaller issue oriented meetings, who
assisted in CZM Program development. The sharing of ideas, information and
experience at these many working sessions helped to produce a balanced and
wise coastal management program. CZM has been a model example of success-
ful participatory democracy.

* ~~~Coastal Zone Management represents a program for today and a program
for the future. CZM seeks the wise allocation of coastal resources. It
encourages economic development, and port and harbor revitalization. It
will help to maximize past oublic investments in coastal areas, and insures
the wise allocation of public funds in the future. CZM implementation will
insure the protection of important ecological resources. The CZM Program
guarantees better management and administration on the part of state gov-
ernment. And, CZMA requires no new laws to bring such important change to
coastal resource management.

Two draft CZM Programs and a Draft Environmental Impact Statement pre-
ceded this Final Environmental Impact Statement. Comments from government
agencies, officials and citizens have been incorporated into this final
program. The CZM Program has balanced the many competing interests and
needs in our coastal areas.

Through this Coastal Zone Management Program, we have an opportunity
to bring a more reasoned perspective to decision making about future uses
and activities along our fragile coastline. By continuing the citizen-
community-government partnership of the past three years in the years to
come, together we can insure the viability of our coastal resources econ-
omically and environmentally for this and succeeding generations.

Evelyn F. Murphy
Secretary

UNITED STATES DEPARTMENT OF COMMERCE
~ T h e Assistant Secretary for Science and Technology
Washington, D.C. 20230
{202) 377-3111

March 3, 1978

In accordance with the provisions of Section 102(2)(c)
of the National Environmental Policy Act of 1969, we
are enclosing for your review and consideration the
final environmental impact statement prepared by the
Office of Coastal Zone Management, National Oceanic
and Atmospheric Administration, Department of Commerce,
on the proposed Massachusetts Coastal Zone Management
Program.

If you have any questions about the enclosed statement,
please feel free to contact:

Kathryn Cousins or
Richard O'Connor
Office of Coastal Zone Management
3300 Whitehaven Street, N.W.
Washington, D.C. 20235
Telephone: 202/634-4235
Thank you for your cooperation in this matter.

Sincerely,

Deputy Assistant Secre
for Environmental Affairs

Enclosure

-14EPA/NEPA SUMMARY

()Draft Environmental Impact (X) Final Environmental Impact
Statement Statement

Department of Commerce, National Oceanic and Atmospheric Administration,
Office of Coastal Zone Management. For additional information about this
proposed action or this statement, please contact:

Ms. Kathryn Cousins, Regional Manager, North Atlantic Region or
Mr. Richard O'Connor, Assistant Manager, North Atlantic Region
Office of Coastal Zone Management, NOAA
3300 Whitehave Street, N. W., Washington, D.C. 20235
Phone: (202) 634-4235

1. Type of Action

Proposed Federal approval of Massachusetts Coastal Zone Management
Program

(X) Administrative ()Legislative

2. Brief Description of Action

It is proposed that the Associate Administrator approve the Coastal
Zone Management Program of the State of Massachusetts pursuant to
P.L. 92-583. Approval would permit implementation grants to be
awarded to the state, and require that federal actions be consistent
with the program.

3. Summary of Environmental Impacts and Adverse Environmental Effects

Approval and implementation of the program will allow the state to
better coordinate and more effectively implement existing state
authorities for management of its coastal zone. The state will con-
dition, restrict, or prohibit land and water uses in some parts of
the Massachusetts coast, while encouraging development in other parts.
Each coastal municipality will retain primary responsibility for man-
aging land use along its coast. The impacts of the Massachusetts
Coastal Zone Management Program will be general beneficial, although
there may be some adverse, short-term economic impacts on coastal
users, and the program will entail irreversible commitment of some
coastal resources. The Massachusetts Coastal Zone Management Program
will produce positive and negative impacts.

4. Alternatives Considered

A. Federal Alternatives

The DEIS outlined the four most significant reasons why the
Associate Administer might deny approval of the Program. The
comments received on the DEIS indicated these four alternatives
remain the most appropriate. He could deny approval if:

1. the Program is not adequately comprehensive to achieve the
goals and objectives of the Coastal Zone Management Act.
2. the Program does not have the authorities necessary to imple-
ment the Program.

3. the national interest in the siting of facilities in the
coastal zone was not adequately considered.

4. the Program does not meet all the specific requirements of
the Coastal Zone Management Act.

B. State Alternatives - The state could:

5. revise the Program policies.

6. seek additional legislation.

7. restrict under existing authorities all of the state's
unrestricted significant resource areas prior to Program
approval.

8. promulgate all regulations prior to Program approval.

9. revise the landward coastal boundary.

10. withdraw the approval application and continue program
development, or attempt to use other sources of funding to0
meet the objectives of the proposed coastal management
program.

5. List of all Federal, State and Local Agencies and Other Parties from
which Written Comments were Received

Over 157 written comments were received on the DEIS. They are
listed in Appendix F.

6. This FEIS was submitted to CEQ onMr,.

TABLE OF CONTENTS

Part I: Overview (Chapter 1) 1

1.1 What the Federal Program is Going to do that is New 2
1.2 Federal Coastal Zone Management Act 8
1.3 Cross Reference of Program Requirements (Section 306)11

Part II: The 1978 Massachusetts Coastal Zone Management Program: 13
Description of the Proposed Action

Chapter 2: What is the Coastal Zone Management Boundary 14
Chapter 3: Resource and Use Issues of the Massachusetts Coast 15

3.1 Marine Environment 15
3.2 Coastal Hazards 17
3.3 Visual Environment 19
3.4 Ports and Harbors 19
3.5 Recreation 26
3.6 Energy Facilities 29
3.7 General Development and Public Investment 32

Chapter 4: Coastal Policies 34

Chapter 5: How the Program Affects Development Activities 100
Within the Coastal Zone Boundary

Chapter 6: Managing the Coast: Key State Agencies and 105
Authorities

6.1 Office of the Secretary of Environmental Affairs 105
6.2 Departments within EOEA 108
6.3 Agencies Outside EOEA 109
6.4 Improved Agency Coordination 110
6.5 Statutory Authority for Each Policy 113
6.6 Summary and Status of Authorities 116
6.7 Improving the Permit Process 120

Chapter 7: Public Participation; Citizen Participation, 123
Federal Agency Participation, and Coordination
with other Plans

Chapter 8: What the Program Means to Local Communities 127

Chapter 9: The National Interest and Consistency of 130
Federal Actions

Part III: Probable Impacts of the Proposed Action on the Environment: 155
Impacts Directly Resulting from Federal Approval

Chapter 10: Summary of Probable Environmental, Social and 157
Economic Impacts
Chapter 11: The Probable Impacts of Approval on Existing 163
Management Authorities

Part IV: Alternatives to the Proposed Action 176

Chapter 12: Federal Alternatives 178

Chapter 13: State Alternatives 183

Part V: Probable Adverse Environmental Effects Which Can Not be 188
Avoided (Chapter 14)

Part VI: Relationship Between Local Short Term Uses of the Environ- 190
ment and the Maintenance and Enhancement of Long Term
Productivity (Chapter 15)

Part VII: Irreversible or Irretrievable Commitments of Resources 193
that Would be Involved in the Proposed Action Should it
be Implemented (Chapter 16)

Part VIII: Consultation and Coordination (Chapter 17) 195

Appendices:

A) The Secretary's Authorities under 21A 197
B) Memoranda of Understanding 205
C) Coordination with Existing Plans: Local, Regional, 220
State, Interstate and Federal
D) Federal Participation in Developing the Program 233
E) The CZM Boundary: Road by Road Description 239
F) Comments and Responses to the Massachusetts DEIS 244
G) The Secretary's 21A Regulation 340
H) The Attorney General's Memorandum Opinion on the 391
Secretary's 21A authority
I) MEPA Amendments43

Definitions43

CHARTS AND FIGURES

Coastal Embaymnents and Estuaries 16

Critical Erosion 18

Proposed Designated Port Areas 20-24

Coastal Recreation 28

Energy Facilities 30

Areas for Preservation or Restoration 41

Proposed Major Transportation Improvements 93

Sewer Service Areas 97

Executive Office of Environmental Affairs 106

Process for Waterways License and Wetlands Protection

Permit 121

Part I.

Overview
Chapter 1

PART I

1.1 OVERVIEW

THE MASSACHUSETTS COAST

The Massachusetts coast winds and meanders over an incredible 1,200
miles of rocky shore, sand beach, productive estuaries, fragile salt
marshes, massive urban harbors, smaller town harbors and marinas, wide
open spaces, tidal flats, and dozens of islands.

For over 350 years, the Massachusetts coast has offered protective
shelter, natural ports, and a means of commercial livelihood for genera-
tions of Americans new and old. Much of the history and evolution of the
United States emanates from Massachusetts' ports of call -- Newburyport,
Ipswich, Salem, Boston, Plymouth, Provincetown, New Bedford, Fairhaven,
Fall River, Edgartown, and Nantucket. Today, many Americans come to the
Massachusetts coast to relive a part of U.S. history by visiting sites
such as Old Ironsides at the Charlestown Navy Yard in Boston; Plymouth
Rock in Plymouth, Massachusetts, the site of the Pilgrim's first landing
in America; or the historical site and museum celebrating the Boston Tea
Party. Other Americans are touched by the Massachusetts coastal experi-
ence through the writings of Hawthorne,.Melville and others. To visit or
live in Massachusetts is to daily experience the roots of American
history, culture and lifestyle.

Massachusetts' coastal traditions and values live on. Many
Massachusetts citizens still live by the sea, work by the sea, and recreate
by the sea. Some 40% of the state's population lives in Massachusetts
coastal communities, an area comprising less than a quarter of the land
mass of the Commonwealth. More than half of all current development in
the state occurs in the coastal zone. Many suburban and rural coastal
communities have experienced two-fold, three-fold, and in some cases
four-fold increases in population over the past ten years. This is
especially true for the south shore suburban communities and some of the
towns on Cape Cod. Simultaneously, the former nerve centers of
Massachusetts' life, the urban ports, have experienced declining popula-
tions and revenues. Boston, Salem, New Bedford and Fall River fall into
this category.

The coast supports facilities and industries important to the
economy of the entire state. Three-fourths of all energy supplies enter
Massachusetts through an urban port. Eighty percent of all electric
power generating plants in the state are located along the coast. Tourism
is a $1.2 billion industry in Massachusetts. More than half of this income
is generated through tourism in coastal areas. Commercial fishing,
including fresh and frozen fish processing, and supporting transportation
and marketing services, is a multi-million dollar industry.

Conflicts on the Coast

The natural resources of the Massachusetts coastal zone are among the
Commonwealth's most important economic resources. Businessmen, tourists,
and residents alike are attracted to the coastal areas of Massachusetts.
These areas experience sustained pressures for development. The coastal
zone typically supports commerce, industry, transportation, housing,
recreation, and aesthetic needs. However, the very resources which attract
so many interests to the coastal zone and support myriad activities and uses
are endangered. Quite often, differing activities demand the same resources,
the same scarce or fragile piece of land and water. But, since the coastal
zone is a finite resource, it is impossible to meet the needs of all of the
conflicting demands for uses and activities along the coast. Therefore,
certain coastal resources, such as marine life and water supply, need to be
carefully managed if they are not to become depleted. The policies and
proposals in the Massachusetts CZM Program attempt to resolve conflicts
where possible and to establish values and priorities for the use of coastal
resources to help mitigate conflicts in the future.

Examples of conflicts in the coastal zone are often evidenced in
Massachusetts newspaper headlines:

-- In the winter of 1976-77, the oil tankers Argo Merchant, Grand
Zenith and Chester Poling, and the oil barge Bouchard 65 sank or ran i
aground in the waters off Massachusetts. Approximately 16 million
gallons of refined oil product were spilled, threatening marine life and
beaches and interrupting commercial fishing activities.

-- In 1976-1977 outbreaks of paralytic shellfish poisoning (red
tide) forced the closing of shellfish beds along the north shore and in
some Cape Cod communities.

-- During the summer of 1977 two and three hour delays were exper-
ienced by Boston area residents driving to Cape Cod for weekend recreation
activity. Many public beaches on the north shore closed their parking lots
to bathers by 11:00 a.m. on hot weekend mornings.

-- The U.S. Department of the Interior continued along its adminis-
trative time schedule leading toward a sale of offshore oil and gas devel-
opment leases. This process has drawn strong statements pro and con from
coastal cities and towns.

Each of these subjects suggest problems in comprehensive resource
management.

Solutions to issues and problems of erosion, flooding, dredging,
sewage treatment, protection of critical environmental areas and
resources, transportation, economic development, port redevelopment, har-
bor management, marine development, air and water quality planning,
improved recreation facilities and access and energy facilities siting,

all call for a broader perspective, a regional or state perspective. The
Massachusetts Office of Coastal Zone Management in the Executive Office of
Environmental Affairs attempts to provide a regional or statewide perspec-
tive on issues and problems that transcend town boundaries. Massachusetts
CZM will not interfere with traditional decision making important only to
a single locale.

Over the long run, the Massachusetts CZM Program will protect the
coastline's natural riches and insure for all the residents of the Common-
wealth that the environmental and economic value of the Massachusetts
coastal zone will be sustained, and even enhanced.

The Management Program

CZM has developed a management program which offers technical
assistance to communities, provides for federal consistency with CZM poli-
cies, and above all, sets a high priority on placing the state's regulatory
and management programs in order and making them work in a more assured,
timely and consistent manner. Many of the values, priorities and policies
in the CZM Program were developed with the help of hundreds of citizens and
officials. In its earliest days, Massachusetts CZM made a commitment to
involve as many citizens as possible in the development of the coastal zone
management program. An open participatory process was the one way of
assuring the development of a management program that would grow from the
demands of citizens and communities, and meet the immediate and long term
needs of citizens and government. The Governor's Task Force on Coastal
Resources, regional CZM Citizen Advisory Committees and frequent public
meetings helped CZM to understand the concerns of citizens and officials.

A Management System Built Upon A Sound Existing System

During the 1960's and early 1970's, Massachusetts led much of the
rest of the nation in passing environmental legislation. The Commonwealth
was first in the nation to pass legislation to protect irreplaceable
coastal and inland wetlands. The establishment of local conservation com-
missions served as a model for the rest of the nation. The state was first
in establishing a series of town forests. Legislation protecting and
restricting inland and coastal wetlands was improved; the establishment of
Scenic Rivers and Highways became possible; .and much more. However, the
pace with which this legislation was enacted made it practically impossible
for the executive branch to keep pace with sound, efficient management of
newly enacted programs. Often, appropriations to implement the programs
lagged behind the enabling legislation. Management of these programs, up
to recent times,was fragmented, uncoordinated, and in some instances,
seemingly non-existent.

However, in 1975, the reorganization of the state's environmental pro-
grams into the Executive Office of Environmental Affairs became law. Reor-
ganization placed environmental regulatory, funding and other
environmental management programs under a single administrative
director, the Secretary of Environmental Affairs. (The National Council
on State Governments has called the reorganized Massachusetts environ-
mental agency one of the top two environmental agencies in the country.)
Reorganization provided the administrative structure to bring coordination
and efficiency to environmental programs.

The Secretary of Environmental Affairs was given broad ranging respon-
sibilities for setting environmental policy, and for ensuring consistency
with all EOEA departments. The Secretary of Environmental Affairs placed
management reform and improvement as the first goal of reorganization.
As with any business merger, it takes several years to implement a reor-
ganization completely.

In developing a coastal zone management program, the Secretary had
an opportunity to put reorganization to the test. Here was a program that
needed to draw upon Environmental Affairs as a reorganized agency with
expanded responsibilities, which would utilize and improve the management
of new and existing programs, and had the backing of federal financing to
help the state overcome its eco-nomic-management problems. Through the CZM
Program, the Secretary of Environmental Affairs has begun to integrate and
coordinate the many areas of statutory responsibility of the agency.

The coastal zone management program represents the next step in the
state's evolving effort at instituting better management. The CZM program
represents a deliberate systematic effort to bring all state environmental
legislative authority to bear on a specific region of the state - the
coastal zone. Under coastal zone management, the Commonwealth will assess
the impact of proposed activities in the coastal zone, encourage those
activities that are consistent with coastal zone policies, and discourage
or prohibit those that are inconsistent. The policies presented in the
program state publicly the Commonwealth's needs, desires, goals, and
priorities for activities and uses in the coastal zone.

Federal CZM funds will be directed to existing agencies with coastal
management responsibilities under the CZM program, which are now under-staffed,
under-funded or unfunded. The Coastal Wetlands Restriction Program, for
example, represents one of the many regulatory and management programs in need
of funds or staffing. These CZM-funded personnel, applying CZM policies on
a daily basis, will ensure CZM continuity and integration into state govern-
ment. CZM funding will facilitate better, more comprehensive, and timely
decision-making by state government in coastal areas.

A Management System That is Useful and Used

A management system must represent more than details. It must draw
upon the strengths of government, the wisdom of the citizenry, and it
must use existing legal and institutional tools. Massachusetts has both
strong state government and strong local government. Recognizing this
fact, and building upon it, is a prerequisite of a useful and used manage-
ment system.

The Southeast New England (SENE) Study stated, "Municipalities should
continue to make the bulk of land use decisions because they are of local
significance; for those development decisions which because of their size
or effect on certain critical resources will affect more than one community,
a regional or state perspective will be needed." CZM agrees with this
conclusion.

Recognizing the strength of home rule, CZM will not dictate to commun-
ities. Rather, under CZM, the state will play a more effective "~resources
role" to communities providing information, technical and financial

O ~assistance, and specialized personnel when needed on the local level.
The state has a clearer role pertaining to developments of regional benefit,
including energy facilities, sewage treatment plants, new transportation
systems, and recreational facilities as a result of CZM. With additional funding
from CZM, improved administration of existing laws can be expected.

State funded resource personnel will be available upon request to
assist local units of government to respond quickly, reasonably, and in
a more informed manner to local permit approvals. If desired, CZM will
prepare a series of model land use by-laws which communities may choose
to adopt to improve conditions in the locale.

Many of these CZM ideas came from Citizen Advisory Committee members
and other interested citizens and officials CZM has worked with over the
past three years. Similarly, citizens were suspicious of creating a new,
potentially cumbersome, expansive bureaucracy at either the state or
regional level. There was little public support for regional government.
In general, citizens expressed concern about the day-to-day management of
existing state programs. "Put your own house in order first," CZM was
told, "before you begin looking for new authority." Improvement of the
state's managment system became the highest priority of CZM. There would
be no new layers of bureaucracy.

Changes have already begun. For example, the Department of Environ-
mental Quality Engineering has undergone an internal reorganization which
will help CZM to reach many of its goals. Some regulatory laws will be
administered from regional offices, allowing state laws to better meet
regional and local needs. A comprehensive permit tracking program will
help to keep the state to a known time schedule. A-comprehensive permit
application form will simplify permit application procedures. Overall,
these changes will help to streamline and unify the Commonwealth's environ-
mental regulatory programs, and to reduce the amount of time necessary to
receive state environmental decisions on projects. This will all be
accomplished without any loss in the depth or quality of state analysis in
permit approvals.
Finally, to be a used and useful management system, planning and policy
materials like maps, data and guidelines for implementing policy must be
widely accessible to officials at all levels of government and to any
interested parties. Copies of this document, the CZM Atlas and the March
1977 Draft Program will be in every coastal town hall, every coastal library,
and the offices of regional, federal and interstate agencies. These CZM
materials were designed to be used and they will provide public accountability
to state programs and decisions. Almost a thousand citizen groups - including
real estate, commercial and civic interests - have copies as well.

What the Program Is Going to Do That Is New

1) Improved Administration of Existing Laws by EOEA Agencies: A
third of CZM's federal grant will be directed to the agencies of Environ-
mental Affairs with specific management authorities in coastal areas. These
departments will improve their operations and procedures with CZM funding.
O ~CZM funds will allow the Department of Environmental Quality Engineering
(DEQE) to implement a computer tracking system for expediting permit deci-
sions. Where necessary, EOEA departments will revise or write new regula-
tions to clarify administrative procedures, establish agency review dead-
lines, improve criteria for evaluating projects, and improve the predicta-

bility of approval or non-approval of proposed projects. DEQE's Wetlands
Protection Program and Waterways Programs, and the Department of Environ-
mental Management's (DEN) Wetlands Restriction Program will be the

principal recipients of these funds.
2) Financial Assistance to Coastal Communities: About a third of CZM's
federal funds will be made available on an annual basis to communities
for waterfront renewal studies, port and harbor development planning,
evaluation of dredging and dredged material disposal options, and other studies
of a related nature which will further the implementation of the plan.

3) Technical Assistance: A small central CZM staff composed of
experts in marine biology, geology, coastal engineering, planning, and
legal matters will be available at the request of local officials to
assist communities in resolving technical problems (such as erosion con-
trol) and in developing zoning by-laws or other controls to improve manage-
ment of coastal areas at the local level. Combined with the financial assis-
tance, about a half of CZM's federal grant will be directed at local
assistance.

a) Wetlands Restriction Program: CZM funds will be used for
increased staff to expedite the state program to place deed restrictions on
significant salt marshes, shellfish beds, barrier beaches, salt ponds, dunes
and beaches throughout the coastal zone.

b) Wetlands Protection Program: CZM funds will be used for
increased staff and for revising current regulations. This will enable
DEQE to collaborate with local conservation commissions in administering
this law more efficiently and consistently. The law regulates dredging,
filling and alteration of unrestricted salt marshes, shellfish beds,
barrier beaches, salt ponds, dune and beaches and other coastal Wetlands.

c) Waterways Program: CZN funds will be used to develop new
regulations and increase staff capabilities. The Waterways Program
licenses activities which involve the use of public lands seaward of mean
low water line -- e.g., bulkheading, piers, groins, and dredging. The new
regulations will clarify the objectives of licensing: to protect naviga-
tional rights; minimize adverse downcoast effects of erosion control struc-
tures; minimize adverse environmental effects of dredging and disposal; and
for projects requiring a Waterways permit, to give priority in designated
port areas to maritime dependent development.

4) Siting Energy Facilities: The Energy Facilities Siting Council
(EFSC) is the existing state agency responsible for approving energy
facilities. The EFSC evaluates the need for proposed facilities, envir-
onmental impacts and costs to the consumer. Through a memorandum of
understanding with CZM, the EFSC has agreed to consider the CZM Program
in its deliberations and to require applicants to consider at least one
alternative site for each facility proposed for location in the coastal
zone.

5) Improved Management and Consistency in the Expending of State and
Federal Funds in the Coastal Zone: Based on CZM policies, CZM will work
with existing state funding programs such as the Waterways Program and the
Division of Conservation Services, to encourage funding for maintenance0
dredging, for improved facilities to serve the fishing industry, for

acquisition of conservation and recreation land and for funding non-
structural solutions to control erosion,

6) Improved Consistency between State and Federal Projects and
Activities: The federal Coastal Zone Management Act of 1972 requires all
federal funding and permit activities in the coastal zone to conform with
the policies of the approved state CZM program to the maximum extent
possible. For example, federally funded transportation and sewage treat-
ment projects proposed for the coastal zone must be consistent with rele-
vant CZM policies. For federally funded projects, CZM will certify
consistency; for federal permits, the responsibility rests with the
applicant.

7) Proposed Areas for Preservation or Restoration (APRs)/Areas of
Critical Environmental Concern (ACECs): Coastal citizens and officials
working with the CZM staff have proposed nominating certain pristine
natural areas for designation as Areas for Preservation or Restoration,
which will be accomplished through the process of designation of Areas
of Critical Environmental Concern during the first year of program implementation.
Once these areas are so designated, following a public hearing process, all
activities requiring state permits in the APRs/ACECs will be subject to MEPA review.

8) Improved Fisheries Management and Continuing Outer Continental
Shelf Oil and Gas Exploration and Development Review: The CZM staff will
work with appropriate federal and state agencies to improve commercial
fishing in the Commonwealth. CZM will continue to work with the federal
agencies responsible for OCS activities to ensure that conflicts with the
commercial fishing industry are minimized and environmentally damaging
accidents are prevented. CZM will expand its program of technical
assistance to local officials to plan for onshore development and the
public service needs associated with 005 activities.

The Massachusetts Coastal Zone Management Program has been
developed in an effort to ensure that the environmental and economic value
of the Massachusetts coastal zone will be sustained and enhanced. The pro-
gram was prepared pursuant to the federal Coastal Zone Management Act of
1972 (P.L. 92-583), as amended. The Office of Coastal Zone Management has
determined that approval and implementation of the state's coastal program
has the potential for causing a significant impact on the environment, and
that, therefore, an Environmental Impact Statement (EIS) should be prepared
pursuant to the National Environmental Policy Act (NEPA). It was initially
determined that the program generally will have beneficial impacts. In
addition, the Assistant Administrator, in considering whether the program
meets the requirements of the CZMA, circulated a draft and this final
environmental impact statement.

1.2 The Federal Coastal Zone Management Act

The Coastal Zone Management Act of 1972 (P.L. 92-583) was passed in
recognition of the importance of the coastal zone of the United States and
the potentially adverse affects of intense pressures upon this national
resource. The Act authorized a voluntary program of financial assistance

to states to manage their coasts and is administered by the Secretary of
Commerce, who in turn delegated this responsibility to the National Oceanic
and Atmospheric Administration (NOAA), Office of Coastal Zone Management. i
The program was substantially modified by Coastal Zone Management Act
Amendments of 1976 (P.L. 94-370).

The CZMA opens by stating "there is a national interest in the
effective management, beneficial use, protection, and development of the
coastal zone." (Section 302(a)). The statement of Congressional findings
goes on to describe how competition for the utilization of coastal resources,
brought on by the increased demands of population growth and economic expan-
sion, has led to the degradation of the coastal environment, including the
"loss of living marine resources, wildlife, nutrient-rich areas, permanent
and adverse changes to ecological systems, decreasing open space for public
use, and shoreline erosion." The CZMA then states, "the key to more
effective protection and use of the land and water resources of the coastal
zone is to encourage states to exercise their full authority over the land
and waters in the coastal zone by assisting states... in developing land
and water use programs ... for dealing with coastal land and water use
decisions of more than local significance." (Section 302(h)).

The state level of government has prime responsibility for achieving
"effective management, beneficial use, protection, and development of
the coastal zone" (Section 302(a)). Under Section 305 of the federal
Act, up to four years of grants are available to 34 coastal states and
territories (the Great Lakes States are included) to finance up to 80
percent of program development costs. General guidelines for the prepara-
tion of management programs are provided in 15 CFR 920.50.

After developing a management program, the state may submit its
program to the Assistant Administrator for approval. If a program has
deficiencies which can be remedied but prohibit full approval under Sec-
tion 306, the state is eligible for additional funding under Section
305(d). Funds provided under this Section can be used for initial pro-
gram implementation and continued program development efforts.
(15 CFR 920.61). If approved, the state is then eligible for annual
grants under Section 306 to administer its management program.

OCZM has published criteria to be used for approving state coastal
management programs and guidelines for program administrative grants
(15 CFR Part 923, Federal Register 40 (6): 1683-1695). These criteria
and guidelines set forth (a) the standards to be utilized by the Assistant
Administrator in reviewing and approving coastal management programs
developed and submitted by coastal states for approval, (b) procedures by
which coastal states may qualify to receive program administrative grants,
and (c) policies for the administration by coastal states of approved
coastal management programs. The Assistant Administrator will review the
management program in accordance with the following general requirements:

1) That the management program is comprehensive. The Coastal Zone
Management Act emphasizes that important ecological, cultural, historic
and aesthetic values such as living marine resources, wildlife habitats,
open space and nutrient rich areas are being lost or adversely affected
by population growth and economic development in the coastal zone. i

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
S ~~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 pursuant to or consistent with
the management program; and

3) That there are sufficient policies of an enforceable nature to
insure the implementation of and adherence to the management program.

As of January 1, 1978, 33 out of 34 eligible coastal states and ter-
ritories had received program development grants and three states (Washing-
ton, Oregon and California) and two segments had received program approval
under Section 306. This is one of several programs coming in for approval
prior to June 1978.

The 1976 Amendments established a new assistance program consisting of
grants, loans, and bond guarantees to states impacted by OCS oil and gas
or other forms of energy development. In order to be eligible for assistance,
a state must be receiving development (305) or administrative (306) grants,
or, in the Assistant Administrator's view, be developing a management pro-
gram consistent with the policies and objectives contained in Section 303
of the Coastal Zone Management Act. Other sections of the Act provide
grants to states tocoordinate, study, plan, and implement interstate
coastal management programs (Section 309); allow the Assistant Administrator
to conduct a program of research, study, and training to support state man-
agement programs (Section 310) and provide grants to states to acquire lands
5 ~~for access to beaches and other public coastal areas (Section 315).

Besides the financial assistance incentive for state participation, the
Coastal Zone 'Management Act stipulates that federal'activities affecting the
coastal zone shall be, to the maximum extent practicable, consistent with
approved state management programs, the "federal consistency" requirement,
Section 307(c)(I)and (2). The state must concur with any applicant's
certification that a federal license or permit affecting land and water
uses within the coastal zone is consistent with the state's coastal manage-
ment program before the federal license or permit can be issued. Section
307 of the Coastal Zone Management Act requires that any outer continental
shelf oil and gas activity described in an exploration, development or pro-
duction plan be certified prior to any approval by the Department of
Interior. All direct federal development activities and certain forms of
federal assistance to state or local governments must also be consistent
with the approved program. Section 307 further provides for mediation by
the Secretary of Commerce when serious disagreement arises between a federal
agency and a state with respect to the administration of a state's program
and shall require public hearings in the concerned locality.

1.3 INDEX TO OCZM REQUIREMENTS

The table below indicates the chapters of this document that describe how
the state's program meets the specific requirements of Section 306 of the CZMA.
In some cases, additional background materials are also noted in parenthesis.

OCZM Requirements Massachusetts Coastal Zone
15 CFR Part 923, Section: Management Program

.4(b) Problems, issues and objectives Chapters 3,4

.5 Environmental Impact Assessment This document meets the requirement

.11 Boundaries Chapter 2, Appendix E

.12 Land and Water Uses to be Chapters 3-5
Managed

.13 Areas of Particular Concern Chapters 3-5, Definitions, (Coastal Atlas)

.14 Guidelines on Priority Uses Chapters 4,5

.15 National Interest in the Chapter 9
Siting of Facilities

.16 Area Designation for Preser- Policy 2 of Chapter 4, Section 6.1
vation and Restoration

.17 Local Regulations and Uses of Chapter 9
Regional Benefit

.18 Shorefront Access Planning Section 3.5, Policies 21-25 of
Chapter 4, Chapter 9, (DEIS Appendix-
EOEA Memo August 1977)

.19 Energy Facility Planning Section 3.6, Policies 8,9 of Chapter
4, Chapter 9, (DEIS Appendix- EOEA
Memo August 1977)

.20 Shoreline Erosion Section 3.2, Policies 1,2,4,15,17 of
Chapter 4, Chapter 9, (DEIS Appendix,
EOEA Memo August 1977)

.31 Means of Exerting State Chapters 4,6
Control over Land and Water
Uses

-2-

OCZM Requirements Massachusetts Coastal Zone
15 CFR Part 923, Section: Management Program/FEIS

.32 Organizational Structure to Chapter 6
Implement the Management

.33 Designation of Single Agency Letter from Governor

.34 Authorities to Administer Land Chapters 4, 6
and Water Use, Gontrol Develop-
ment and Resolve Conflicts

.35 Authorities for Property Policy 24 of Chapter 4; Chapter 6
Acquisition

.36 Techniques for Control of Land Chapters 3. 6
and Water Uses

.41 Full Participation by Relevant Chapter 7, Appendix D
Bodies in Adoption of Management
Program

.42 Consultation and Coordination Chapter 7, Appendix C
with other Planning

.51 Public Hearings Chapter 7

.52 Gubernatorial Review and Letter from Governor
Approval

.54 Applicability of Air and Water Policies 3, 10 of Chapter 4
Pollution Control Requirements

0
Part II1

The 1978 Massachusetts Coastal Zone
Management Program

1 3

CHAPTER 2

WHAT IS THE COASTAL ZONE BOUNDARY?

The Massachusetts Coastal Zone includes the lands and waters within
the area defined by:

The seaward limit of the state's territorial sea
(i.e., 3 miles), extending from the Massachusetts-
New Hampshire border south to the Massachusetts-
Rhode Island border, and landward to 100 feet
inland of specified major roads, rail lines, or
other visible rights-of-way. The coastal zone
includes all of Cape Cod, Martha's Vineyard and
Nantucket.

In order to encompass important sensitive resource areas, CZM examined
several lines which approximated the boundaries of natural systems: coastal
watersheds, coastal floodplains, the 50-foot topographic elevation, coastal
ecosystems, and the coastal "viewshed." Although watersheds extended extra-
ordinarily far inland, the other boundaries clustered normally at a distance
of approximately 1/2 mile from coastal water or salt marsh. Massachusetts
CZM and participating citizens chose an easily recognized road boundary
which approximates the inland edge of valuable natural coastal systems and
includes other land on which major activities could potentially impact
is ~~coastal resources. Roads were thus selected to delineate an administrative
boundary that encompasses coastal biophysical processes.

The names of the roads from New Hampshire to Rhode Island are listed
in Appendix F. The coastal zone includes all islands, transitional and
intertidal areas, coastal wetlands and beaches. In isolated instances,
where the road boundary might exclude coastal wetlands, these wetlands are
included in the coastal zone although the written description follows the
road. Tidal rivers and adjacent uplands are included inland, at a minimum,
to the extent of vegetation affected by saline water. Anadromous fish runs
are included to the fresh water breeding area, if such area is within a
coastal town. Land owned or controlled by the federal government is
excluded by law from the coastal zone.

The boundary determinations were made with the assistance of Citizen
Advisory Committee members, local officials and others. As a result of
this public process, some citizens have suggested the need for a review
of the boundary after a year of implementation. The Cape Cod Citizen
Advisory Committee specifically requested such a review (see Appendix
F). In the interest of better resource management, the CZM Program
is open to a review of the boundary by Citizen Advisory Committees.

O ~CHAPTER 3: RESOURCE AND USE ISSUES OF THE MASSACHUSETTS COASTAL ZONE

MARINE ENVIRONIMENT

The marine environment is one of the most valuable natural and economic
resources in Massachusetts. The salt marsh complexes along the coast provide
a nutrient source important to the ocean food chain. Estuaries, salt ponds
and shallow coastal embayments also provide nutrients for marine life. These
water bodies are areas of high "primary productivity" (the conversion by
plants of solar energy to chemical energy) and are valuable as spawning and
nursery areas for finfish, shellfish and crustaceans. Migratory birds,
particularly waterfowl and shorebirds are also greatly dependent upon the
salt marshes, tidal flats and protected waters of Massachusetts for feeding
.and nesting areas. Major coastal systems are shown on the following map.

Directly and indirectly, the marine environment is important to the
economy of the Commonwealth. About 70 percent of the commercially important
fish catch spends a part of its life cycle in New England estuarine waters.
This fact is significant for places like New Bedford, one of the largest
fresh fish ports on the East coast. Commercial fishing adds approximately
500 million dollars annually to the Massachusetts economy. Massachusetts
finfish and shellfish are sent to markets around the world. In addition, the
coastal waters of the state are heavily utilized for sport fishing, boating,
swimming and other recreational pursuits. These activities translate into an
important recreation-tourist industry in the Commonwealth.

All of these activities are dependent upon clean and productive waters.
Many coastal communities in turn rely on the availability and attractiveness
of these resources for income and employment.

Therefore, it is important that the uses of Massachusetts' marine
environment be carefully managed to avoid the destruction or degradation of
the biological, commercial and recreational qualities which make it such a
valuable, renewable resource. Maintenance of fishery resources for the
benefit of future generations requires the protection of the coastal systems,
e.g. salt marshes and estuaries, upon which both commercial and recreational
species depend for primary productivity and spawning habitat. If habitat for
waterfowl, shorebirds, and endangered species is to be preserved,
restriction of activities in barrier beaches, salt marshes, dunes, and
other coastal environments will be necessary. Dredging, filling, and
disposal practices will need to be managed in such a way that sufficient
access to navigable waters is maintained, while minimizing the adverse
effects of such activities on shellfish beds and salt marshes.

Other adverse impacts on marine productivity must also be balanced
against the need for development and use of coastal resources: the chronic,
sublethal effects upon marine organisms resulting from the discharge of
hazardous substances into coastal waters, the stress of overloading semi-
enclosed water bodies with nutrients from sewage treatment facilities, and,
in estuaries in particular, the disruption of natural cycling and energy
transport patterns through physical interference with natural water movements.

*COASTAL EMBAYMENT
~~ K.. -..~~... ESTUARY
~~J "4 ~ .. 1 1. Merrimack River
2. Parker River-Essex Bay
3. Gloucester Harbor
4. Beverly-Salem Harbor
> .2 ~~~~~5. LYnn-Saugus Harbor
6. Dorchester Bay
4 ~ ~~ 7.Quincy Bay
- / ~~~8. Hingham Bay
9. North-South Rivers
310. Plymouth-Kingston-Duxbury Bay
11. Barnstable Harbor-Sandy Neck
12. Wellfleet Harbor
.7'"" 5 13. Provincetown Harbor
MASSACHUSETTS 14. Pleasant Bay
15. Bass River
-~~~~~~ 16. Lewis Bay
17. Waquoit Bay
18. Wewantic River
8 ~~19. Acushnet River
20. Westport River
*' " ',~' 21. Taunton River- Mt. Hope Bay
922. Cape Poge
(4;< - ~~~~~~23. Katama Bay
24. Nantucket Harbor

NANUCKET SOUND

~~~~24

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

COASTAL ZONE MANAGEMENT PROGRAM

Positive steps toward conditioning these activities will also serve to
preserve and enhance the quality of our coastal waters upon which so many
coastal activities depend.

In addition, positive, more active steps must be taken to enhance the
production of finfish, shellfish, crustaceans and algae. Restoration of
anadromous fish runs, promotion of extensive and intensive aquaculture, and
improved shellfish management can increase the benefits accrued by many from
the marine environment. Finally, the state must take an active role in the
development and assessment of management plans for fisheries resources within
the Commonwealth's three mile territorial limit, and within the recently
established 200 mile federal fisheries jurisdiction limit.

COASTAL HAZARDS

In addition to their value as habitat and sources of primary productivity,
natural landforms (barrier beaches, dunes, beaches and salt marshes) in the
coastal zone provide significant protection from coastal storms, flooding and
erosion. Beaches and marshes dissipate destructive storm waves over their
gradual slopes. Dune systems, if stabilized by beach grasses and other
binding vegetation, prevent direct wave attack against inland areas. Barrier
beaches protect both mainland development and the salt marshes and productive
habitat between them and the mainland.

In order to function effectively as natural buffers, however, these
0 ~landforms and the natural processes which link them together must remain
relatively free from alterations which would disturb their state of "dynamic"
eqiuilibrium. For example, if natural erosion of one beach is providing
sediment material via littoral transport that is eventually deposited on
another beach farther downcoast, it will be important to prevent any action
to retard erosion of the upcoast beach from impeding the flow of sand to the
downcoast beach. As another example, barrier beaches migrate slowly inland
and downcoast, but this movement allows them to maintain their elevation and
protective capability relative to rising sea level and storm forces.

Pressure for development of sensitive buffer areas for residential,
commercial or recreational uses has been significant in the past, resulting
in substantial losses in propery damage during major northeast storms and
hurricanes, and impairing the ability of these buffers to protect inland
development and other unique aspects of the coastal zone. Principal areas
subject to severe erosion are shown on the following page.

Development in areas vulnerable to flooding and erosion in turn results
in pressure for the construction of protective structures. In some instances,
such structures have been effective and are necessary, particularly where
natural buffers have been irrevocably lost. However, they are becoming
increasingly recognized as expensive short-term solutions which may only
exacerbate problems elsewhere along the coast. For example, groins typically
cause accretion on their updrift side, but erosion of the shore on their
downdrift side. Non-structural solutions on the other hand, more closely
simulate natural processes, are likely to be more effective, and avoid the

creation of adverse effects on downcoast areas.

..> - >X-ev< .CRITICA EROSION)
i 4 < nMAS 8

o~ A ,t M�A SSCHSE

r/l~~~~~~~~~~~~~~~~~g* TltURY\ i
i 2
A~~~~~~~ A

-�

aor~ix of
i,~~~~~,

E H.

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
COASTAL ZONE MANAGEMENT PROGRAM
18

With the implementation of the National Flood Insurance Program and other
recent federal programs, the federal government is putting greater emphasis on
non-structural measures to prevent unwise development of hazardous areas and
preserve and restore the natural protective functions of coastal landforms and
processes. CZM concurs with this emphasis and has developed its policies to
promote optimal use of remaining undeveloped buffer land along the coast, to
restore previously impaired buffer areas through non-structural solutions, to
prevent development that would exacerbate existing hazards, and to implement
limited structural solutions in situations where the need for structural
protection is unquestioned.

VSAL, CULTURAL AND HISTORIC ENVIRONMENTS

Of the many issues which concern Massachusetts Coastal Zone Management,
protection of scenic values and opportunities is perhaps the least tangible.
This does not mean, however, that management of visual quality should be
ignored, especially since any alteration in the coastal zone will naturally
have visual impacts. On the other hand, with the exception of features such
as historic sites which are of obvious statewide and national significance,
the majority of visual quality issues are issues of local concern that can
best be handled through zoning, design review or other local controls.

On the state level, two basic concerns of Coastal Zone Management will
be to increase visual access opportunities for the general public, especially
in the mote developed and urbanized areas, and to improve the visual
compatibility of publicly-funded facilities which are sited within the coastal
zone with natural coastal characteristics and features of historical or
cultural importance.

Visual impacts of uses such as housing, for example, can best be
regulated through community zoning. "To'wnscape" qualities and significant
historical or cultural assets can be protected through designation of
historic districts and sites or by other means of local control.

While natural features and man-made features of historical, archeological,
architectural or cultural significance provide the coast with its greatest
visual assets, coastal dependent activities, such as commercial shipping and
fishing are also important integral elements of the visual environment of the
coastal zone. Their facilities and operations need not always be viewed as
eyesores. If access to them is carefully designed, they can provide
interesting visual and educational opportunities. Further, views of urban
harbor areas can be increased if physical access to waterfront areas is
provided around facility perimeters.

PORTS AND HARBORS

Protected bays and river mouths have special value to Massachusetts.
Such coastal features have traditionally provided stable waterfront for piers,
wharves, warehouses, and other facilities. Hence, these areas have developed
into our major ports of water related industry and trade.

The contribution of ports to the Massachusetts economy is not merely a
phenomenon of times past. Various maritime related industries now operating

. .'

:�~~~ ~PROPOSED
<t "9�> ;p -o<_w_ Y~3DESIGNATED
PORT
AREAS

1. Gloucester
~' '3 ( $2. Salem Harbor
3. Beverly Harbor
:9~vJ7 > >2 ..4. Lynn
>_ 5: MF rT7 S 5. Mystic River
6. Chelsea Creek
:: ..... ......-" - --'-6 7. East Boston
gW< >>� ng7 8. South Boston
9. Weymouth Fore River
10. Plymouth Cordage Park
11. New Bedford-Fairhaven
~ ~ ~~~9 12. Mt. Hope Bay

12
.:~" �_�-~J : ., .d..

o SO a

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

COASTAL ZONE MANAGEMENT PROGRAM

PROPOSED PROPOsSED DESIGNATED

DESIGNATED PORT AREA: PR RA
SALEM ~~~~~~~~~SALEM HARBOR GLOUCESTER INNER HARB3OR

Scl 90 Fest

~~~~~GLOUCESTER ES

0 ~ ~ ~ ~~~tae INNE BUEVERL7

\ \- - -" 7 HARBOR

PROOSED DESINAE

SALEM BVRYHARBOR R.

21~~~~~~~~~~GOCSE

! PROPOSED DESIGNATED PORT AREAS:

MYSTIC RIVER

CHELSEA CREEK

EAST BOSTON

Scale in Feet
0 1000 2000

CHELSEA

PROPOSED DESIGNATED PORT AREA PROPOSED DESIGNATED X
MYSTIC RIVER PORT AREA VI

EVERETT CHELSEA CREEK

NORTH END \

PROPOSED DESIGNATED PORT AREA:
WEYMOUTH FORE RIVER

Scale in Feec
ACUSHNET sort St. n 1000 2000
RIVER e% !!;m

n areuvering

> r Fish \ \at, \s QUINCY BAY

\ BIland\ Crov island e FAIRHAVEN
NEW BEDFORD-FAIRHAVEN 500 C

\ K INGSTON

Plymouth Cordage Co.
John r \ \ \ T K S/

Kenedy \ 3\

X \ \ PROPOSED DESIGNATED E
VI20' Channel\ RIVER A:

PLYMOUT CORDUTH

23 Southem S Kin g'
NEW BEDFORD-FAIRHAVEN 0 200 40000

KINGSTON

PLYMOUTH

PROPOSED DESIGNATED

~ 20, Channel PORT AREA:

0 200 400

PROPOSED DESIGNATED PORT AREA:

MT. HOPE BAY

107 ~~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~~~0cc 2 000

~~~~~~~~~~~LYNN

Nhha.e

SAUGUS
RIVER ~~LYNN HAR13OR ANO

PROPOSED DESIGNATED PORT AREA: NHN

LYNN
Paint ~~~~~40' Channel

LEE RIVER ~~MT. HOPE BAY
0 1000 2000

BOSTON INNER HARBOR

Channel Depth 40'

Northern Ave.Re

SOUTH BOSTON

Scal ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~~~~la~e Bnaee
o~~~~~~~~ U S0. 1000

~~0 S "~~~~2

in the major port directly employ approximately 50,000 persons. Some water-
front uses are expected to experience limited growth; these include general
cargo not shipped by container and dry bulk cargo. Others, including con-
tainer shipping, ferry services, marine industry and recreational boating,
exhibit a potential for development and a growing need for harborfront space.
With the enactment of the federal 200-mile fishery conservation zone,
M'assachusetts looks toward a significant revival in its fishing industry.
And, if substantial quantities of oil and natural gas are discovered on the
Georges Bank, we expect to accommodate this trade in our ports also.

Yet the traditional maritime related industries of our ports are not
homogeneous. Fishing, maritime shipping of goods and people, other marine
industry and services such as ships and boat yards and recreational boating
are all vital port activities. All accrue economic benefits to the citizens
of the state. In some instances, however, these activities may compete for
waterfront space and, at times, one use is not compatible with another.

The severest competition for harborfront space occurs in ports having
navigable channels of 20 foot depth or more and a developed transportation
system. These ports are most suitable for maritime shipping and marine
industry. However, many of these areas are major fishing industry ports, and,
as urban centers, face pressure for neighborhood and urban waterfront renewal.
In addition, while the lack of deeper channels makes the siting of a marine
terminal impossible in shallow harbors, no such constraint exists for
recreational boating traffic or other uses requiring shallow drafts in deeper
waters. Hence, such ports face competition from the whole range of waterfront
uses which may or may not have other siting options. (See maps for proposed
port area designations.)

The cost of establishing other deepwater channels, with adequate support
services like sewers, water and transportation links and available sites
abutting the channels is prohibitively high. Existing deepwater channels are
ideally suited for accommodating uses which are of state or national
importance because they provide protein (fisheries), are key parts of the
transportation network (maritime shipping) or support maritime shipping
(tugboat services, ship repair yards) and energy exploration, development and
delivery (OCS support bases, etc.). Hence, the navigable channels of 20 foot
depth or more, together with their abutting lands and inland transportation
access routes, should be treated as important state resources.

In smaller harbors, lacking both the channel depth and the transportation
and utility systems to support major maritime shipping, marine industry, and
the fishing industry, assistance is needed to help develop facilities for
recreational boating, ferry services, and small-scale fishery operations.
The mixture of recreational crafts, fishing vessels, and ferry services lends
an image of bustling harbor activity which makes views of the harbor attractive.
Thus, these kinds of waterfront dependent activities can enhance the character
of waterfronts and can complement urban waterfront renewal.

The dredging of relatively pristine coastal areas and the alteration of
shorelines through filling and bulkheading can have long lasting and severe
adverse effects on marine productivity. The need for dredging and other
alterations can be minimized, however, by maximizing the use of existing ports
and harbors and their associated facilities. In addition, benefits from prior

public expenditures will be maximized and future public costs minimized. The
creation of new ports and harbors should thus be discouraged unless the use
to be accommodated cannot be met in existing port and harbor areas, or unless
the project presents lower risks of environmental damage. First priority
should be placed on maintaining existing channel depths and mooring and
turnaround basins. Deepening of channels and expansion of mooring and turn-
around basins should proceed only when essential to waterfront dependent uses
of particular economic importance to the state or nation - fisheries, maritime
shipping, and marine industry. In addition, both maintenance and deepening
operations will necessitate provision of environmentally acceptable dredge
disposal solutions.

RECREATION

Recreation in its many forms attracts more people to the Massachusetts
coast than any other use. The Commonwealth's coastal recreational resources
support a billion dollar plus recreation-tourist industry and add measurably
to the quality of life for coastal residents and visitors alike. Problems
occur, however, because the growth in demand for water related recreation in
Massachusetts is outstripping the growth in population. Options for improving
the quality and the quantity of recreational facilities is limited. If
available, land for recreation expansion is expensive. Increasing recreational
activities places greater strains on already inadequate transportation
facilities. Different coastal regions have different problems, needs and
opportunities. Acquisition and development of new facilities must be sensitive
to environmental constraints and the scale of adjacent communities. CZM's
recreation policies address these limitations and concerns.

Meeting recreation demands is more difficult in coastal areas than in
any other part of Massachusetts because of the limited availability of un-
developed shorefront land. The 1975 New England River Basins' SENE Study
estimated that approximately 130,000 additional acres are needed in coastal
counties to completely meet future recreation demands. However, the amount of
coastal town acreage developed for non-recreation uses has increased by up to
500% over the last twenty-five years. Some coastal towns, previously
considered rural, currently have little undeveloped coastal land remaining.
Urban areas, chronically deficient in coastal recreational facilities, have
few sites left, and when available, they are often small and expensive, and
have poor water quality.

The magnitude of -need for different types of new recreation facilities
or sites varies from region to region. According to the State Comprehensive
Outer Recreation Plan (SCORP), eastern Massachusetts (Boston Harbor, North
and South Shores) needs more opportunities for all recreation activities;
southeastern Massachusetts needs more public beaches for swimming; Cape Cod
needs more facilities for boating and camping, but provides ample swimming
opportunities, particularly on the National Seashore; and Martha's Vineyard
and Nantucket are deficient in all recreational activities. The map on the
following page illustrates these varying regional needs.

Suitable new sites for recreation are not available in all regions.
Options for redistributing recreation opportunities are limited. Opportunities
in eastern Massachusetts are the most limited, particularly for large sites

such as state beaches and campgrounds. Acquisition of a few large military
0 ~~sites however, could alleviate some of the shortages in this region. Buzzards
Bay, Cape Cod and the Islands offer a great number of opportunities for
developing large recreation sites. However, these sites are distant from
major population centers and serious transportation problems are caused by
large numbers of people driving to and from recreation sites. Additional
recreational development in sites far from population centers will place
increased demands on transportation networks and other municipal services.

One way to minimize congestion and other transportation related problems
is to improve non-~automobile public transportation as a critical first step
in providing or expanding recreational opportunities. Transportation
improvements should foster greater use of underutilized or new recreational
sites, should reduce the volume of the current transportation impacts of
congestion and noise, and should be compatible with the capacity of
recreational sites to accommodate visitors. Appropriate to the scale of these
sites, jitneys, boat service, and bicycle and hiking trails should be developed
and expanded. Such low intensity transportation can provide access without
causing traffic impacts.

Small scale improvements at existing facilities can also add to
recreational opportunities while minimizing environmental and social impacts.
Such improvements include expansion, provisions for multiple use, and improved
maintenance. This strategy is particularly appropriate to eastern
Massachusetts and other urbanized areas where there is little undeveloped land
and use of existing facilities is intense.

* ~~~The high cost of land along the coast is a serious impediment to filling
recreation needs. Traditionally, beaches have been purchased by the public
sector since private enterprise has been unable to make a reasonable profit
on beach recreation given the limited seasons, high acquisition and operating
costs and low revenues. With escalating land values, this trend continues.
The cost of maintenance and operation of recreation facilities can quickly
approach the cost of acquisition, adding yet one more problem of providing
additional recreational opportunities.

In the private sector, marina operators say they are having greater
difficulties establishing and expanding their businesses. Lack of, or the
high cost of waterfront land are cited as the primary inhibitors. Marinas,
boatyards, boat and motor sales have enjoyed high profits compared to other
marine industries during the past few years, and wish to expand.

Acqui-c'-on and development of new facilities must be sensitive to
environmental constraints and the scale of adjacent facilities and communities.
Over-utilization and conflicting uses can degrade the quality of recreational
experiences as well as the surrounding natural and man-made environment. -For
these reasons, CZM policies generally place acquisition of small, dispersed
sites above acquisition of very large sites.

Coastal recreation benefits should not be narrowly construed. Public
and private recreation sites and activities serve as "1gateways enterprises",
attracting visitors who spend money on food, lodging and tourist facilities.
0 ~~Recreation can spur development and impart high values to existing housing
stock as well as to remaining open lands,

vp'"-�.-\ ;s.t- -_ COASTAL RECREATION

~~~~~~~~~7'
A ~~~""�' .A~V ~ Camping-'"'
',. :.^. :_.~Fi: ?. ~.::

" >+-' '::. SUPPLY DEMAND
~. ~ ~ '~'~ '~" ,~,z.SIZE OF SECTIONS REPRESENTS
~ "_" -~ '~ "~ =e1975 ACTIVITY DAYS.
O4.~,~L~: ~ ; . FOR ACTUAL FIGURES SEE TABLE .

,.. ...- EASTERN MASS.*

\ V- t' Demand in eastern
~.,> ~e-- N <Mass. includes
A oro~~~~~~~~ ~coastal as well as
2, SUPPLY DEMAND inland towns west
to approx. Rt.I-495.

c~ ~ ~~~~:

SOUTH 7 .">.- Nj < S

i fallnst t
�,v~ --.tt< "6,

( '1 ) ~
"s . ~SUPPLY DEMAND

NANTUKE R SOUND
SOUTHEASTERN

SUPPLY DEMAND ISANDSIC

SUPPLY DEMAND

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
COASTAL ZONE MANAGEMENT PROGRAM
,,,~ ~~~2

The recreation dilemma is critical. Solutions must be provided within
the next decade or most remaining opportunities will be lost.

CZM recreation policies will complement other CZM policies in this plan.
Under improved management, recreation policies can help conserve marine
ecosystems, prevent property losses in flood damage areas and provide
additional coastal recreational opportunities.

Coastal Zone Management's primary objective is to iticrease and enhance
public use of the Massachusetts shoreline while improving existing facilities
and minimizing future conflicts, over-utilization and environmental impacts.
The recreation related policies are thus designed to improve transportation
and access; to acquire new sites in recreation deficient areas; to expand
suitable existing sites through small acquisition or encourage multiple uses;
and to improve maintenance.

ENERGY FACILITIES

The Massachusetts coastal zone plays a major role in fulfilling the
energy requirements of the state - 80% of the Commonwealth's energy facilities
are currently located there. The coast accommodates sites for electric
generating plants, gas facilities, marine terminals, and tank farms and could,
in the future, be called upon to host a refinery, deepwater ports or offshore
oil or gas related facilities and services,

Energy facilities are located in the coastal zone for basically three
reasons: utilization of abundant water for cooling purposes; proximity to fuel
supply; and accessibility to market areas. The chart on the following page
shows the locations of major facilities and major fuel delivery and
distribution networks. Some of these facilities are by their nature coastally
dependent, that is, their successful functioning in some way requires that
they be sited on the coast. For others, inland locations may be possible, but
may entail increased costs to the industry and consumers and could have
associated adverse environmental and social impacts.

Massachusetts is and will most likely remain dependent upon product oil
brought in from outside Massachusetts. Roughly 'half of this oil comes from
foreign nations, most of which, as with the majority of domestic oil, is
brought into the state via coastal marine terminals. For the foreseeable
future, these products will continue to arrive in conventional coastal tankers
and be stored in oil tank farms. While Massachusetts most likely has
sufficient marine terminal capacity to handle any projected increases in
tanker traffic, additional oil storage facilities will in all likelihood be
needed. CZM finds that in many instances, ports which now host tank farms
will be hard pressed to accommodate additional storage. Tank farms might,
however, in certain cases, be economically sited in areas outside the
coastal zone.

In addition to oil, natural gas has become a widely used fuel, due to
its efficiency and clean burning characteristics. Because of a lack of
domestic pipeline gas, the importation of liquefied natural gas (LNG) and
feedstock for synthetic natural gas (SNG) through marine terminals has
is ~become important in supplying the energy needs of the state. Because of the
economics and risks of transporting cryogenic gas, many gas storage and

ENERGY FACILITIES

s~x GS DPETROLEUM

(millions of barrels)

E STORAGE CAPACITY

----- 1200
SNG =200
,._ant~ ,,,---------- 75
L Plan-LNG
Terminal (thousands of barrels)

ELECTRIC GENERATION
six ,,~;~,~,~ ,' dWczF FOSSIL FUELS

N NUCLEAR
_ ho ~~~~/ d OTHER Diesel
Int. Comb.
Gas Turbine

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
COASTAL ZONE MANAGEMENT PROGRAM
30

processing facilities must be located close to terminals and as such, are
more coastally dependent than many other energy facilities.
Currently, two coastal power plants have the capacity to use coal to
generate electricity. National energy policy is placing increased emphasis
on substituting coal for oil use. In addition, the feasibility of extracting
coal from the Narragansett Basin is being examined. These developments may
lead to the increased use of coal in Mas~sachusetts and the siting of coal
storage and transportation facilities in the coastal zone.

The coast, in addition to providing sites for receiving and processing
facilities, also provides sites for 21 electric power plants. Currently,
beyond the construction of an additional nuclear power plant in Plymouth,
Massachusetts, no new major facilities are being proposed for construction
in coastal areas for the foreseeable future. This situation may change,
however, due to a variety of factors: including primarily, increased energy
demands and slippage in construction of plants planned for other New England
areas.

Currently, Massachusetts lacks any refinery capability, and proponents
argue that a refinery might benefit the state's economy and stabilize energy
supplies, A refinery may well require the construction of a deepwater port,
so deep draft vessels could be used to import large quantities of crude oil
for refining. Refineries have substantial land and water requirements which
may preclude other uses if sited in coastal areas. It is possible to site
refineries away from the coast and such locations should be carefully
evaluated.

While deepwater ports would tend to reduce congestion and the frequency
of tanker spills, the risks of very large spills would be higher. Though
commonly associated with the importation of crude oil, a deepwater port
could be used to deliver refined petroleum products, thus potentially reducing
the need for near-shore, shallow draft tanker terminals.

The siting of energy and energy related facilities in coastal areas may
be affected by oil and gas exploration and production on the roughly one
million acres of land in the North Atlantic Outer Continental Shelf (OCS)
being considered by the Department of Interior for leasing in 1978. If oil
or gas is found, the Commonwealth may experience development pressure from
OCS related activity. OCS exploitation may result in development of pipe-
line landfalls, gas processing facilities, tank farms and distribution
facilities. Other OCS related activities such as supply bases, pipe coating
yards, and platform fabrication yards might also be proposed for the coastal
zone.

The construction and operation of each of the above mentioned facilities
must be undertaken within the context of the state's energy policy. This
policy, established in the law creating the Energy Facilities Siting Council,
calls for the provision of a necessary energy supply with a minimum impact on
the environment at the lowest possible cost. These three concerns must be
weighed in considering whether or not to site additional facilities, be they
in the coastal zone or elsewhere. Every facility has associated with it
certain positive impacts: the meeting of energy needs, increased employment
and a secure source of energy to provide for economic development. On the

other hand, primary environmental impacts include those associated with air
and water quality, alteration of coastal ecosystems, and land use conflicts.

In conjunction with energy conservation and efficiency, the promotion
of environmentally sound alternative forms of energy is necessary. The
implementation of alternatives such as solar, wind and solid waste energy
recovery systems would reduce our dependence upon the more traditional fossil
fuel and nuclear forms of energy. Such a reduction would result in the need
to construct fewer energy facilities as we know them today, It is necessary,
of course, to evalute new forms of energy closely as well as to determine
that we are not simply substituting one energy source for another with the
same potential for environmental and social impacts.

In developing its energy policies, the Massachusetts CZM program has
recognized there will be a need for increased amounts of energy and that new
facilities to meet these needs may be required. CZM has also recognized that
the siting of energy facilities is in the national interest and as such,
requires special consideration. The maintenance of utility service is
without question in the public interest. Therefore, all policies are
designed to allow adequate service to be maintained. In sum, the CZM program
recognizes there is a need for a rational allocation of coastal land for the
siting and accommodation of energy needs, which minimizes impacts on the
environment and is economically feasible.

GENERAL DEVELOPMENT AND PUBLIC INVESTMENT

Most of the policy recommendations of the CZM program deal with the
management of human activities immediately on or adjacent to specific types
of significant resource areas along the shoreline valued for their ecological
importance, or for their value to recreation and marine-related commerce.
CZM recognizes that other parts of the coastal zone will continue to be the
loci of substantial economic growth and development within Massachusetts.
Resource capabilities in some of these other parts of the coastal zone can
support, for example, the low density residential development that offers an
attractive alternative to urban living. Other areas can support and benefit
from more intensive development. In these areas, the state has only limited
interests, since many issues related to the form and rate of development in
coastal communities are largely matters of local concern. Consistent with
citizen concerns expressed through the CZM advisory committees and the local
growth policy committees, CZM will not interfere with matters that are not
of statewide significance.

Inland of inter-tidal areas along the shoreline, the state Environmental
Code and existing laws relating to inland wetlands provide protection to
critical areas of hydrological or ecological significance. Existing permit
requirements for point source discharges regulate air pollution and pollution
of surface waters throughout the coastal zone. CZM considers the impacts
regulated by these laws to be of statewide significance. However, administra-
tion of these laws and permit processes will continue as in the past with only
limited CZM involvement.

Major public service investments, namely transportation projects and
sewage treatment and collection facilities, because they can have a significant S
impact on development patterns and impacts and because they involve the use
of federal and state funds, are of statewide and national significance. The

e ~state investment policies will deal only with significant changes to existing
transportation systems, new transportation systems and point-source
facilities to handle water quality. lion-point source discharge of
pollutants into waters will be coordinated through the Section 208 Planning
programs within the coastal zone. Non-point sources of air pollution must
be consistent with state air implementation plans. CZM has determined that
the public interest can best be served by using these investments to provide
incentives for new development to locate in existing development centers.
This strategy maximizes the efficiency of prior investments and will promote
the revitalization of existing urban and community centers, consistent with
the state's growth policy. CZM expects to take a very active role in using
public investments to support sustained growth in those areas where it would
be consistent with stated CZM objectives.

Where requested, CZM will also provide technical assistance to localities
to develop zoning and other land use controls which encourage the consolidation
of future development in their areas.

CHAPTER 4

COASTAL POLICIES

The policies presented in this chapter constitute the policies of the
Massachusetts Coastal Zone Management Plan, and thus supercede the Policies
presented in Volume I of the March 1977 Program Draft. They will become
effective upon promulgation of the regulations pursuant to G.L. c. 21A.
They have been developed in response to the resource and use issues summarized
in the preceding chapter. In addition, they reflect public input received
during the three years of program development and comments received during
the DEIS review period.

It is the intent and purpose of the Massachusetts Coastal Zone
Management Plan, as approved, to rely solely on existing statutory
authority so that none of the policies, memoranda of understanding, and
proposed regulations is interpreted to allow an expansion of governmental
authority beyond existing law. Where the plan and regulations are in-
consistent with, or interpreted to allow an expansion of such authority
beyond existing law, that part of the plan or regulation shall be null
and void.

"Policy" means a general guideline, a broad purpose. As is the
case with all policies and goals, it is not expected that all policies can
be met all the time, because they may conflict.

The intent of the coastal zone management plan is to express certain
regulatory and non-regulatory policies. Regulatory policies are to form
a basis for administrative decisions to approve or disapprove activities
S ~~only to the extent that such policies are contained in the text of the
statutes of the Commonwealth or regulations duly adopted and Promulgated
pursuant thereto. They are to be applicable to each agency only to the
extent each agency has jurisdiction and authority to enforce such statutes.
Other policies are non-regulatory. They are included in the coastal
zone management plan to help set out priorities in administrative decisions
and to inform the public and decision-makers of a coherent state framework,
but such policies are not binding on private parties.

The chart below is presented to aid the reader in understanding how
the policies presented in the March 1977 Draft Program (Volume I) and
the DEIS have been reorganized, combined, and condensed consistent with the
above. Policies to which federal consistency applies are asterisked in
the chart, and as they appear in the subsequent text.

REGULATORY POLICIES

Present Federal Draft Policies
Policy Consistency (March 1977 Submission/DEIS)

I 1, 8 (a-c) Protect wetlands and buffers.

2 **2 Areas for Preservation or Restoration.

3 *3 Support water quality goals.

4 *4, 12 (b) Construction in water bodies, erosion
control structures.

5 *5 Dredging and dredged material disposal.

6 *6 Offshore mining.

7 *17, 18 Licensing port and harbor development.

8 *23, 32 Energy facility siting.

9 *33(a)(c) OCS and alternative source management.

10 *34 Conformance to existing air and water permit
requirements.

11 **16 Scenic rivers, outdoor advertising.

12 *14 Impacts on historic districts and sites.

13 *27 Impacts on public recreation beaches.

NON-REGULATORY POLICIES

Present Federal Draft Policies
Policy Consistency (March 1977 Submission/DEIS)

14 7 Promotion of fisheries development.

15 *9 Funding public works in hazardous areas.

16 *10, 8(d) Acquire hazard areas, Technical
Assistance for hazard zoning.

17 *11, 12(a) Funding erosion control measures.

18 13, 14 Technical assistance for local visual
quality management.

19 *18 Funding port and harbor dredging.

20 15, 19, 20 Encourage visual access and port,
harbor, and waterfront development.

21 21, 22 Improve transportation to recreation
sites, link recreation facilities.

22 23 Facilitate multiple use and improve management
of existing recreation facilities.

23 24 Technical assistance to recreation developers.

24 *25, 26 Expand existing recreation facilities and
acquire new sites.

25 33(b) Encourage energy conservation and develop-
ment of alternatives.

26 *35 Funding of transportation and wastewater
projects in developed areas.

27 36, 37, 38 Technical assistance to promote0
revitalization of development centers.

* Federal Consistency applies
**Federal Consistency will apply after such areas have been officially
designated.
35

* ~REGULATORY POLICIES

Policy 1*

Protect ecologically significant resource areas
(salt marshes, shellfish beds, dunes, beaches,
barrier beaches, and salt ponds) for their con-
tributions to marine productivity and value as
natural habitats and storm buffers.

Salt marshes, shellfish beds, dunes, beaches, barrier beaches and salt
ponds provide habitat for marine associated organisms upon which higher
level species depend for food, and provide nesting and feeding areas for
migratory waterfowl and shorebirds. Salt marshes produce organic matter
which is an important source of nutrition for marine life in coastal waters.
In addition, dunes, beaches, and barrier beaches, and in some cases salt
marshes, serve important functions as natural buffers against flooding,
erosion, and storm wave damage, provided they are left relatively unaltered
and natural dissipation of wave energy can occur.

These ecologically significant resource areas comprise approximately
70,000 acres, 12 percent of the coastal zone. About 30,000 acres are pro-
tected under the Coastal Wetlands Restriction Act which authorizes the
placement of restrictive orders on property deeds prescribing permitted and
prohibited uses in wetland areas. All 70,000 acres are Protected by the
Wetlands Protection Act which vests authority to condition or deny construc-
tion in such areas to local conservation commissions, under state criteria
and guidance.
A. Permitted and Pro'hibited Uses in Areas Subject to the Wetlands
Protection Act

On lands subject to the Wetlands Protection Act, activities will be
forbidden or conditioned if they would adversely affect certain vital
environmental interests. This means that activities that would remove,
fill, dredg-.e, or alter wetland areas will be regulated on a case-by-case
basis to protect the interests specified in the Wetlands Protection Act:

--protection of land containing shellfish;
--protection of fisheries;
--prevention of pollution,
--storm damage prevention;
--flood control;
--groundwater supply;
--public or private water supply.

* ~~~The conservation of these resource areas can also be undermined by
activities taking place in adjacent or contiguous uplands. These impacts
include the alteration of fresh water inflow which may affect salinity

*Federal consistency applies Poic6

regimes and shellfish and fishery habitats, the leaching of pollutants
from septic tanks or introduction of contaminants from storm water run-off
on paved surfaces impacting the harvestability of shellfish, or increased
sedimentation which may impair salt marsh growth, shellfish health or fish
spawning grounds. Thus, conservation commissions, acting in accordance
with the Wetlands Protection Act, shall review proposed developments on
contiguous lands and appropriately condition or deny such developments so
as to minimize damage to land containing shellfish, to protect fisheries,
to protect public, private and groundwater supply, to preve-ntpollution
and to ensure storm damage prevention and flood control. Regulations for
the Act specify that the geographic scope of such review may extend up
to 100 feet beyond either the 100-year floodplain or the landward edge of
the wetlands defined under the Wetlands Protection Act.

B. Permitted and Prohibited Uses in Areas Subject to the Coastal Wet-
lands Restriction Act

With the availability of federal funding for implementation of the
CZM Program, the Coastal Wetlands Restriction Program will be applied to
additional wetland acreage comprised of salt marshes, intertidal shellfish
beds, dunes, beaches, barrier beaches and salt ponds that are currently
protected solely by the Wetlands Protection Act. In developing site
specific restrictive orders for these wetlands, the following set of per-
mitted and prohibited uses shall be used as a model.

Model Order

Permitted Uses:

a. The construction and maintenance of catwalks, wharves, piers,
docks, boathouses, boat shelters, shellfish shanties, fish houses,
fences, wildlife management shelters, foot bridges, observation
decks and shelters; provided that these structures are constructed
on pilings to permit the reasonably unobstructed flow of the tide
and preserve the natural contour of the area.

b. The cultivation and harvesting of shellfish and worms for bait,
and the excavation and construction of areas for the cultivation
and harvesting of shellfish and other marine foods. Salt marsh
haying, dune or marsh grass planting, and the harvesting of
marine algae and Irish moss.

c. Outdoor recreation activities including but not limited to hiking,
boating, trapping, hunting, fishing, horseback riding, skeet and
trap shooting, and shooting preserves, provided that any struc-
tures related thereto do not destroy the beneficial character of
the restricted area.

d. The installation of floats, provided they are located below mean
low water, and receive the approval of the local Shellfish
Department.

e. The construction and maintenance of a driveway or roadway of
minimum legal and practical width where reasonable alternative
means of access from a public way to unrestricted land of the
same owner is unavailable. Such driveway or roadway shall be

Policy 1
37

constructed in a manner which permits the reasonably unobstructed
flow of the tide.

f. The enlargement to minimum legal and practical width and the main-
tenance of raised roadways which exist on the effective date of
the order.

g. The installation, operation, and maintenance of underground and
overhead utilities limited to electrical, communication, sewer,
potable water and gas line4 provided the surface vegetation is
restored substantially to its original condition.

h. Excavation for wildlife management impoundments provided that no
fill or other material shall be placed upon the area except as
may be necessary to construct the retention structure and provide
access thereto, and to provide bank stabilization.

i. Maintenance dredging of existing channels and marine facilities
provided that such maintenance dredging shall not increase the
scope of the initial dredge project. Expansion dredging of
existing channels or marine facilities with approval of the local
Shellfish Department, the local Conservation Commission, the Divi-
sion of Marine Fisheries, the Division of Waterways, and the U.S.
Army Corps of Engineers. Said expansion shall be accomplished,
wherever practicable and reasonable. without dredging in salt
marsh areas or land containing shellfish as identified by the
Division of Marine Fisheries.

j. The construction and maintenance of boat launching ramps and
0 ~ ~~~beaches, including beach nourishment, except on salt marsh areas
and land containing shellfish as identified by the Division of
Marine Fisheries; bank and dune stabilization and shoreline pro-
tection works as long as such structures will have no adverse
effects on adjacent properties or downcoast areas.

k. Dredging and/or construction for a boat channel of a size limited
to single family use with the approval of the local Shellfish
Department, local Conservation Commission, the Division of Marine
Fisheries, the Division of Waterways, and the U.S. Army Corps of
Engineers. Said dredging and/or construction shall be accomplished,
wherever practicable and reasonable, without dredging in salt
marsh areas or land containing shellfish as identified by the
Division of Marine Fisheries.

1. The use or improvement of land or water for agricultural purposes
provided, however, that any subsequent non-agricultural uses of
land which was altered for agricultural purposes may be regulated,
restricted or prohibited in accordance with any conditions stated
herein.

m. The dredging, expansion, and maintenance of ship channels serving
designated port areas (see Policy 7).

n. The installation and maintenance of underground conduits or other
0 ~ ~~~facilities associated with intake and outfall structures of a
permitted and licensed electric generating facility in beaches,
dune, and tidal flats not containing shellfish beds (as identified
by the Division of Marine Fisheries), providing the

38 Policy I

surface vegetation and the natural contour of the landform are
restored substantially to their original condition.

Prohibited Uses:

All activities, except thoseneeded to accomplish the above permitted
uses, shall be prohibited, including:

a. No person shall fill, place or dump on said coastal wetlands any
soil, loam, peat, sand, gravel, rock or other mineral substance,
refuse, trash, rubbish, debris or dredged material.

b. No person shall drain or excavate or dredge said coastal wetlands
or remove therefrom loam, peat, sand, soil, or other mineral
substance.

c. No person shall discharge hazardous substances, effluent from a
sewage treatment facility, and thermal effluent from a power
plant or other industrial source.

d. No person shall perform any act or use said coastal wetland in a
manner which would destroy the natural vegetation of the coastal
wetland, substantially alter the existing patterns of tidal flow,
or otherwise alter or permit the alteration of the natural and
beneficial character of the coastal wetlands.

(End of Model Order)

IMPLE1,ENTATION

As noted above, Policy (1) will be implemented primarily through
the two wetlands programs, Wetlands Protection and Coastal Restriction.
First, CZM funding will be provided to the Department of Environmental
Management to apply the Coastal Wetlands Restriction Program to Sig-
nificant salt marshes, dunes, beaches, barrier beaches, shellfish beds,
and salt ponds that are as yet unrestricted. First priority will be
given to restricting wetland areas in Areas for Preservation or Restor-
ation (see Policy 2), second priority will be given to significant wet-
lands in urban areas. The Program will not be applied to designated
port areas (see Policy 7).
The geographical extent of areas to be restricted shall be delineated
as described in the Definitions. Unaltered barrier beaches shall be
restricted in total. Restriction of altered barrier beaches will include
only those portions which still exhibit characteristics of naturally
functioning barrier beaches (see the Definitions) and shall include
at a minimum beaches and dunes. Restriction of shellfish beds shall in-
clude only their intertidal portion, since submerged land seaward of mean
low water is owned by the Commonwealth. Mosquito control and other pro-
jects authorized by the State Reclamation Board are, by law, exempted
from the provisions of the Coastal Wetlands Restriction Program, as are
wetlands under the control of MDC and actions by the DPW. Projects
(other than mosquito control)by these agencies are, however, subject
to the provisions of the Wetlands Protection Act.

Secondly, wetlands, that are as yet unrestricted shall be managed
through the Wetlands Protection Program, administered by DEQE and local

39 Policy I

conservation commissions. For this program, CZM funding is to be used to
revise the regulations, to expand the staff of the Department's Wetlands
Program which oversees the administration of the program, and to provide
funding and technical assistance to conservation commissions who administer
the program at the local level.

In addition, tidelands licenses issued by DEQE's Waterways Pro-
gram shall be issued consistently with this policy. The Division of
Marine Fisheries will also be cooperating with DEQE in the review of pro-
posed activities insofar as impacts on shellfish areas are involved (see
i-k and n above). Provisions of the Ocean Sanctuaries Acts, adninistered
by DEM, may also apply, depending on which Sanctuary is involved and the
type of activity proposed.

Applications for federal licenses or permits will be deemed consis-
tent with the CZM Program if, in a wetland restricted by the Coastal Wet-
lands Restriction Program, they abide by the schedule of permitted and
prohibited uses, or if, in an unrestricted wetland, they abide by the
order of conditions imposed under the Wetlands Protection Act. In addi-
tion, implementation by federal agencies of President Carter's May 24,
1977 Executive Order on Floodplain Management and Protection of Wetlands
will reinforce the implementation of Policy (1).

Primary State Authorities +

Coastal Wetlands Restrictions Program (MGLA C. 130, S. 105)
Wetlands Protection Program (MGLA C. 131, S. 40)
Waterways Program (MGLA C. 91, SS. 1-59) (C, 21A, S. 14)
Ocean Sanctuaries Acts (MGLA C. 132A, SS. 13-17)
Division of Marine Fisheries (MGLA Chapter 130)
Energy Facilitiee Siting Council (MGLA Chapter 164)

Primary Federal Consistency +

Dredge and Fill Permits, Section 404 (PL 92-500, U.S. Army
Corps of Engineers)
Obstruction and Alteration Permits Section 10 (Rivers and Harbors
Act, 1899, U.S. Army Corps of Engineers)
NPDES Permits, Section 402 (PL 92-500, EPA)

+Note: The lists of state authorities following each policy throughout this
Chapter include only the primary authorities implementing the policy and
are not intended to include every program which might apply in every
instance. Similarly, the lists of federal authorities include only the
primary authorities for which federal consistency is required. 'ee the
federal consistency chapter, Chapter 9, for a fuller listing of t'ie federal
activities subject to federal consistency.

Policy 1
40

Policy 2**

Protect complexes of marine resource areas of
unique productivity (Areas for Preservation or
Restoration (APRs)/Areas of Critical Environ-
mental Concern (ACECs); ensure that activities
in or impacting such complexes are designed and
carried out to minimize adverse effects on
marine productivity, habitat values, water
quality, and storm buffering of the entire
complex.

Along the coast of Massachusetts are found complexes or signiricant
resource areas and other coastal environments which are unique for their
contributions to marine productivity as evidenced by:

(a) high natural productivity or potentially high productivi'tv
shown by the presence of:

1) known spawning grounds for fish,
2) shellfish beds,
3) commercially valuable plants,
4) anadromous fish runs, and
5) feeding and breeding areas for waterfowl or
birds dependent on coastal resources.

(b) high water quality or potential to meet highest water q-uality
standards.

Marine productivity, together with other factors, such as scenic quality,
historic significance, storm buffering capacity, recreation value and the
presence of or habitat for rare, threatened or endangered species make such
complexes likely candidates for designation as Areas for Preservation or
Restoration (APR)/Areas of Critical Environmental Concern (ACEC).

The provisions of Policy (1) will, of course, apply to wetlands within
the APRs/ACECs. In addition, activities which will damage the resource
should not be introduced into such areas. Activities which will be
categorically prohibited below mean high water within the water bodies
comprising the APRs/ACECs, include the following:

(1) new industrial discharges and the discharge of hazardous sub-
stances (once. the water segments are classified anti-degradation),

(2) new dredging except for maintenance of existing channels or
for enhancement of shellfish and other marine productivity,

(3) disposal of dredged material, except in instances when the material
may be used for beach nourishment, dune stabilization or
marsh creation,

(4) direct discharges from new sewage treatment facilities, (once
the water segments are classified anti-degradation).

**Federal Consistency will apply after such areas have been officially
designated. 41 Policy 2

The siting of new municipal sewage treatment plants shall also be pro-
hibited within designated APRs.

If activites are proposed for an area which is related by natural pro-
cesses (for example, littoral currents. tides) to the APR/ACEC such that the
activity would impact.the APR/ACEC, applicants for federal or state funds or
Permits shall be required to demonstrate that the proposed activity will not
adversely affect the characteristics cited in the official Secretary of
Environmental Affairs designation of the area.

The Energy Facilities Siting Council, in conducting its review of
energy facilities proposed for APRs,will give prime consideration to the
need to prevent adverse environmental impacts in these areas. (See Policy
(3) and the Attorney General's Memorandum Opinion text and footnote 29.>

APR/ACEC designation will also trigger other special protection mea-
sures for the area, including:

Priority application of theCoastal Wetlands Restriction
Program to the salt marshes, beaches, shellfish beds, dunes,
and barrier beaches within the complex, including some
restriction of contiguous upland areas where necessary to
ensure full Protection of the APR.

Application of the Inland Wetlands Restriction Program to
protect anadromous fish runs if they exist in the complex.

The designation will also give the area high priority for receipt of
open space acquisition funds, Policy (24), and implementation of the Scenic
Rivers Act, Policy (11), and for acquisition and management as a wildlife
area by the Division of Fisheries and Wildlife. The designation of an area
as an APR/ACEC, however, does not prohibit or eliminate existing uses.

IMPLEMENTATION

The authorities to provide protection to wetland resources within APRs
are essentially those used to implement Policy (1) with the exception that
some contiguous lands within the APR may also be restricted if necessary to
provide sufficient protection to the wetlands. Tidelands licensing will be
used to prohibit new dredging and disposal as provided in (2) and (3)
above. Each APR designation will be formally accomplished through desig-
nation of the area as an Area of Critical Environmental Concern (ACEC),
pursuant to the Secretary of EOEA powers under MGLA Chapter 21A, (this
process is outlined in Section 6.1 and in the 21A regulations). This latter
designation essentially means that greater scrutiny will be given to state
funded and permitted projects proposed for the area, as the categorical
exemptions for smaller projects from the reporting and review requirements
of the Massachusetts Environmental Policy Act will be removed.

Such designation will also signify to the Division of Water Pollution
Control that CZM recommends classification in Massachusetts Water Quality
Standard Regulations of all water basin segments within the complex as SA
and anti-degradation waters, if they currently are not so classified, in
order to maintain high water quality and implement (1) and (4) on the
previous page.

42 Policy 2

A. P.R. 'S

RECOMM4ENDED AREAS FOR
PRESERVATION AND
RES TORAT ION

N- /f~~~~~~~~~~~ 1.Plum Island Sound
2. Salem Harbor Islands
3. North & South Rivers
2 ~~~4 .Duxbury Bay
5. Ellisville Harbor
6. Sandy Neck
~~~~~~ MA S SA C V S ET 7 . Popponesset Bay
BAY ~~~8. Waquoit Bay
9. Elizabeth Islands
10. Westport

~~ Y ~ ,~~, 4

CAE CD A

K~~~~~~~~~~~~

NANTICKET~~~~ NAJoup E

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

COASTAL ZONE MANAGEMENT PROGRAM

As shown on the preceding map, ten areas are currently proposed for
APR/ACEC designation. Determinations with respect to designations shall
be made during the first year of program implementation.

Primary State Authorities

Inland and Coastal Wetlands Restriction Programs (MGLA C. 131,
S. 40A and C. 130, S. 105)
Wetlands Protection Program (MGLA C. 131. S. 40)
Waterways Program (MGLA C. 91; C. 21A, S. 14)
Ocean Sanctuaries Act (MGLA C. 132A, SS. 13-17)
Division of Marine Fisheries (MGLA C. 130)
Division of Water Pollution Control (MGLA C. 11, SS. 27, 43)
Energy Facilities Sitng Council (MGLA C. 164)
Division of Fisheries and Wildlife (MGLA C. 131, S. 6 and
Chpater 839 of the Acts of 1971 - acquisition powers)
Massachusetts Environmental Policy Act (MGLA C. 30, SS. 61-62H)
Designation of Areas of Critical Environmental Concern
(MGLA C. 21A, S. 2(7))
Outdoor Advertising Board (MGLA C. 93, S. 29 and C. 93D)
Self-Help Program (MGLA C. 132A, S. 11)
Department of Environmental Management (MGLA C. 132A)
Public Access Board (MGLA C. 21, SS. 17-17A)

Primary Federal Consistency

Section 404 Permits (P.L. 92-500)
Section 10 Permits (Rivers and Harbors Act, 1899)
NPDES Permits, Section 402 (P.L. 92-500)

Policy 3*

Support attainment of the national water quality
goals for all waters of the coastal zone through
coordination with existing water quality plan-
ning and management agencies. Ensure that all
activities endorsed by CZM in its policies are
consistent with federal and state effluent
limitations and water quality standards.

Federal Consistency applies Policy 2 & 3

The Water Pollution Control Act Amendments of 1972 (P.L. 92 500)
established a framework whereby a number of planning, management and con-
struction programs have been set into place to work toward achievement of
the national goals of "fishable/swimmable" waters by 1983 and the elimina-
tion of pollutant discharges by 1985. The discharge requirements estab-
lished by P.L. 92-500 are the minimum water pollution control requirements
applicable to the CZM Program, consistent with the requirements of Section
307(f) of the Coastal Zone Management Act (P.L. 92-583). (See also Policy
(10)). However, in order to provide adequate protection for marine
resources, the following additional measures are to be taken in implementing
the state's water pollution control programs:

(1) Section 208 Areawide Waste Management Plans: 208 plans for
regions within the coastal zone should ensure that non point
sources will be adequately managed to prevent adverse impacts
on coastal receiving waters and that mutual consistency is
achieved between 208 policies and applicable CZM policies.

(2) Title V, State Environmental Code: DEQE and the 208 agencies
should monitor the adequacy of the setback provisions of the
recently revised code. If, after a sufficient time period has
elapsed for operation of the code to be adequately tested and
researched, it is determined that the code is inadequate to
prevent contamination of wetlands or surface waters, CZM
will collaborate with DEQE and the 208 agencies to improve
the setback requirements of the Code.

(3) Approval of Ocean Outfalls: DWPC shall require applicants pro-
posing construction and operation of new ocean outfalls for
municipal waste treatment facilities or flow increase from
existing outfalls to furnish the'following data to provide for
adequate assessment of effects on marine productivity and public
health.

(a) definition of the tidal excursion for the proposed outfall
location,

(b) definition of the dilution, of the sewage effluent which can
be expected given the volume of water passing the outfall
under critical conditions,

(c) calculation of the maximum pollution parameter levels
expected at the proposed outfall location, particularly
total and fecal coliform bacteria, total nitrogen and total
phosphorous, total organics, heavy metals, and toxic
substances.

If DWPC, through coordination with the Community Sanitation Pro-
gram and the Division of Marine Fisheries, finds that location
of the outfall will produce adverse effects on marine pro-
ductivity or public health, the applicant should be required to
provide an alternative site or a higher level of treatment.
Further, if research conducted by EPA should demonstrate that
disinfection methods other than the current chlorine disinfec-
tion practices can be used effectively with less impact on the
marine environment, CZM will work with DW4PC to ensure that such
methods are employed in municipal waste treatment. Such

Policy
45

alternatives may include allowing seasonal variation in the
minimum required chlorine discharge levels. Discharges in ocean
sanctuaries must comply with the provisions of MGLA C. 132A,
S. 16, prohibiting new discharges in the North Shore sanctuary
after January 1, 1978 and allowing new discharges in the Cape and
Islands, Cape Cod Bay and Cape Cod Ocean sanctuaries subject to
conformances to the provisions of that section.

(4) 201 Funding Priorities: DWPC's priority selection system for
201 grant applications shall continue to give weight to nroposed
facilities which would provide for abatement of pollution prob-
lems in areas used for shellfishing or swimming (see also Policy
(26)).

(5) Discharges from Recreational Vessels: Federal regulations require
marine sanitation devices on all recreational vessels equipped
with sanitary facilities. With the approval of the Administrator
of EPA, certain water bodies can be designated as no discharge
areas if the protection and enhancement of the waters require
greater protection than would be afforded by use of MSDs. If
it is definitively determined through a basin planning study, or
other water quality study that discharges from recreational
vessels in a particular water segment are causing a violation of
the segment's water quality standards, CZM will recommend that
the segment be designated a no-discharge water. If boating
activity in this area is such that it is generally confined to
the segment, sufficient pumpout facilities should be nrovided
at either public boating facilities in the segment, or if this
is not feasible, at new private marinas if any are proposed for
location in the segment. (MGLA C. 91, S. 59B will be used to
require pumpout facilities at private marinas if necessary.)
CZM will actively work with EPA and DWPC and marina owners
to coordinate implementation of this recommendation as necessary.

IMPLEMENTATION

This policy is to be carried out primarily by: funding additional staff
within the Division of Water Pollution Control to review proposed ocean out-
falls; CZM review for consistency of 208 plans and 201 facility plans
through established MEPA, NEPA and A-95 review processes; collaboration with
DEQE and 208 agencies in monitoring operation of the State Environmental
Code;CZM comment on NPDES permits, water quality certificates or renewals;
coordination with DWPC and EPA as noted in (5) above; and through enforce-
ment by DEM of adherence to the provisions of the Ocean Sanctuaries Act.

Primary State Authorities

Ocean Sanctuaries Acts (MGLA C. 132A, SS. 13-17)
Division of Water Pollution Control (MGLA C. 21, SS. 27, 43)
Division of Water Pollution Control, Marina Licenses
(MGLA C. 91, S. 59B)
State Environmental Code, Title V (MGLA Chapter 111, S. 17)

Policy 5
46

Pfimary Federal Consistency

Areawide Wastewater Management Plans (Section 208 P.L. 92-500)
NPDES Permits for Ocean Outfalls (Section 402, PL 92-500)
Wastewater Treatment Facilities Construction Grants
(Section 201, PL 92-500)

Policy 4*

Condition construction in water bodies and
contiguous land areas to minimize interfer-
ence with water circulation and sediment trans-
port and to preserve water quality and marine
productivity. Approve permits for flood or
erosion control projects only when it has been
determined that there will be no significant
adverse effects on the project site or adja-
cent or downcoast areas.

Estuaries and coastal embayments are particularly productive areas and
prime habitat for a variety of marine species. Fresh water river discharge
into estuaries helpsto create favorable salinity regimes for certain marine
species. Interference with natural river discharge, tidal flushing, and
water circulation patterns can deny marine organisms water borne food,
alter sediment transport, and create areas of stagnant, polluted water.
Erosion control structures such as groins or revetments can adversely
affect adjacent or downcoast areas by trapping sediments that would other-
wise be transported downcoast by littoral processes or by impairing the
functioning of natural buffers.

Thus, design and construction of solid fill piers, bulkheads, groins,
jetties, revetments or other permanent structures in coastal waters shall
be examined on a case by case basis and shall be permitted if:

a. not inconsistent with Policy (1);

b. in estuaries and coastal embayments, flushing rates and
capacity are not significantly reduced;

c. water quality, marine productivity, and anadromous fish
runs are not adversely affected to a significant degree.

d. alteration of wave or tidal generated sediment transport
will not cause significant adverse effects on the project
site or adjacent or downcoast areas, including significant
adverse changes in depositional patterns or natural storm
damage prevention or buffering functions.

*Federal Consistency applies policy 3 & 4
47

The design and construction of highways, roads, bridges, dams, and the
diversion or impoundment of water will also be reviewed for conformance to
the above provisions. Additionally, construction of these facilities in
contiguous upland areas must not:

a. significantly increase upland erosion, induce or accelerate
runoff of contaminants or otherwise adversely affect the quality
of coastal receiving waters;

b. affect the quantity of fresh water entering coastal receiving
waters such that salinity levels would be adversely altered to
a significant degree.

IMPLEMENTATION

This policy is to be implemented principally through the Waterways
Program. CZM funding will provide for increased staffing of this division
and development of new regulations for tidelands licensing. These regula-
tions will be based on the provisions presented above. In addition, activ-
ities such as highway construction on contiguous uplands will be regulated
through the Wetlands Protection Program as noted in Policy (1), insofar as
they are within the geographic jurisdiction of MGLA C. 40, S. 131.

Because it is authorized to ensure that the passage of anadromous fish
is not prevented, the Division of Marine Fisheries shall continue to review
proposals for construction in coastal streams, and will require provision of
fish ladders or other measures as necessary. In addition, procedures of the
federal Fisheries Wildlife Coordination Act shall apply where applicable.

Primary State Authorities

Division of Waterways Tidelands Licensing (MGLA C. 91, S. 14)
Division of Matine Fisheries (MGLA C. 130, S. 19)
Wetlands Protection Program (MULA C. 131, S. 40)

Primary Federal Consistency

Section 10, Section 404 Permits

Policy 5*

Ensure that dredging and disposal of dredged
material minimize adverse effects on water
quality, physical processes, marine produc-
tivity and public health.

Policies (1) and (2) restrict or prohibit dredging and dredged material
disposal in certain ecologically significant resource areas, while Policies

*Federal Consistency applies 48 Policy 4 & 5

r "N~~~~~~~~~~~~~~~~~~~~~~~-

(7) and (19) specify criteria for licensing and funding dredging projects on
the basis of port and harbor development needs. Regardless of location or
need, damage to the environment and public health shall be minimized by0
ensuring that dredging and dredged material disposal projects will not
cause:

a. a significant increase in the volume or velocity of water which
may cause flooding resulting from alterations in the bottom
morphology of an estuary, embayment or other tidal waters;
b. significant adverse effect on the flood storage capacity of a
wetland, river, stream or creek;
c. a significant increase in flood or erosion hazards or signifi-
cant adverse effect on the natural replenishment of beaches
resulting from changes in sediment transport processes!
d. a change in circulation patterns which will result in a signifi-
cant adverse change in flushing rate, ambient salinity, tetapera-
ture, and turbidity levels;
e. any significant adverse effects on marine productivity resulting
from suspension or transport of pollutants or other substances,
blanketing of organisms, bio-accumulation of pollutants by
organisms, or habitat or nutrient source area destruction'
f. any significant removal of shellfish beds except as allowed
through consultation with the Division of Marine Fisheries;
g. any degradation of water quality which would result in a violation
of water quality standards, contamination of recreation waters or
marine food sources, or contamination or depletion of public or
private groundwater supply (including aquifers and recharge areas).

The following general provisions shall also apply to dredging opera-
tions and the selection and use of disposal sites:

(1) Dredging

a. Timing limitations for dredging shall be determined by the Division
of Marine Fisheries on a case by case basis in order to minimize
impacts to anadromous fish runs. Generally, in streams with
herring runs, dredging should not occur between March 15 and
June 15 if such dredging would cause turbidity sufficient to impede
spawning activity. Also, in such streams, dredging activities
occurring from late summer to early fall should confine areas of
turbidity to allow unrestricted flow of down-running juvenile fish.
b. Conflicts with recreational activity or other activities occurring
within the water body to be dredged shall be minimized.
c. Hydraulic dredging, because of its lesser environmental impacts at
the dredge site, should generally be favored over mechanical
dredging except when open water disposal of fine grained material
is planned. It is recognized, however, that site location, avail-
ability of dredging equipment, options for dredged material dis-
posal, and related economic factors must be considered in deter-
mining the appropriateness of dredging method.

(2) Sediment Analyses/Impac~t Evaluation Procedures

a. Testing procedures for evaluating the sediments to be dredged for
potential impacts on disposal site environments should include

Policy b
49

methods, as they become available, which are based on biological
and health parameters, in lieu of or as a supplement to existing
0 ~ ~~~elutriate test procedures. Grain size analyses should also be
used to provide adequate assessment of the potential for natural
transport of dredged material once deposited'at the disposal site.

(3) Disposal Sites and M~ethods

a. On-land disposal of dredged material should be favored over ocean
dumping, if appropriate sites are available adverse environmental
impacts such as degradation of groundwater can be minimized, and
costs are feasible. If contaminated material is involved, it
should be covered by clean fill to prevent oxidation of contamin-
ants and uptake by vegetation and wildlife.
b. Clean dredged material should be used for beach nourishment, if
the material is of appropriate grain size for the nourishment site
and any additional handling costs can be justified.
C. In-harbor sites should be favored over open ocean sites for disposal
of contaminated dredged material, if the leaching of contaminants
can be contained by an impermeable bulkhead or filtering system.
CZM is committed to the protection of the marine environment as a
productive resource, and therefore does not favor the use of
ocean sites for the disposal of contaminated dredged material.
If, however, all other alternatives, including limiting the
extent of dredging, not dredging at all, or on-land and in-harbor
disposal are not feasible, CZM recommends the continued use of
the Boston foul site for disposal of contaminated dredge material.
d. *For any dredge material disposal operations to occur at an open
ocean site, the following required conditions shall be applied to
the disposal permit:

1) use of transport vessels or barges using sudden, high volume
release shall be required;
2) transport vessels or barges shall not be overloaded;
3) transport vessels or barges must be dead in the water when
the dump is made in order to provide point source disposal;
4) short dumping shall be prohibited; and
5) fishermen must be notified of the time and route of dumping
operations and be given LORAN bearings of the dump site so
that interference with fishing activity can be avoided.

e. If new open ocean disposal sites suitable for accommodating
regional needs for disposal of clean dredged material are deemed
necessary, such sites shall:

1) be located in areas of insignificant importance to the fisher-
ies resources of the Commonwealth; and
2) be limited only for use by priority projects meeting the bene-
fit need criteria specified in Ports and Harbors Policy (19).

Additional criteria for selection of such sites shall include:

1) the turbidity plume and/or high density flows formed during
0 ~ ~~~~disposal operations will not significantly impact fisheries
resources; and

Policy 5
50

2) migration of dredged material from the disposal site will
not cover or adversely affect fisheries resources, will
not be transported into adjacent navigation channels or other-
wise reduce the water depth needed for safe navigation.

f. If selection of a new regional open ocean disposal site for con-
taminated dredged material is deemed an appropriate disnosal
alternative, such sites shall:

1) be located in areas of insignificant importance to the
fisheries resources of the Commonwealth, and
2) be limited only to priority projects meeting the benefit
need criteria specified in Policy (19).

Additional criteria for selection of such sites shall include:

1) the turbidity plume and/or the high density flows forned
during disposal operations will not significantly impact
fisheries resources, and
2) erosion (wave based or caused by bottom currents) of signif-
icant amounts of dredged material will not occur even under
extreme conditions..

For such a new regional site, CZM recommends that the CorDs of
Engineers periodically monitor bottom conditions. This should
consist of periodic bathymetric and side scan sonar surveys over
the disposal area to assess any changes in the configuration of
the spoil mound. Monitoring of bottom water current velocity and
underwater photography at the spoil area should be conducted
periodically to determine if any dredged material is being
eroded. In addition, submersible dives should be made to visually
survey both the geological and biological changes. Several bio-
logical stations should also be maintained on and over the site to
monitor bio-uptake of pollutants and recolonization by photo-
plankton, zooplankton, indicator polychaete species (e.g.,
Capitella), mulluscs, and other fauna.

g. Alternative methods of dredged material disposal should also be
explored, such as marsh creation or the use of dredged material
for fill or construction material aggregate.

IMPLEMENTATION

This policy will be implemented primarily through the authorities
vested in the Waterways Program, will be administered consistently with the
provisions of Policies (1), (2), (7) and (19), and shall apply to both fund-
ing and permitting activities of the Waterways Program. CZM funding will
be used to increase the staff of the Waterways Program and to develop new
regulations based on the above criteria and provisions, consistent with the
intent of the policy. These regulations will detail procedures and time
frames whereby reviews by the Divisions of Marine Fisheries, Air and
Hazardous Materials, Fish and Wildlife and Water Pollution Control will be
coordinated insofar as concerns of these agencies are involved. Permit
review will also be coordinated with the Corps of Engineers, EPA., U.S. Fish
and Wildlife Service, and National Marine Fisheries Service as required by
federal law. Data provided by the Corps' Waterways Experiment Station in
Vicksburg, Miss., will also be utilized in investigating alternatives to
oen water disposal.
Policy 5
51

Primary State Authorities

Waterways Program (MGLA C. 91, C. 21A, S. 14)
Maintenance Dredging Exemptions (MGLA C. 131, S. 40 as amended)
Community Sanitation Program (MGLA C. 111, S. 150A), (if on-land
disposal is involved)
Water Quality Certification, DWPC (Section 401, PL92-500, MGLA C. 21,
S. 27)
Primary Federal Consistency

Section 19 and Section 404 Permits
Dredging and navigation projects funded by the U.S.
Army Corps of Engineers

Policy 6*

Accommodate offshore sand and gravel mining
needs in areas and in ways that will not
adversely affect marine resources and
navigation.

The following locational guidelines shall apply to offshore sand
and gravel mining activies:

1. mining shall be prohibited in marine areas that serve as
sources of sediment supply for coastal beaches or in areas
where alteration of bottom contours would adversely modify
wave and current patterns affecting shoreline areas.
Generally, these areas will be landward of the 80'contour.

2. mining shall be prohibited in areas where contaminated dredge
material has been deposited or other hazardous substances have
been dumped.

3. -mining shall be prohibited within a specified distance of sub-
marine cables and pipelines.

4. mining shall be prohibited in navigation channels or anchorages
unless shipping concerns can be safely accommodated.

5. mining shall be prohibited in shellfish, finfish spawning and
nursery areas or in other areas of productive sport or commercial
fisheries.

In addition, CZM recommends that the following operational guidelines
apply:

Policy 5 & 6
*Federal Consistency applies 52
52

1. all dredging vessels should be adequately lit and equipped with
fog horns to prevent accidental collisions.

2. information on dredge's location, duration of mining and naviga-
tion lights should be included in Coast Guard's notices to
mariners.

IMPLEMENTATION

CZM funding will be used to develop new regulations for licenses
issued by the Division of Mineral Resources pursuant to MGLA C. 21, S. 5
to be based on the above provisions and consistent with applicable
provisions of the Ocean Sanctuaries Acts.

Primary State Authorities

Division of Mineral Resources (MGLA C. 21, S. 54)
Waterways Program (MGLA C. 91)
Ocean Sanctuaries Acts (MGLA C. 132A, SS. 13-17)

Primary Federal Consistency

Section 401, 404 (PL 92-500)

Policy 6
53

* R~~Poicy 7

Encourage the location of maritime commerce
and development in segments of urban water-
fronts designated as port areas. Within these
areas, prevent the exclusion of maritime de-
pendent industrial uses that require the use
of lands subject to tidelands licenses.

Port area shall mean tidelands and adjacent coastal waters and lands
exhibiting the following characteristics:

--navigable c&iannels of 20 foot depth or more at mean
low water;

--tidelands and associated lands abutting such channels
which by their topography, size, separation from residential
neighborhoods, and/or local government zoning are suited
to accommodate maritime dependent industrial uses;

--the availability of well developed road and rail links
leading to major trunk and arterial routes; and

--the availability of water and sewer services capable of
supporting maritime dependent industrial uses.

Port areas which typically include only segments of urban waterfronts
are located in the following communities: Gloucester, Salem, Beverly,
Lynn, Boston, Everett, Chelsea, Revere, Quincy., Weymouth, Plymouth, New
Bedford, Fall River, Fairhaven and Somerset. (See ma-ps in A-Dnendi:x F)

The intent of this policy is to ensure that within these areas the
special physical and operational requirements of uses dependent on access
to navigable channels are recognized and not impaired by other develop-
ment. In addition, assigning priority to the use of designated port areas
for maritime dependent industrial development that is important to the
economy of the Commonwealth and the nation will encourage such uses to
locate there. This will minimize the need for dredging of new deepwater
channels elsewhere and maximize the use of prior public investments made
in existing ports.

Maritime dependent industrial uses are marine terminals and related
structures for the transfer from ship to shore or from shore to ship of
goods transported in waterbo-rne commerce; facilities associated with
marine terminals for the storage of goods transported in waterborne
commerce; manufacturing facilities relying on the bulk receipt of ship-
ment of goods by waterborne commerce; wharfs, piers, docks, processing
and storage facilities for the commercial fishing industry; dry docks
and other facilities related to the construction servicing, or repair
of vessels and other marine structures; and other docks, wharves, berths,
dolphins, or mooring facilities for towboats, barges, dredges, ferries,
or other vessels engaged in waterborne commerce, port operations, or

*Federal Consistency applies Policy 7
54

marine construction. An energy facility proposed for siting in a port area
shall be considered maritime dependent if the proposed site has been
approved by the Energy Facilities Siting Council.

All proposals for maritime-dependent industrial developments in these
port areas will be encouraged by CZM and will be facilitated as much as
possible by EOEA agencies, unless the proposed use will seriously conflict
with or preempt, either economically or physically, other existing maritime-
dependent industrial uses in that port or other ports. Should conflicts
arise among maritime-dependent uses requiring tidelands licenses, state and
federal permits shall be granted to the use which is more limited in its
spatial, locational, or economic options and denied to the other uss.

Proposals for development in designated port areas which are not mari-
time-dependent and which require tidelands licenses will be permitted so as
not to deter viable economic uses of vacant port lands. Non-maritime
dependent projects involving the use of federal funds which are proposed
for location seaward of the first public roadway within a designated port
area shall be similarly evaluated. However, should a conflict nrizse
between a non-maritime dependent project and a maritime dependent use,
state and federal permits, or in the case of federally funded projects,
federal consistency, shall be denied to the non-maritime dependent use if:

1. public agencies and/or fishing, maritime shipping or marine
industry spokesmen have expressed firm interest in the site for
maritime dependent uses of particular state or national economic
importance, and this interest has been documented in the 'orm of
a development plan and/or feasibility study; and

2. the proposed activity would irreversibly commit the site, and
the site is best available for the foreseeable maritime dependent
use.

In determining "irreversibility" and "best available", the following
factors shall be considered:

irreversibility:

-- can the proposed structure be converted to maritime dependent use?

-- is the proposed use or structure of a duration or type that is
permanent and not easily removed?

is future maritime-dependent use of the area effectively denied
because water or land access for vessels or truck and rail trans-
portation is precluded?

-- are lease stipulations such as to allow future conversion of the
site to maritime-dependent use?

best available:

for the foreseeable maritime-dependent use, are alternative sites
in port areas available possessing similar characteristics (size,
availability of road and rail access, proximity to major shipping
channels and open water, suitable turnaround basins and channel
depths)?
Policy/
55

--will the use of alternative sites present graver environmental
and safety problems (proximity to residential neighborhoods, over-
loading of road or rail capacities, harbor congestion, expose
greater numbers to environmental harm or safety risks)?

Also, in order to encourage location of maritime shipping and marine
industry in existing port areas, proposals for creation of new channels or
mooring and turn-around basins of 20-foot depth or more will only be
licensed if:

--the project is of regional benefit and/or of national importance,

the development needing the dredging cannot be accommodated in
existing port areas, and

--conformance to Policies (1), (2) and (5) can be achieved to the
extent that each is applicable.

IMPLEMENTATION

Tidelands licensing, administered by the Waterways Program, will be the
principal means for implementing this policy. CZM funding will be used to
both expand the staff of the Waterways Program and to develop new regula-
tions specifying how the policy is to be carried out. In addition, compli-
ance with the policy and its related criteria shall be enforced through CZM
review for federal consistency of applicable federal permits and funding
actions. When determinations must be made to resolve conflicts that arise
when proponents of either a maritime dependent or non-maritime dependent use
apply for a tidelands license in a designated port, the state permitting
agency, in coordination with the federal permitting agency wherever possi-
ble, will hold a public hearing to elicit information on the nature and
facts of the conflict. GZM may also recommend to the EOEA permitting agenc3
and to the Secretary of Environmental Affairs the preparation of an environ-
mental impact report under the Massachusetts Environmental Policy~ Act to
provide for broader public review of the pending decision, to assess avail-
able alternatives, and to provide additional analyses and information per-
tinent to the resolution of the conflict.

The Waterways 'Program has authority over tidelands, harbors, and cer-
tain rivers below the high water mark. Activities covered by such
licenses include filling, wharf construction, bridges, pipelines, etc.
DEQE as trustee over public lands below low waterthus issues licenses and
not permits for the permission to interefere with these public lands.
Between low and high water the land is in private ownership but is subject
to a reservation to the public in their rights to fish, fowl and navigate.

Under the law, all licenses are to expire after five years or upon
non-use. If, to secure financing, the developer needs to obtain an
irrevocable license from the Legislature, GZM will actively support such
legislation. Should the project be a non-water dependent development, it
will still be licensed provided the criteria relating to non-maritime
dependent uses are met.

Primary State Authorities

0 ~~~~Tidelands Licensing (MGLA C. 91) and Public Trust Case Law

Policy 7
56

Primary Federal Consistency

Section 404, and 10 permits
U.S. Army Corps of Engineers projects

Policy 8*

For coastally dependent energy facilities,
consider siting in alternative coastal
locations. For non-coastally dependent
energy facilities, consider siting in areas
outside of the coastal zone. Weigh the
environmental and safety impacts of locating
proposed energy facilities at alternative
sites.

Energy facilities serve important public and national interest needs.
An energy facility, on one level, is like any other major development pro-
ject and may entail for example dredging or filling, alteration of dunes,
waste discharge, increased run-off. In this regard all of the CZI4 policies
are applicable, subject to the nature, location, and source of funding of
proposed facilities. However, energy facilities are also unique because of
the magnitude of impacts which they may generate and land which they may0
consume, because some require coastal sites and others are not coastal
dependent and because adequate provision for energy is in the national
interest.

As explained below in the implementation section, the Energy Facilities
Siting Council will be principally responsible for implementing this policy.
Consistent with its statutory responsibilities~the Council will assess
the following factors in relation to proposed energy facilities:

--air, water, and land use impacts associated with the use of the
proposed and alternative sites,

--impacts on existing or future port operations,

--whether the proposed facility can optimize use of existing
delivery, distribution, and transmission networks, and
Furthermore, if a facility is proposed for siting in an APR/ACEC,
prithe consideration will be given to environmental impact in evaluating
the fac~ility.

If a proposed facility is coastal dependent, as defined below, the
Council will require the applicant to submit at least one alternative
coastal site for evaluation. If a proposed facility is not coast.al depen-
dent, the Council will require the applicant to submit at least one inland0
site as well as a coastal alternative.

*Federal Consistency applies Policy 7 & 8
57

Coastal dependent energy facilities are:

1. facilities which utiliize the indigenous energy resources of the
coastal zone;

2. facilities which serve as a transfer point between ocean and land;

3. -facilities which transmitor transport energy from a transfer point
or other energy facility located in the coastal zone to an
inland or other coastal location; and

4. facilities which store energy necessary for trans-shipment, for
surge storage, or to supply coastal energy facilities an-,' maritime
industries.

Facilities that do not meet these criteria are not coastal dependent.

Based on this definition, energy facilities are identified below as
being coastal dependent or not. (See category I under each facility type.)
Also, additional factors to be considered in evaluating such facilities are
noted. (See category 2 under each facility type.)

Oil Terminals:

1. Coastal dependent.

2. Additional evaluation factors:

* ~~~~a) weigh impacts on any new dredging that may be required at
the proposed site versus the use of alternative sites that
may not require new dredging;
b) consider whether proposed alternatives are accessible to
oil distribution pipelines;
c) evaluate need for the proposed facility to determine if the
need can be met by using existing terminal capacity or space
in port areas if either is available for use by the applicant.

Oil Tank Farms:

1. Coastal dependent facilities: (1) facilities used for storage of
bunker fuel and fuel used by oil fired electric generating plants
located on the coast; (2) facilities used to store oil for trans-
shipment by coastal tankers and barges; and (3) surge oil storage
at oil terminals. Other oil storage facilities are not coastal
dependent.' In the consideration of inland siting of oil tank
farms, CZM is prepared to fund a special study to examine, jointly
with oil terminal operators, possible sites for locating new oil
storage capacity outside of the coastal zone. Such a study
should examine pipeline corridors and costs, as well as the
effects of such inland siting on the economics of oil distribution.

2. Additional evaluation factors:

a) assess impacts associated with tanker truck traffic, if
applicable,

Policy 8
58

e--*

b) consider accessibility to pipelines for receipt of oil.

Gas Facilities:

1. Coastal dependent facilities, facilities that rely an cryogenic
pipelines to transfer g-as or feed stocks from ship to shoreside
storage. Not coastal dependent facilities: facilities fed by
natural gas pipelines, tanker truck, or rail and gas processing
facilities, cryogenic storage facilities.

2. Additional evaluation factors:

a) assess the risks to public safety, including the potential
magnitude of danger and size of populations affected,
b) evaluate the size of available buffer zones.

Electric Generating Facilities:

1. Not coastal dependent, except for facilities which use tidal
power to generate electricity.

2. Additional evaluation factors:

a) consider the impacts of transmission line corridors that
may be required at each alternative site,
b) evaluate alternative cooling systems other than "once
through cooling."

Refineries:

1. Not coastal dependent.

2. Additional evaluation factors:

a) assess whether sufficient acreage is allotted for a
buffer zone,
b) evaluate alternative cooling systems other than "once
through cooling",
c) assess the impacts associated with the generation of any
hazardous wastes.

Deepwater Ports:+

1. Coastal dependent, with the exception of associated onshore
tank farms which must be assessed as above.
2. Additional evaluation factors:

a) in assessing the need for a new deepwater port, determine
whether the deepwater port would replace or supplement
existing marine terminals,
b) assess whether any cost savings due to reduced transport
costs would accrue to the customer,

+ Under the terms of the federal Deepwater Port Act, gubernatorial approvalS
as well as CZM consistency is required.

Policy 8
59

c) assess whether harbor congestion and ship traffic would
be reduced,
d) assess the change in environmental impacts if the deepwater
port is to replace existing terminals or assess the added
environmental impacts if the deepwater port is to supplement
existing terminals, including but not limited to chronic oil
discharge, major oil discharge due to tanker groundings,
collisions, and pipelines rupture, oil spill trajectories from
proposed sites, impact of pipeline construction, impact of
tank farm construction and operation,
e) assess the risks of environmental damage to designated Areas
for Preservation or Restoration,
f) assess accessibility to pipelines for distribution of oil.

Coastal dependent energy facilities shall not include facilities which
store, process or generate energy, except as provided for above.

Transmission Lines and Pipelines:

1. Coastal dependent where transmitting or transporting energy to,
from, or within the coastal zone.

2. Additional evaluation factors:

a) consider the impact of transmission line and pipeline corri-
dors construction and maintenance,
b) assess the risks to public safety, including the potential
magnitude of danger and size of populations affected
c) assess the environmental impacts of potential spills, leaks,
and ruptures of pipelines.

IMPLEMENTATION

Massachusetts has created a unique state agency - the Energy Facili-
ties Siting Council (EFSC) - for reviewing and approving energy plans and
facility sites.

The EFSC has agreed to incorporate the above policy and considerations
in its review and approval process. The meshing of CZM policies with EFSC
review and approval processes results in a five step procedure to be
followed in assessing and approving plans and sites for energy facilities,
as outlined below:

Step 1 - Siting Energy Facilities in APRs/ACECs and Restricted Wetlands:

In wetlands restricted in accordance with the model order of Policy
(1), only certain energy facility components (transmission lines, under-
ground utility lines, and cooling water intakes and outfall structures)
will be permitted depending on the type of wetland that has been restricted
under MGLA C. 130, S. 105. Furthermore, the EFSC has agreed to give prime
consideration*to the environmental impacts of siting facilities in Areas for
Preservation or Restoration/Areas of Critical Environmental Concern (see
Policy (2)). Also, the Massachusetts Ocean Sanctuaries Act (MGLA C. 132,
SS. 13-17), which encompasses coastal waters of highest water quality and
the preponderance of offshore- shellfish beds and traditional commercial
and sports fishing grounds, requires state agencies, including the EFSC, to
* See Attorney General's Memorandum Opinion text and footnote 29.

Policy 8
60

give special cognizance to the care and protection of the sanctuaries in
siting energy facilities.

Step 2 - Evaluating Energy Needs and Site Suitability:

This second step involves the process used by EFSC in meeting its
statutory requirements, to ensure a necessary energy supply with a minimum
impact on the environment at the lowest possible cost. The Council examines
ten-year forecasts of demand required for electric companies, five-year
forecasts for gas companies, and notices of intent to construct oil facili-
ties required of oil companies. In that examination and approval of fore-
cast projections, the Council reviews analyses of alternatives provided by
applicants, including other methods of generating, manufacturing, or storing
gas or electricity, strategies for promoting energy conservation or consump-
tion or for modifying load curves, other sources of providing energy, the
alternative of not providing additional oil or gas, and applicant provided
descriptions of how policies of the Commonwealth or the federal government
were taken into account. Through this comprehensive examination and review
power, the Council determines whether to approve an applicant's forecast of
energy demand needs. Once the need for additional energy is established,
and approval given to the way (i.e., the kind of facility) in which the
need should be met, the Council examines alternative sites for the
approved facility.

National and regional energy needs are, by statute and by regulation,
expressly built into EFSC decisions on electric generating facilities and
retail gas pipelines. Since most M~assachusetts utilities are members of
NEEPOOL, electricity generated by them is distributed throughout New England;
therefore, EFSC inherently fulfills regional needs when it approves elec-S
trical forecasts. Furthermore, as part of the required evaluation of the
economic viability of proposed oil facilities, EFSC considers energy needs
broader than those of the Commonwealth. (See EFSC regulation, rules 63.2,
63.6, 66.1, 66.6, and 71.5 and Chapter 9, National Interest, for an explan-
ation of this process.)

Among the findings which the EFSC must make in approving a long range
forecast or notice-of intent, are that the facility plans are consistent
with current health, environmental protection and resource use policies of
the Commonwealth and consistent with the policy of providing a necessary
supply, at lowest cost and minimum environmental impact. In making these
environmental findings, the Council will use the CZM Policies as adopted
by the Secretary of Environmental Affairs by MGLA Chapter 21A regulations,
as an expression of current health, environmental protection, and resource
use policies of the Commonwealth. Policy (8) specifies which kinds of
energy facilities are coastally dependent and therefore must be accommodated
in the coastal zone, and indicates what kinds of alternative sites should be
considered by the Council. This policy ensures that reasonable alternatives
are considered and that sites are avoided which could lead to substantial
harm to the most valued areas of the coastal zone. Other CZM policies will
be used by the Council to conduct its evaluation of environmental impacts
on proposed sites as part of its statutory charge to provide a necessary
energy supply with minimum environmental impact at lowest cost. In this
evaluation, CZM policies that may be applicable to privately funded energy
facilities include: protection of marine resources (Policies (1), (2)); con-
struction in water bodies and in designated port areas (Policies (4), (7));
dredging (Policy (5)); evaluation of impacts on historic districts or sites

Policy 8
61

(Policy (12)) and public recreational facilities (Policy (13)); evaluating
the exploitation of indigenous and alternative sources of energy for
impacts on the marine environment, fisheries, water quality, wildlife and
recreation (Policy (9)); and conformance to waste discharge, pollution and
wetland protection requirements (Policy (10)). Changes in the EFSC's reg-
ulations will be made in order to provide the Council with the minimum
information necessary to evaluate projects and ensure their consistency
with state environmental policies.

Step 3 - State and Local Permitting and Licensing:

Once the Council approves a facility and site, the third step of the
siting procedure takes place. Under this step, the objectives are to
obtain required permits and approvals from state and local agencies. Envir-
onmental Affairs agencies have regulatory responsibilities over specific
resources such as air, water, ocean sanctuaries, wetlands protection, and
tidelands. Local regulatory agencies have the responsibility to review the
site and facility for conformance to local zoning.

Step 4 - Appeals to EFSC

Since providing energy is a vital public need, and energy facilities
provide widespread rather than local benefit (often in the national inter--
est), the Massachusetts energy facility siting procedures provide for an
appeal process to ensure that the results of the third step of the procedure
cb-not unreasonably prevent the construction of an EFSC approved energy
facility at an approved site. This fourth step is triggered by petition
from an electric, gas or oil company to the EFSC for issuance of a
0 ~~Certificate of Environmental Impact and Public Need on the grounds that a
state or local agency has denied a permit or taken an action which has
imposed burdensome conditions, caused undue delays, or otherwise unreason-
ably conditioned the construction of an EFSC approved facility at an
approved site. If after reviewing the petition, the Council makes an
affirmative finding, the Certificate, with whatever conditions it may
include, overrides the state or local permit or license in question.

Step 5 - Federal Consistency

Due to the four--step process of energy facility approval at the state
level and the dissimilar jurisdiction of certain federal agencies, the
federal consistency process for energy facilities is complex. For permits
from the FERC and the NRC, CZM will issue its concurrence after forecast
approval because of the similarity of-jurisdiction of these agencies with
the Council. However, the scope of the concurrence for FERC and NRC permits
is limited to those siting or financial matters actually involved in the
EFSC approval or under the exclusive jurisdiction of federal agencies. This
limited concurrence does not preclude the environmental analysis by EOEA
agencies when licenses or permits are ultimately sought nor stands as a CZM
concurrence for purposes of such agency licensing or EFSC issuance of a
Certificate of Environmental Impact and Public Need.

For all energy facilities, once all EOEA permits are granted, CZM con-
currence will issue consistently with such conditions. Should an override
0 ~~from the EFSC be sought, on grounds other than the denial or imposition of
burdensome conditions by an EOEA agency, no further CZM concurrence is
needed. Should a Certificate of Environmental Impact and Public Need be

62 Policy 8

e's-ought on the basis of the denial or imposition of burdensome conditions by_'N
an EOEA agency, federal consistency concurrence will be issued if the EFSC
has awarded the Certificate.

Primary State Authorities +

Energy Facilities Siting Council (MGLA C. 164)

Primary Federal Consistency

Federal Energy Regulatory Commission
Nuclear Regulatory Commission

policy 9 *

a. Accommodate exploration, development and
production of offshore, oil and gas
resources while minimizing impacts on the
marine environment, especially on fisher-
ies, water quality and wildlife, and on
the recreational values of the coast, and
minimizing conflicts with other maritimne-
dependent uses of coastal waters or lands.
Encourage maritime-dependent facilities
serving supply, support or transfer func-
tions to locate in existing developed
ports.

b. Evaluate indigenous or alternative sources
of energy (coal, wind, solar and tidal
power) and offshore mining to minimize
adverse impacts on the marine environment,
especially with respect to fisheries,
water quality, and wildlife, and on the
recreational values of the coast.

Narragansett Basin coal and offshore oil and gas resources on Georges
Bank may provide indigenous sources of energy for New England. In addition,
increased attention is being devoted to developing and making use of alter-
native energy sources -- most notably solar and wind power. Since these
latter alternatives are likely to pose considerably less environmental
impacts than other energy sources, CZM strongly endorses efforts to develop
them. (See Policy (25)).

However, in developing all of these much needed energy sources,
special care must be exercised to avoid harm to the resources of the coast
that already provide benefit to man. The most important of these are the
fishery resources of coastal waters (including traditional fishing grounds
and known spawning areas); the quality of coastal waters, which maintains
the health and harvestability of coastal fisheries and enhances recreational

+ Gas, oil and electric facilities not covered by the EFSC 's jurisdiction
are solely subject to such other policies of the CZM program as may
apply.

Policy 8 & 9
*Federal Consistency applies 63

e-`

benefits; wildlife wintering, nesting, and migratory stopover areas; and
the recreational resources of the coast, particularly its bathing beaches.
IMPLEMENTATION'

The keys to implementing this policy are:

1. The licensing of oil and gas pipelines and related processing and
storage facilities by the Energy Facilities Siting Council (e
Policy (8));

2. The state's licensing functions that may pertain to offshore mining
and alternative energy source development within the state's
territorial limits, enforcement of the Ocean Sanctuaries and Wet-
lands Acts, and application of federal consistency where
applicable (see Policies (1), (2), (4), (5) and (6));

3. The encouragement of maritime-dependent OCS support facilities in
designated port areas, consistent with local zoning and Policy (7);

4. The role CZM will play in monitoring and reviewing the OCS leasing
and development process;

5. The exercise of the federal consistency provisions of the CZMA
to such federal actions as pertain to the exploitation of OCS
resources; and

6. CZM assistance in planning for onshore development associated with
OCS activities.

As noted, 1-3 above have been addressed elsewhere in this plan. The
latter three are discussed below.

CZM Role in Reviewing OCS Leasing

CZM has been and will continue to be active in reviewing the OCS
leasing process. One CZM role will continue to be suggesting tracts that
should be withdrawn from sale because of a combination of such factors as
their value for fisheries, the risks of oil spills reaching recreational
beaches, and the existence of prime environmental resources. CZM will also
review Environmental Impact Reports on OCS leasing and development actions
and U.S. Geological Survey operating orders specifying measures to be taken
for drilling. CZM will also continue to advise the federal government on
possible adverse impacts to the resources of Massachusetts' coastal waters
and on measures that might be taken to minimize adverse impacts. The
Massachusetts CZM4P believes that proposed lease sales and lease sale
activities are also appropriate matters for the application of the federal
consistency requirement, but acknowledges that this question is now the
subject of disagreement between the Departments of Commerce and Interior and
therefore is presently unresolved. Accordingly, the Massachusetts CZMP,
while not now specifically claiming federal consistency for such activities,
reserves the right to make such a claim once this inter-departmental dis-
* ~~pute has been resolved.

Policy 9
64

Review of OCS Exploration and Development and Production Plans

CZM will review for consistency OCS plans for exploration and for0
development and production submitted to the Department of Interior. CZM
will also review for consistency licenses and permits issued on gas pipe-
lines by the Federal Energy Regulatory Commission, on platforms by the
Corps of Engineers, on wastewater discharges by the Environmental Protection
Agency, and on pipeline rights-of-way by the Bureau of Land Management.
Such federal actions will be deemed consistent with the CZM program if:

-construction in Areas for Preservation or Restoration conforms to
applicable regulations,

--risks of environmental harm to fish spawning areas are assessed
and minimized,

--necessary dredging, spoil disposal, and construction of struc-
tures minimize damage- to the marine environment,

--risks of oil and gas spills and possible trajectories are
evaluated and appropriate protection measures taken,

--potential damage or interference to traditional fishing grounds
is evaluated and avoided,

--placement of structures in geologically hazardous areas is
avoided, thereby minimizing such risks as pipeline breakage,

--disposal of drilling muds and drill cuttings does not damage
spawning areas and fishing resources,

--potential harm to wintering, nesting, or migratory stopover
areas for wildlife is assessed and minimized, and

--planned placement of on-shore facilities conforms to Policy (7).

CZM Assistance and Planning - In conjunction with the Lieutenant
Governor 's Office of Federal-State Relations, the Office of State Planning
and the Energy Policy Office, CZM will continue to provide technical
assistance to communities on on-shore facilities connected with OCS develop-
ments. Also, CZM, in conjunction with other state agencies, will work with
communities to make use of Coastal Energy Impact funds made available under
the Coastal Zone Management Act Amendments of 1976 to communities to help
them shoulder additional costs incurred by accommodating coastal energy
facilities. In addition, CZM will continue to participate in special
governmental studies for the New England region on possible OCS pipeline
corridors, OCS impacts and the like.

Primary State Authorities

Division of Mineral Resources (MGLA C. 21, S. 54)
Waterways Program (MGLA C. 91)
Ocean Sanctuaries (MGLA C. 132A, SS. 13-17)
Energy Facilities Siting Council (MGLA C. 164, S. 69 F-R)0
Wetlands Protection Act (MGLA C. 131, S. 40)
Wetlands Restriction Act (MGLA C. 130, S. 105)
Act Regulating Coal Mining (Chapter unassigned)

Policy9
65

Primary Federal Consistency

OCS Plans for Exploration and Development and Production
FERC Licenses on Gas Pipelines
U.S. Army Corps of Engineers Section 10 and 404 Permits
EPA NPDES Permits
BLM Pipeline Right-of-Way Permits

Policy 10

All development must conform to existing
applicable state and federal requirements
governing sub-surface waste discharges,
sources of air and water pollution and
protection of inland wetlands.

Regardless of location in the coastal zone, all development actions
must conform to existing state and federal permit requirements for the
discharge of substances into the air or waters of the Commonwealth and
for the protection of inland wetlands. In addition non-point sources of
air pollution must be in conformance with the State's air implementation
plan. Commercial, industrial and residential development to which other
CZM policies do not apply are considered to be of local concern, provided
they are in conformance with the State Environmental Code, laws protecting
inland wetlands, and applicable discharge permit requirements.

IMPLEMENTATION

This policy is to be implemented by existing EOEA agencies in
accordance with existing procedures and regulations. Where necessary,
CZM will provide supporting funding for additional staff resources to
assure that the laws are adequately administered and enforced.

Primary State Authorities

The State Environmental Code Title V (MGLA Ch. 21A, S.13, C.111,S.17)
Protection of Inland Wetlands (MGLA Ch. 131, S. 40 and
MGLA Ch. 131, S. 40A)
Air Quality Permits (MGLA Ch. 111, SS. 142A-142E)
NPDES Permits (MGLA Ch. 21, S. 43 and PL 92-500, S. 402)
Sewer Connections and Extensions (MGLA Ch. 21, S. 43)
State Air Implementation Plan
All Other Existing Permitting Requirements as may be applicable.
Wetlands Protection Act (MGLA C. 131, S. 40)

Primary Federal Consistency

Section 10, 404 Permits

*Federal Consistency applies Policy 9 & 10
66

Policy 1 1'*

Protect designated scenic rivers in the
coastal zone. Support designation of areas
for preservation or restoration as "sign
free areas."

IMPLEMENTATION

CZM funding will be used to expand the staff of the Scenic Rivers
Program in DEM to expedite implementation of this program. The North
River is to be the first river so designated in the Commonwealth and will
serve as a model for future designations, although each designation will
be strongly tailored to local concerns and recommendations and may involve
varying types of land use restrictions. Land use restrictions can encom-
pass the alteration or pollution of rivers and contiguous lands within
100 yards of their banks.

CZM will petition the Outdoor Advertising Board to designate lands
within nominated APR's/ACEC's as Sign Free Areas. The significance
of this designation is that off-premise billboards and other forms of
advertising in areas that are of historical scenic, or environmental
siginficance are prohibited.

CZM will also cooperate with the Department of Public Works in
identifying and designating Scenic Highways in the coastal zone. This
designation carries no regulatory significance but serves as a signal
to highway planners that important scenic qualities should be conserved
to the maximum extent possible.

Primary State Authorities

Scenic and Recreational Rivers Act (MGLA Ch. 21, S. 17A)
Control of Outdoor Advertising (MGLA Ch. 93, S. 29 and
MGLA Ch. 93D)

Primary Federal Consistency

Section 10, Section 404 Permits

* *Federal Consistency will apply after such areas nave been ofticially
designated. 67 Policy 11

* ~~Policy 12*

Review proposed developments in or near
designated or registered historic districts
or sites to ensure that federal, state, and
private actions requiring a state permit
respect their preservation intent and minimize
potential adverse impacts.

Conservation of coastal wetlands as provided in Policies (1) and (2)
will indirectly provide for protection of the coast's most significant
natural scenic resources, since permitted activities in these areas will
primarily be of a non-intensive nature. This policy is designed to
protect significant historic and cultural features in the coastal zone.

For purposes of this policy, the geographic scope of near shall
be defined similarly to the application of state zoning act notices
(MGLA Chapter 40A, Section 12). Near thus includes parts of abutting
properties, properties directly opposite on any public street or way,
or any other property to the extent proposed developments on any of
these are within 300 feet of the historic site or district.

* ~~~Historic districts or sites are designated through:

1. placement on the National Register of Historic Places;
2. creation of historic districts by local governments; and
3. establishment by special acts of the Massachusetts Legislature.

Currently designated historic districts in Massachusetts are listed below:

Historic Districts Established by Coastal Communities

Beverly: Fish Flake Hill Historic District
Dennis: South Dennis Historic District
Gloucester: Gloucester Historic District
Harwich: Harwich Historic District
Manchester: Manchester Historic District
New Bedford: Waterfront Historic District
Plymouth: Town Brooke, Town Square Historic District
Salem: Derby Street Historic District
Sandwich: Sandwich Historic District
Tisbury: William Street Historic District
Wareham: Parker Mills Historic District
Westport: Westport Point Historic District

*Federal Consistency applies Policy 12
68

Historic Districts Established by Special Acts of
Massachusetts Legislature

Barnstable County: Old Kings Highway Regional Historic District
Falmouth: Falmouth Historic District (7 areas)
Hingham: Lincoln Historic District
Marblehead: Old Town Historic District
Ginger Bread Hill Historic District
Nantucket: Nantucket Historic District (entire island)
Yarmouth: Historic Yarmouthport 'Historic District

IMPLEMENTATION

Since impacts on historic sites or districts established by special
legislative act or in accordance with MGLA Ch. 40A are regulated by local
historic district commissions, this Policy is to be implemented primarily
at the local level. A state regulatory agency will become involved in
implementing this policy, however, when a private action proposed in or
near a historic district or site requires both a state permit from the
agency and a review under the Massachusetts Environmental Policy Act.
Under S. 61 of MEPA, the state agency is charged to find that, prior to
issuance of the permit, all practical means and measures have been taken
to minimize damage to the environment, including "destruction, damages,
or impairment, actual or probable, to.-.historic districts or sites."
Pursuant to this procedure, developments which are found not to be in
conformance with the above policy will be conditioned or denied. The
Massachusetts Historical Commission will be consulted to assist in the
identification and evaluation of potential impacts. Projects involving
the use of state funds will be similarly evaluated and appropriately0
modified or denied in order to mitigate adverse impacts on historic
sites or districts.

In addition, most local historic districts and historic sites are
already on the National Register, and are thus assured a measure of
protection against any potentially damaging effects caused by federally
funded or licensed projects. CZM will reinforce the review procedure
established by the National Historic Preservation Act, however, by not
issuing a certificate of consistency subsequent to review of such projects
unless the projects are deemed not to cause significant negative impacts
on the historic qualities of the districts or sites. As with state
funded or licensed projects, review will be coordinated with the
Massachusetts Historical Coimmission consistent with the procedures
established by the National Historic Preservation Act.

Primary State Authorities

Massachusetts Environmental Policy Act (MGLA Ch. 30, SS- 61-62J14
Historic District Act (MGLA Ch. 40C)
Special Historic District Acts.

Primary Federal Consistency

All federal funding and licensing activities.

Policy 12
69

* R~~Poicy 13*

Review developments proposed near existing
public recreation sites in order to minimize
their adverse impacts.

Existing recreation sites are extremely valuable. Demand for recrea-
tion is currently unfulfilled, the availability and cost of land precludes
the acquisition of many new sites, and high quality recreation sites can
stimulate and serve as an economic benefit to new development.

Development and projects near recreation sites, either onshore or of f-
shore, can create adverse environmental impacts which can degrade the
quality of the sites. Examples of such impacts are: increased traffic
congestion on access roads; obstruction or limiting of public access; water
pollution; degradation of the recreation experience through change in site
character, air pollution, and noise. These impacts can be mitigated by site
planning and design measures which provide setbacks and buffer zones and
control water pollution, noise impacts, erosion and sedimentation, and
aesthetic impacts.

IMPLEMENTATION

This policy will be implemented similarly to Policy (12) (including
the definition of "near") through review of publicly funded projects and
private projects requiring both a state permit and a review under the
Massachusetts Environmental Policy Act. A list of beaches to which the
policy applies is presented on the following pages.

Where impacts cannot be avoided through exercise of this review pro-
cess, state purchase of easements or development rights or "land swaps"
will be considered to bring about the desired results.

Primary State Authorities

Massachusetts Environmental Policy Act (MGLA C. 30, SS. 51-62H)

Primary Federal Consistency

All federal funding and licensing activities

*Federal Consistency applies Policy IJ
70

BEACHES WITH PUBLIC ACCESS AND PARKING*

(i.e., to which Policy 13 applies)

Plum Island Beach Perry Beach Quincy
and State Park Newburyport Rhoda Street Beach Quincy
Salisbury Beach Lower Germantown Beach Quincy
State Reservation Salisbury Baker Beach Quincy
Salisbury Beach Salisbury Mound Street Beach Quincy
Crane Beach Ipswich Wessagusett Beach Weymouth
Hodgkin's Cove Gloucester Fort Point Beach Weymouth
Wingaersheek Beach Gloucester Hingham Bathing Beach Hingham
Half Moon Beach Gloucester Pemberton Beach Hull
Pavilion Beach Gloucester Bay Side Beach Hull
Good Harbor Beach Gloucester Nantasket Beach Hull
Cressy Beach Gloucester Gun Rock Beach Hull
White Beach Gloucester Brant Rock Beach Marshfield
Pebbly Beach Rockport Green Harbor Beach Marshfield
Back Beach Rockport Duxbury Beach Duxbury
Front Beach Rockport Plum Hills Beach Duxbury and
Forest River Park Salem Plymouth
Collins Cove Salem Long Beach Plymouth
Beverly Harbor Beverly Scusset Beach Bourne
Obear Park Beverly Bossetts Island Bourne
Dane Street Beach Beverly Potuisset Beach Bourne
Independence Park Beverly Barlows Landing Bourne
Juniper Cove Beach Salem Monks Park Bourne
Juniper Beach Salem Monument Beach Bourne
0
Salem Willows Beach Salem Gray Gobles Beach Bourne
Horse Shoe Beach Salem Falmouth Beach Falmouth
Porter River Beach Danvers Old Silver Beach Falmouth
Devereaux Beach Marblehead Trunk River Beach Falmouth
Riverhead Beach Marblehead Menauhant Beach Falmouth
Castle Park Marblehead Falmouth Heights Beach Falmouth
Kings Beach Lynn Surf Drive Beach Falmouth
Lynn Beach Lynn Megonsett Beach Falmouth and
Nahant Beach Nahant Bourne
Revere Beach Revere Sandwich Beach Sandwich
Short Beach Winthrop Sandy Neck Beach Sandwich
Winthrop Beach Winthrop South Cape Beach Mashpee
Constitution Beach Boston Kalmus Park Beach Barnstable
Castle Island Boston Keyes Memorial Beach Barnstable
Pleasure Bay Boston Coville Beach Barnstable
City Point Boston Craigville Beach Barnstable
L Street Beach Boston Dowses Beach Barnstable
Carson Beach Boston Englewood Beach Yarmouth
Malibu Beach Boston Bay View Beach Yarmouth
Tenean Beach Boston Colonial Acres Beach Yarmouth
Orchard Beach Quincy Grays Beach Yarmouth
Wollaston Beach Quincy Bass River Beach Yarmouth
Heron Road Beach Quincy Parker-'s River Beach Yarmouth
Willows Beach Quincy Seagull Beach Yarmouth

* Public parking defines as space for more than 25 cars.

BEACHES WITH PUBLIC ACCESS AND PARKING (cont. page 2)

Chapin Memorial Beach Dennis Short Life Beach Eastham
Taunton Avenue Landing Dennis Nauset Beach Eastham
Dunes Road Landing Dennis Nauset Lighthouse Beach Eastham
Horse Foot Path Beach Dennis Coast Guard Beach Eastham
Bayview Road Beach Dennis Boat Meadow Eastham
Corporation Beach Dennis Eastham Beach Eastham
Cold Storage Beach Dennis Indian Neck Beach Eastham
Town Beach Dennis Mayo's Beach Eastham
Sea Street Beach Dennis Cahoon Hollow Beach Eastham
Glendon Beach Dennis White Crest Beach Eastham
Haigis Beach Dennis Lecount Hollow Beach Eastham
South Village Road Marconi Beach Eastham
Beach Dennis Corn Hill Beach Truro
West Dennis Beach Dennis Ballston Beach Truro
Scargo Lake Beach Dennis Great Hollow Beach Truro
Harbor Road Beach Dennis Head-of-the-Meadow
Inman Road Beach Dennis Beach Truro
Roycraft Parkway Highland Beach Truro
Beach Dennis Longhook Beach Truro
Town Beach Brewster Herring Cove Provincetown
Paines Creek Beach Brewster Race Point Beach Provincetown
Saints Landing Brewster South Beach Edgartown
Breakwater Beach Brewster Oak Bluffs Town Beach Oak Bluffs
Crosby Landing Brewster Joseph Silva State Oak Bluffs &
Ellis Landing Brewster Beach Edgar,)wn
Robbins Hill Beach Brewster Cisco Beach Nantucket
Handing Beach Chatham Jetties Beach Nantucket
Ridgevale Beach Chatham Madaket Nantucket
Cockle Cove Beach Chatham South Beach Nantucket
Forest Beach Chatham Surfside Beach Nantucket
Pleasant Street Beach Chatham Sconset Beach Nantucket
Nauset Beach Chatham Swifts Beach Wareham
North Beach Chatham Minot Forest Beach Wareham
Holway Beach Chatham Little Harbor Beach Wareham
Harding Lane Beach Chatham Onset Beach Wareham
Chatham Light Beach Chatham West Island Beach Fairhaven
Oyster Pond Beach Chatham Horseneck Beach Westport
Harding Beach Chatham East Horseneck Beach Westport
Red River Beach Harwich Apponagonsett Point
Banks Beach Harwich Beach Dartmouth
Earle Road Beach Harwich Jones Beach Dartmouth
Skaket Beach Orleans West Beach New Bedford
Rock Harbor Beach Orleans East Beach New Bedford
Nauset Beach Orleans Lloyd Street Beach New Bedford
Rock Harbor Beach Eastham
First Encounter Beach Eastham

NON-REGULATORY POLICIES

Policy 14

Encourage and assist commercial fisheries
research and development, restoration and
management of fishery resources, develop-
ment of extensive and intensive aquaculture,
and enhancement of anadromous fisheries,
initiated at local, state and federal levels.

IMPLEMENTATION

CZM funding will be used to supplement the staff of the Division of
Marine Fisheries to provide expanded capability for developing a state
fisheries management plan and for assessing the implications of management
plans developed at the regional level in conjunction with the extension
to 200 miles of the federal fisheries jurisdiction. Secondly, CZM will
continue to work with the federal government to develop measures to protect
the fishing industry from adverse impacts of OCS development. Thirdly,
CZM will actively support federal funding for fisheries related research
and development in Massachusetts.

Primary State Programs

Division of Marine Fisheries

Primary FederaloFunding Sources

National Marine Fisheries Service
U.S. Fish and Wildlife Service
Office of Sea Grant

Policy 15*

Ensure that state and federally funded public
works Projects proposed for location within
the' 100 year coastal floodplain will:

a. not exacerbate existing hazards or damage natural buffers,

b. be reasonably safe from flood and erosion related damage,
and

*Federal Consistency applies Policy 14 & 15
73

c. not promote growth and development in damage prone or
buffer areas, especially in undeveloped areas of APR's.

0 ~~~While Policy (1) concerns private development, the above policy is
aimed at ensuring the soundness of public investment for public works
projects in hazardous areas of the coastal zone. Public facilities such
as roads or sewers that are constructed in hazardous areas may be subjected
to continual damage necessitating costly repair and maintenance. Secondly,
the provision of public services in hazardous areas with the capacity to
serve growth beyond existing development may encourage new development
that would be incompatible with the damage of risks and the need to protect
natural buffers. Thirdly, increasing. public services, together with the
availability of subsidized flood insurance, may increase private property
values, thereby inducing pressure for additional federal or state subsidies
to build shoreline protection structures. Such a result would be incon-
sistent with the national policy to shift the burden of risk of living
in hazardous areas to the property owner and may induce spiralling sub-
sidies of development in hazardous areas, as well as discourage voluntary
relocation.

The installation of sewerage systems and treatment plants in highly
dynamic and unstable environments, such as barrier beaches, should be
discouraged, since construction of these facilities may, as noted above,
encourage conversion of summer homes to year-round use or stimulate some
new development. Installation of sewerage without recharge facilities
may cause depletion of critical groundwater supplies. Additionally, a
system failure during a major tidal flood could cause a severe pollution
problem. Thus, structural solutions in high risk hazardous areas should
be implemented only if warranted by a severe water pollution problem and
if non-structural solutions, such as upgrading of existing subsurface
disposal systems are deemed ineffective or cost prohibitive . If implemented,
the design capacity of sewerage systems should be limited to the existing
peak population and the systems should be adequately floodproofed.

IMPLEMENTATION

This policy will primarily be implemented by central CZM staff within
the Office of the Secretary who will formally review proposed Public Works
projects through use of existing review processes (A-95, NEPA, and NEPA).
Particular scrutiny will be given to design capacity, siting of facility
components, service areas or new access provided if applicable, adequacy
of floodproofing, and the nature and extent of necessary site disturbance.
This policy applies only to public works projects and not to other forms
of federal assistance such as home mortgages or dredging.

Primary State Programs

Division of Water Pollution Control (MGLA C. 21, S. 27)
Department of Public Works (MGLA C. 81)
Massachusetts Bay Transportation Authority (MGLA C. 161A)

Primary Federal Consistenc y

Wastewater Treatment Plant Construction Grants (PL 92-500, S. 201)
0 ~ ~~Transportation Projects Funded by DOT
Public Works Projects Funded by the Economic Development
Administration and HUD's Community Development Block Grant Program

Policy 15
74

Policy 160

Encourage acquisition of undeveloped hazard
prone areas for conservation or recreation
use, and provide technical assistance for
hazard area zoning and mitigation of erosion
problems.

Acquisition of land, either in full or in part through easement pur-
chase, is a common means of preserving or expanding open space. It is
also the most effective tool for preventing growth and development that
would be vulnerable to storm damage or would impair the buffering functions
of natural areas. Further, most open space uses will not require construc-
tion of extensive facilities and therefore are appropriate for damage
prone areas.

On the state level, it is unlikely that sufficient funds will be
available for the acquisition of lands on the basis of hazard protection
alone, since the availability of acquisition funds will typically be
dependent on the recreational benefits that can be derived. Therefore,
hazard prone lands should be given priority for state acquisition if
either:

a. undevelopable because of the hazards present; e.g., a rapid
rate of erosion makes a piece of shorefront property unsell-
able or unbuildable; or

b. they serve as a natural buffer protecting public investments
in nearby or downcoast areas;

and if; they can be improved through non-structural measures so
that they can sustain an appropriate type and level of
public recreational activity, given the nature of the
hazards present.

Acquisition by local conservation commissions, on the other hand,
can be used to conserve the buffering or ecological value of hazard
prone areas without requiring that intensive recreational use be supported.
It is therefore recommended that hazard prone lands be considered for local
acquisition (with or without state assistance) if they serve as natural
protective buffers or if their buffering capabilities could be restored
through non-structural improvements, particularly if local zoning or
other controls are inadequate to prevent development that would be
vulnerable to damage or would exacerbate existing hazards.

Acquisition by any level of government should also be given serious
consideration if federal, state, or local funds have been repeatedly
allocated for floodproofing or repair of damaged utilities, roads, bridges
or other public services. Additionally, in extreme cases, acquisition
of substantially damaged developed areas may be justified in order to
prevent redevelopment that would again risk major losses, degrade natural

Policy 16
75

e-_
buffering functions, or require continued public subsidy (such as disaster
relief or flood insurance). "Substantially damaged" should be defined as
structural damage who-se value amounts to greater than .75% of the market
value of the structure (s) prior to occurrence of the damage.

In addition to acquisition, CZM will support local zoning measures
that promote use of erosion and flood prone areas appropriate to the risks
of damage and the need to protect natural buffers. CZM also supports
restoration measures, access controls and other means that may be taken
at the local level to enhance the protective capabilities of natural land
forms such as dunes and barrier beaches.

IMPLEMENTATION

Acquisition of hazard prone areas by the state could be achieved
using existing capital outlay funds, Coastal Zone Management funds, or
the Land and Water Conservation Fund of the Bureau of Outdoor Recreation,
provided substantial recreational benefits can be derived. The propensity
for hazards would thus be considered as only one of many criteria under
existing point system selection processes.

The selection system which is used to allocate state Self-Help funds
to communities who can meet the matching requirements weights ecological
and other natural values more heavily, thereby providing greater flexibility
in receiving funding for acquiring hazard prone areas. Use of this fund
may therefore be most appropriate to local acquisition of hazard prone
areas. In any case, acquisition of coastal lands for hazard area
management should be coordinated with acquisition of recreation projects..

CZM technical staff will be available for assistance, on request,
in the development of local hazard area zoning by-laws or erosion miti-
gation measures.

Primary State Programs

Self-Help Fund (MGLA C. 132, S. 11)

Primary Federal Funding Sources

Land and Water Conservation Fund (BOR)
Office of Coastal Zone Management (Section 315, 1976 amendments to
CZMZ)
National Flood Insurance Act (S. 1362)

Fblicy 17*

Provide funding for protection from tidal
flooding and erosion, emphasizing the use
of non-structural measures where feasible.

*Federal Consistency applies Policy 16 & 17
76

(Policy 17 cant.)

Non-structural protective and restoration measures, such as beach
nourishment, dune rebuilding, and stabilization by vegetation planting
most closely simulate the effects of natural conditions. If properly
designed, they can provide effective buffers against storm forces, are
generally substantially less expensive than structural measures, are
aesthetically more compatible with natural landforms, and avoid the
creation of adverse effects on adjacent or downcoast areas. Therefore,
they should be favored over structural measures on sites where feasible.

Structural solutions, on the other hand, are probably more appropriate
to urban areas where natural buffering function have been irrevocably de-
stroyed, where public lands are threatened, floodproofing, of extensive
development would be cost prohibiti'Qe and/or ineffective, or where commercial
and industrial activities are dependent on proximity to the waterfront.
structural solutions are most inappropriate to areas characterized by very
dynamic conditions such as barrier beaches, and should not be implemented
except where clearly required by circumstances mandating their use.

Regardless of whether structural or non-structural measures are used,
federal and/or state funding of such measures shall only be used if:

1. The area to be tprotected is of greater than local significance
and substantial public benefit in the form of protection of
existing public facilities or development of improved public
access and expanded public use opportunities can be achieved
in conjunction with construction of the proposed project;

2. adequate land use regulations or physical controls on access can be
established to prevent deterioration of restored or stabilized areas;

3. in the case of restoration and nourishment, adequate design
criteria have been established and can be achieved to ensure proper
height, slope, width, and sand grain size of restored dune and
beaches; and

4. the costs of and responsibilities for future maintenance have
been identified and agreed to.

In addition to the above criteria, structural solutions should
only be implemented if:

1. Non-structural measures, such as acquisition, relocation, land
use regulation, floodproofing, and dune/beach restoration or
stabilization have been evaluated and rejected as being too
costly, ineffective, or legally infeasible, and

2. Implementation of structural measures will not seriously impair
the functioning of natural processes, nor adversely affect
adjacent or downcoast areas to a significant degree.

IMPLEMENTATION

The Division of Waterways is authorized to undertake improvements
to provide protection from erosion and flooding, and will be the
principal state agency implementing this policy. CZN will also work

Policy 17
77

with the Corps of Engineers and Soil Conservation Service to seek
necessary appropriations and ensure consistency with this policy.
CZM also encourages demonstration and evaluation of new technological
solutions such as perched beaches and floating breakwaters.

Primary State Programs

Waterways Program (NOLA Ch. 91, S. 11)

Primary Federal Consistency

U.S. Army Corps of Engineers Projects
Soil Conservation Service Erosion Control Projects
Economic Development Administration

policy 18

Encourage, through technical assistance and
review of publicly funded development,
compatibility of proposed development with
local community character and scenic resources.

IMPLEMENTATION

The majority of issues relating to visual impacts of proposed develop-
ments are matters of local concern, and can best be handled through local
management mechanisms. CZM will, however, offer two types of assistance,
for promoting improved management of the visual environment at the local
level. These include:

(a) Development of handbook to be available to developers and
municipalities which will detail facility siting recommendations,
measures to enhance visual access and mitigate negative
impacts, legal alternatives for managing local visual
quality, and methods for evaluating potential visual impacts
and affected populations.

(b) Legal assistance, when requested, for the development of
local zoning by laws, land use controls, and tax incentives
aimed at maintaining are enhancing community character.
These include for example; clustered PUD zoning, transfer
development rights, density bonuses, performance zoning,
design review procedure, local scenic road designation and
other measures allowable under various state enabling acts.

In addition, CZM shall act in an advisory role by means of existing
A-95, MEPA, and NEPA review processes to suggest how facilities to be
constructed with federal or state funds can best be sited and designed
to avoid adverse visual impacts. Federal Consistency will only be required

Policy 17 & 18
78

in cases involving impacts on historic districts or sites as provided
in Policy 12.

Primary State Authorities

Zoning Enabling Act (Acts of 1975 Ch. 808)
Scenic Roads Act J(MGLA Ch. 40, S. 15C)

Rolicy 19*

Promote the widest possible public benefit
from channel dredging, ensuring that designated
ports and developed harbors are given highest
priority in the allocation of federal and state
dredging funds. Ensure that this dredging
is consistent with marine environment policies.

Adequate channel depths are a prerequisite for any kind of waterfront
dependent activity. Given that public funding for dredge projects is
limited, public agencies must, of necessity, allocate these funds to
projects which provide the greatest public benefit and demonstrate the
most pressing need. At the same time, dredging and disposal, especially
of contaminated dredge material, can cause severe and lasting adverse
impacts on the marine environment.

As discussed in Policies I and 2, all dredging, be it public-,or
private shall be:

1. regulated in salt marshes, dunes, sandy beaches, barrier
beaches, and shellfish flats; and

2. limited to maintenance dredging or enhancement of shellfish
or other marine productivity in designated Areas for Preser-
vation or Restoration and salt ponds.

In the allocation of federal or state funding for dredging, priority
will be given to designated port areas (as defined in Policy (8)) and to
developed harbors.. Developed harbors are defined as those which meet at
least one of the following characteristics:

1. provides public mooring space, berths, slips, ramps, and
docks which serve a region-wide boating public, as evidenced
by either (a) public access to the harbor which is free or
open for nominal fee to non-residents and which has adequate
parking facilities; or (b) very heavy boating traffic,

2. hosts harbor facilities used by commercial fishermen,

3. serves cruise boats, ferries and other marine industry,
and/or

*Federal Consistency applies Policy 18 & 19
79

4. presents unique development opportunities for the fishing
* ~~~industry or for waterfront renewal and revitalization.

There are about 100 developed harbors along the Massachusetts coast.
In port areas and developed harbors, maintenance dredging will have the
highest priority for public assistance. Publicly funded maintenance
dredging will be scheduled so that projects demonstrating the most pressing
need, widdst public benefit, and least environmental damage are carried
out first.

Deepening or expansion of channels and 'mooring or turn-around basins
beyond depths or size to which they were initially dredged will be approved
for state or federal funding if the project meets two of the following
criteria:

1. provides broad public benefits for recreational boating which
are spread over a region and which redound to the general
public and is necessary to resolve harbor conflicts between
fishermen and recreational boaters;

2. enhances benefits to the commercial fishing industry;

3. produces economic returns to maritime shipping and other
maritime industries by reducing turn-around times and
in-harbor transit delays, and permits usage of more
efficient sized vessels; and/or

* ~~4. reduces navigational safety risks.

Furthermore, consistent with Policy 7,proposals for creation of new
channels or mooring and turn-around basins of 20-foot depth or greater
will only be publicly assisted if the need to be met by the project is of
national or statewide importance; cannot be accomplished in designated
port areas; and impacts on the marine environment are deemed to be
acceptable.

IMPLEMENTATION

State funding for dredging projects will be allocated consistently
with the benefit criteria of this policy by the Waterways Program within
DEQE. Compliance with Policy (19) and its related criteria shall also
be enforced through CZM review for consistency of federally funded
dredging activities.

Frimary State Authorities

Waterways Program (MGLA Ch. 19, S. 11)

Primary Federal Consistency

U.S. Army Corps of Engineers Projects

Policy 19
80

Policy 20

Encourage, through technical and financial
assistance, expansion of water dependent uses
in designated ports and developed harbors, re-
development of urban waterfronts, and expansion
of visual access.

In order to accomodate the increasing needs of fishing, shipping
and other marine industries, cruise or ferry services, and recreational
boating interests, existing Massachusetts's ports and harbors will require
considerable improvement and expansion of their facilities e.g. docks,
piers, bulkheads, ramps, navigational aids, and other harbor works, in
addition to dredging as discussed in Policy (19). Assistance from
state and federal funding sources is usually required to enable municipal-
ities to undertake such improvements.

In addition, by taking advantage of the visual assets of waterfront
areas, many coastal communities are undertaking major redevelopment
initiatives in formerly deteriorated downtown areas, and require state
and federal assistance for joint developments including waterfront parks,
housing, retail shops, and restaurants. The mixture of these uses along
the waterfront can provide innumerable opportunities to the general public
for visual and physical access to the waterfront and are therefore en-
couraged by CZM, provided they do not conflict with port operations (see
Policy 7). In conjunction with such renewal efforts, physical measures
which provide views of marine dependent activities and port operations
in general, are particularly supported by CZM, since these activities
have significant educational and interest value as integral elements
of the coast' s visual resources.

IMPLEMENTATION

One third of the federal funding to CZM in the first year will be
made available to coastal communities for planning and feasibility studies
of dredging and disposal options, waterfront renewal alternatives, and
port and harbor development projects in designated ports and developed
harbors. This funding will be open to all coastal communities, but
priority will be given to communities having Special Assistance Development
Areas (SADA's). The SADA's are areas having special development needs
and capabilities as identified through CZM's citizen advisory process.
The following coastal communities contain SADA's:

Beverly Nantucket
Boston New Bedford
Danve rs Newburyport
Fairhaven Plymouth
Fall River Province town
Gloucester Rockport
Hull Salem
Hyannis Scituate

Pol2lcy 7-0
81

Lynn Somerset
Marshfield Wellfleet

Secondly, CZM will act in an advocacy role to solicit funding from
state and federal sources when requested by coastal municipalities for
projects consistent with CZM policies. Thirdly, technical assistance
from CZM will be available on a day to day basis to provide help in
analyzing and resolving development problems.

Primary State Programs

Waterways Program (MGLA Ch. 91, S. 10-11)
Public Access Board (MGLA Ch. 21, S. 17 17A)
Self-Help Program (MGLA C. 132A, S. 11)
Department of Environmental Management (MGLA C. 132A)

Primary Federal Funding Sources

Economic Development Administration
U.S. Army Corps of Engineers
HUD Community Development Block Grant Program
Land and Water Conservation Fund, BOR
Coastal Zone Management Act, S. 315

Policy 20
82

Policy 21

Improve public access to coastal recreation
facilities, and alleviate auto traffic and park-
ing problems through improvements in public
transportation. Link existing coastal recrea-
tion sites to each other or to nearby coastal
inland facilities via trails for bicyclists,
hikers, and equestrians, and via rivers for
boaters.

Because some existing coastal recreation sites are underutilized and/
or badly distributed, or because resistance by coastal communities to an
increase in recreation on the coast is often based on undesirable auto
traffic impacts, CZM believes that solving transportation access problems
and providing linkages between recreation sites should be given highest
priority among measures to improve coastal recreation opportunities.
Second priority should be given to increasing the use of existing sites
through better management and maintenance. Third priority should be given
to the physical expansion of existing public facilities by public acquisi-
tion of new sites in areas of high need. Finally, technical assistance
should be made available to private recreation developers, whose develop-
ments are needed along with public projects to increase public access to
the shoreline. The policy above, and the three that follow, have been
developed to reflect these priorities.

CZM will support access improvements, both demonstration and permanent
solutions, to existing recreation areas where increased use can be sus-
tained without degradation of significant resource areas cited in Marine
Environment Policy (1) when:

(1) Existing transportation is inadequate, especially where there
are traffic problems or related environmental impacts; or

(2) the area is state or federally ow-ned, since potential impacts
from increased use can be more easily managed on public land; or

(3) the area is underutilized based on a ratio of parking to amounts
of sandy beach and adequate public facilities, rest rooms, etc.,
can be provided to support the increased use; or

(4) benefits from public transportation to recreation might spill
over into increased town commerce, tourism; or

(5) public transportation investments can service many recreation
areas near each other.

Policy 21 & 22
83

IMPLEMENTATION

CZM will participate actively with the Executive Office of Transpor-
tation and Construction (EOTC), its constituent agencies, Regional
Planning Agencies, Transit Authorities, and other relevant transportation
entities, in the transportation planning process. Through agreement with
EOTC, CZM will be given the opportunity to review projects proposed in the
state's 3-5 year Transportation Improvement Plan (TIP) and its Annual
Element (AE) and to propose needed recreation related improvements (see
Policy (26) for a full explanation of this process).

Purchase of trail easements will be given a high priority under Sec-
tion 315 funds of the Coastal Zone Management Act. CZM will also solicit
aid from the Department of Public Works to make improvements where such
trails are along side roads, over bridges, etc., and from DEM, MDC, the
Public Access Board or communities who will manage or share the benefits
of the proposed trails. Trails should be developed in conjunction with
either designated or potentially designated easements such as scenic roads
or rivers, which should be concomitantly implemented. The uses of such
trails should be compatible with the intent of the designation.

Primary State Programs

Transportation and Bikeway Programs of EOTC, DPW, MBTA
Self-Help Program (MGLA Ch. 132A, S. 11)
Public Access Board (MGLA Ch. 21, SS. 17, 17A)
Department of Environmental Management (MGLA Ch. 132A)

Primary Funding Sources

Department of Transportation
Land and Water Conservation Fund, BOR
Coastal Zone Management Act (Section 315)

Policy 22

Increase capacity of existing recreation areas
by facilitating multiple use and
by improving management, maintenance and public
support facilities. Resolve conflicting uses
whenever possible through improved management
rather than through exclusion of uses.

Many recreation sites, if managed more efficiently, could accommodate
more and different uses without much change in physical characteristics.
CZM intends to promote expanded use when:

Policy 21 & 22
84

1. opportunities for physical expansion are limited; or

2. The operational aspects of activities do not conflict; e.g.,
picnicking, and sunbathing; or

3. Improved management and maintenance can control operational
conflicts between uses; or

4. Recreational activities are seasonal, thereby allowing
sequencing of different uses; or

5. Recreational use of non-recreational areas can be accommodated
on weekends- or

6. Improvements in water quality provide expanded opportunities
for water contact sports; and

7. Where there is adequate access for additional uses to benefit
from such improvements, and

8. Resources are capable of supporting increased use without
degradation.

IMPLEMENTATION

In order to maximize benefits which can result from more efficient use
of existing recreation sites, CZM will (a) seek and provide technical
assistance to design areas for multiple use and (b) ensure that funds for
maintenance are made available and used effectively to work with other
state, federal and local agencies whose programs provide opportunities for
multiple use recreation; e.g., fishing,walkways on bridges over estuaries,
launching ramps on roads which abut water, public walkways in urban renewal
areas. (See Policy (24) for applicable state programs and federal funding
sources.)

If federal and state sources are found to be inadequate to provide
necessary funds for maintenance, CZM will work with the Department of
Environmental Management and local officials to develop pricing schemes
for public recreation that produce revenues sufficient to cover operating
expenses.

Policy 23

Provide technical assistance to developers of
private recreational facilities and sites that
increase public access to the shoreline.

Demand for the kinds of recreation experiences enjoyed on the coast
is high; the facilities and sites required to provide these experiences are

85 Policy 22 t~ 23

coastally dependent. Many of the facilities have adverse impacts on the
marine environment. Yet, if Massachusetts is to help the public to enjoy
the benefits of a productive marine environment and visually pleasing
coastal zone, both public and private means of securing general access to
the shore should be encouraged.

IMPLEMENTATION

CZM's Marine Environment policies (see Policy (1) for detailed word-
ing) specifically exempt certain types and amounts of recreation facilities
from restrictions placed on salt marshes,. dune areas, sandy beaches, and
barrier beaches. For example, the construction of boat ramps is permitted
in some of these significant resource areas, provided associated parking
facilities are built at higher elevations in less sensitive areas away from
the waterfront. Marinas are also permitted, provided their wharves or
piers are built on pilings, allowing the free flow of the tide and the
maintenance of existing circulation.

Conditioning construction to minimize adverse environmental impacts
will necessitate more sophisticated planning and design by private
developers. Therefore, CZM will prepare a design and construction practice
handbook to assist private developers in designing, constructing, and
operating marinas, beaches, boat ramps, and other recreational facilities
consistent with CZM's Marine Environment and Coastal Hazards, Visual Envir-
onment, and Ports and Harbors Policies. CZM will also offer technical
assistance to municipalities to identify appropriate boating facility
sites, develop harbor master plans, or provide other incentives to encour-
age private boating facility development. (See Ports and Harbors, Policy

Policy 24*

Expand existing recreation facilities and acquire
-and develop new public areas for coastal recrea-
tional activities. Give highest priority to
expansions or new acquisitions in regions of high
need or where site availability is now limited.
Assure that both transportation access and the
recreational facilities are compatible with
social and environmental characteristics of sur-
rounding communities.

Every region of the Massachusetts coast is deficient in various types
of recreation. Although all recreation needs will probably never be met,
both because of environmental degradation and high costs of acquisition,
development and maintenance, some regions are critically deficient, and
opportunities are dwindling. CZM's first priority is to improve transpor-
tation to and maintenance of existing facilities. Wnhere such improvements
would not be sufficient to satisfy recreation demand with areas of high
need, acquisition of new land to expand existing sites will be necessary.

*Federal Consistency applies Policy 23 & 24
86

"High need" areas are shown on the map in Section 3.5 and are based'on
the demand/supply ratio of recreation facilities. Further specification of
high need is incorporated in the site evaluation scheme developed by the
U.S. Bureau of Outdoor Recreation for the Land and Water Conservation Fund 0
used for recreation purchases. Generally, the evaluation favors areas with
high density population, low recreation land area, low financial ability to
make purchases, and above all, the quality of the proposed site and project.

Within regions of high need, CZM favors expansion of existing areas
when:

1. Undeveloped areas abutting or near existing recreation sites are
suitable for expansion; or

2. Existing sites are over-utilized and there is no nearby substitute
which might shift demand for the activity; or

3. Other public improvements have been made or are proposed on/near
existing recreation sites; for example, where state or federal
funding has been used to slow or prevent erosion of beaches; and

4. Access, including transit, roads and parking, is sufficient or
will be sufficient subsequent to implementation of transportation
improvements under Policy (21).

The acquisition of completely new sites is a complex process in all
areas of the Massachusetts coastal zone: in urban areas there is usually
not adequate land or conditions suitable for new sites; in suburban areas
community opposition is high because the residential character can be is
severely impacted by increases in traffic, people and ancillary services;
and in rural areas the recreation development must be particularly sensi-
tive to environmental constraints. However, after transportation, expan-
sion and maintenance policies have been implemented, sites must still be
acquired in order to satisfy the growing demand for recreation.

In recognition of such concerns, a formal committee comprised of com-
munities affected and relevant state agencies will be convened prior to
acquisition of any new sites in order to discuss and resolve the following
issues:

--the "need for the acquisition"

--potential traffic and environmental impacts.

--potential social and economic impacts on the surrounding
community(ies).

--possible alternatives, including expansion of other existing sites;
acquisition of smaller dispersed sites in conjunction with trails;
or acquisition of large sites in other locations.

IMPLEMENTATION

Funding of site expansions will generally be considered a higher
priority than new acquisitions. Expansions are a higher priority because
the detrimental impacts associated with the expansion will generally be less
than disturbing previously untouched areas. However, such expansions must

Policy 24
87

be consistent with policies of this plan relating to Drotection of the
marine environment.

The following table lists coastal sites which CZM considers to be of
higaipriority for acquisition and development supported by state and/or fed-
eral recreation funds, and cites three federal properties, which if dis-
posed as surplus land, should be utilized for recreation purposes. Use of
state or federal funds for any of these sites will be considered consistent
with Policy (24). However, prior to acquisition, site specific analyses of
environmental, economic, and social constraints should be conducted to
determine the appropriate form of recreational use and development that
should occur. Use of the three potential federal surplus lands for any pur-
pose other than recreation will be deemed inconsistent with this policy.
Proposed state or federally funded acquisitions of sites not on this list
will require further evaluation by CZM and amendment or revision of the CZM
Program affirming that such acquisitions are consistent with Policy (24).

CZM will pass through funds or encourage funding by the Department of
Environmental Management or Public Access Board to acquire new recreation
sites of highest quality in areas with highest need. If, after consultation
with communities, it is determined a site can sustain intensive use, Land
and Water Conservation funding should be used for acquisition and develop-
ment. Conversely, if passive use of an area is more appropriate, the Self-
Help fund under Conservation Services should be used. Both funds are admin-
istered through the Executive Office of Environmental Affairs. Areas for
Preservation or Restoration will have unique characteristics and pristine
environments, and as such will be purchased where necessary with Self-Help
funds in order to allow citizens to enjoy passive recreation opportunities.
Priorities for active recreation in areas of high need (as previously des-
cribed) are:

1. Swimming and beach use: In swimming deficient regions, in dis-
bursing recreation funds, beaches for swimming will have highest
priority for acquisition since they generate the highest recrea-
tion use. Highest priority will be assigned to acquire sites of
small dispersed sandy beaches and beach easements.

2. Boating: Boat ramps will have highest priority for the expendi-
ture of state funds. State funds for dredging new mooring basins
should not be used to meet recreation boating needs except where
there are no other feasible alternatives for resolving conflicts
between recreational boating and commercial fishing; where a
region-wide boating public will be served; and where navigation
will be improved (see Ports and Harbors Policy (19)).

3. Fishing and shellfishing: Special easements, piers, landings,
access improvements associated with other recreation acquisitions,
or public improvements making full use of multiple use concepts
will have high priority.

4. Camping and hiking: Development of inland sites to provide near
shore camping in conjunction with transportation improvements will
have high priority. Easements for hikers and bicyclists to travel
* ~between existing/future inland sites and shoreline recreation
* ~~~~should also be acquired.

Policy 24
88

SITES CONSISTENT WITH POLICY 24

I. Local acquisition financially supported by state and/or state allocated
federal funds (CZM Act Section 315 Amendments providing acquisition funds,
BOR, Self Help):

1) Chariff Property, Rockport 17) Mann Hill Beach, Scituate
2) Knowlton Wharf and Field, Rockport 18) Cohasset Harbor Boat Ramp &
3) Halibut Point, Rockport Park Expansion, Cohasset
4) Long Wharf, Gloucester 19) Blackman's Point, Marshfield
5) Downtown Gloucester Visitor's Park, 20) Green Harbor, Marshfield
Gloucester 21) Saquish Beach, Plymouth
6) Danversport - expansion and improve- 22) Ah-de-na, Kingston
ment to Pope's Landing & adjacent 23) Ellisville Harbor, Plymouth
park 24) Access Points on Runnins River,
7) Kernwood Park, Salem Seekonk
8) Salem Harbor Islands, scenic & 25) Bicentennial Waterfront Park,
recreational easements Fall River
9) West Beach, Beverly 26) Land Adjacent to Assonet Bay,
10) Lynn Harbor Waterfront, Lynn Berkley-Freetown
11) Forest River, Salem 27) Washburn Island, Mashpee
12) Chelsea Naval Hospital Site, 28) Popponesset Bay Beaches, Mashpee
Chelsea 29) Barrier Beach, Brewster
13) Belle Isle Marsh, Winthrop 30) Lamberts Cove, West Tisbury
14) East Boston Waterfront, East 31) Tiah's Cove, Tisbury Great
Boston Pond, West Tisbury
15) Charlestown Naval Shipyard Park 32) Nantucket Water Access Points,
Expansion, Charlestown Nantucket
16) Dorchester Waterfront, Columbia
Point & Port Norfolk

II. State Acquisition:

1) Lynn Harbor Waterfront, Lynn 6) Boat Ramp on Lee River, Swansea,
2) Chelsea Naval Hospital, 7) Expanded State Owned Rest Area,
Chelsea Route 24, Freetown
3) Revere Beach Expansion, Revere 8) Limited trail access to Stony
4) Boston Harbor Islands Point Dike, Wareham
5) Access Points on Palmer River, 9) South Cape Beach, Mashpee
Swansea-Rehoboth 10) Elizabeth Islands, Dukes
County

III. Potential Federal Surplus Land:

1) Coast Guard Station, Plum Island
2) Air Force Land, Fourth Cliff, Scituate
3) Thacher Island, Rockport

*All these sites are discussed in the Coastal Atlas or have been
proposed for purchase.

Any sites not listed here but located in Areas for Preservation or Restoration
(Areas of Critical Environmental Concern) are also considered to be consistent
with Policy (24) (see Policy (2)).

Primary State Programs and Authorities

Acquisition and Eminent Domain Powers of Public Access Board,
DEM, MDC
Self-Help Fund, Conservation Services

Primary Federal Consistency/Funding Sources

Coastal Zone Management Act Amendments, 1976, (Section 315)
Land and Water Conservation Fund (P.L. 88-578)
HUD Community Development Block Grants
Economic Development Administration Grants

Policy 25

Encourage energy conservation and the use of
alternative sources such as solar and wind power
in order to assist in meeting the energy needs
of the Commonwealth.

As noted in Policy (9), CZM strongly endorses efforts to conserve
energy and to develop alternative sources of power. To this end, CZM
will cooperate with the Massachusetts Energy Policy Office in implementing
the Commonwealth's comprehensive energy conservation program, insofar as
it relates to state activities within the coastal zone. In addition, CZM
will support alternative energy source demonstration projects that may be
proposed for location in the coastal zone, and will assist in locating
appropriate sites and evaluating feasibility studies as appropriate.

Primary State Programs

-Massachusetts Energy Policy Office

Primary Federal- Programs

Office of Energy Research, DOE

90 Policy 24 & 25

Polscicy 26*

Ensure that state and federally funded trans-
portation and wastewater projects primarily
serve existing developed areas, assigning
highest priority to projects which meet the
needs of urban and community development centers.

This policy will focus federal and state investment into existing
developed areas or adjacent areas suitable for development to promote
development there consistent with the Commonwealth's Statewide Growth
Policy. The two types of public investment covered by this policy, state
and federally fun-ded sewage treatment and collection facilities and
transportation improvements, are dealt with separately below.

IM,~PLEMENTATION

Transportation Improvements

The state's transportation network in the coastal zone is relatively
complete as compared with sewage treatment facilities. Therefore, CZM's
involvement in transportation planning, except as enumerated in the
Recreation section of this chapter is expected to be more limited. However,
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.

Coordination between the Executive Office of Environmental Affairs
and the Executive Office of Transportation and Construction will be
achieved by means of the following procedures:

a) Implementation of Policy (26) through the process of systems
planning.

CZM will actively participate with the Bureau of Transportation
Planning and Development and with Regional Planning Agencies in the systems
planning process in which alternative transportation improvements for a
particular corridor are evaluated for consistency with other regional
planning efforts.+ Evaluation of effects on land use and growth which
may result from proposed transportation activities in an integral part of
this process and must be reflected in the selection of recommended improve-
ments. CZM will also make an explicit effort to ensure that its concerns
for providing incentives for focusing growth to existing developed areas
are considered in the formulation of regional Annual Unified Work Programs.

+Note: In the case of highway projects, the systems planning phase is
the Corridor Planning Studies phase.0

*Federal Consistency applies Policy 26
91

K_-

CZM will review through the systems planning process all major
transportation projects for consistency with the above policy. If federal
funds are involved, this review will constitute CZM's federal consistency
review with respect to Policy (26). Major transportation projects are
defined for purposes of this policy as those system projects having a
total estimated construction cost of at least five million dollars and
involving the construction of new capital facilities which:

1. Provide new access to an area by means of an entirely new
right of way.

2. Increase the design capacity of a major transportation system
more than 50% beyond its previously existing design capacityZ
or

3. Introduce a new transportation mode adding to the capacity
of an area's total transportation system by more than 50%.

Consistency of major projects with Policy 26 will be judged on the
basis of anticipated changes in land development which may result from
changes in transportation accessibility, particularly where development
would be stimulated in rural, unserviced, or open space lands, or lands
with environmental constraints. Proj ects will be evaluated for "consistency
with the objectives and findings of other planning efforts in the region"
consistent with BTP&D's Corridor Planning Studies process for highway
projects or systems planning process for non-highway projects.

Where a proposed major project does not require a federal consistency
determination because no federal funds are involved, the Secretaries of
EOEA and EOTC will collaborate in resolving any inconsistencies with
Policy 26. If the inconsistencies cannot be resolved, the proposal will
be brought before the state's Development Cabinet (composed of the
Secretaries of EOEA, EOTC, Executive Office of Consumer Affairs, and
Executive Office of Economic Affairs, Director of OSP, Commissioner of DCA,
and a representative of the Governor) to determine how state prinrtins~c Fo
meeting transportation needs and Protecting the environment can best be
reconciled with respect to the particular project. If resolution cannot be
reached at this level, the Secretaries of EOEA and ROTC will then bring the
issue to the Governor for similar review.

A number of major projects are now proposed for construction within
the boundary of the coastal zone. Since the CZN plan, as noted above,
provides that CZM review of transportation projects for consistency
with Policy 26 will take place in the systems planning stage, CZM will
not be undertaking a formal consistency review under Policy 26 for major
pending projects which have proceeded past the systems planning stage.
CZM has concluded that all major transportation projects now past the
systems planning stage will serve existing development and thus are
consistent with Policy 26. Major projects included in this category
are:

--Route 25 Extension around Buttermilk Bay
--Revere Beach Connector
--Peabody/Salem Connector
--Northern Section of the Central Artery

Policy 26
92

PROP OSED
MAJ OR
TRANSPORTATION
FT ~~~IMPROVEMENTS

1. Route 25 Extension
w ~ ~~~~2. Revere Beach Connector
3. Peabody-Salem Connector
4. Central Artery
5. Blue Line Extension

25, f P. WDD S'

A.'r~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~*T~bIT

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

COASTAL ZONE MANAGEMENT PROGRAM

( 'N
Two other major projects - Extension of the Blue Line to Lynn and
the Central and Southern Sections of the Central Artery have not yet
advanced beyond the CPS phase of planning, but will be deemed consistent
O ~with Policy 26 by CZM because they service already developed areas.

b) Implementation of other CZM policies through the processes
of A-95, NEPA and MEPA.

EOTC and its constituent agencies will consult with CZM as to the
measures which must be taken by the transportation agencies to minimize
damage to the environment resulting from the impact of transportation
improvements on the unique characteristics of the coastal zone. In
particular, CZM will review both major and non-major projects for con-
sistency with other policies of the CZM plan which may be applicable.
As with (a) above, if federal funds are involved, such review will constitute
CZM's federal consistency review. Such review will focus on the following:

--assessment of the routing and-design of proposed facilities
relative to marine resources and potential impacts (see
Policies 1, 2, and 4)

--assessment of the routing and design of proposed facilities
relative to flood and erosion hazard concerns (see Policy
15)

--assessment of impacts on historic districts or sites (see
Policy 12)

--assessment of impacts on public recreation beaches (see
Policy 13).

Consistency will be required for these six policies. CZM will also
play an advisory role in relation to Policies 18, 21 and 23 whereby
recommendations will be made to mitigate adverse visual impacts and
improve access to recreation facilities, and provide trail linkups and
access to recreational sites in conjunction with transportation improvements.

CZM will be informed of requests for federal funding for transportation
through the A-95 process and will participate actively in the development
of Environmental Impact Statements under the National Environmental
Policy Act and Environmental Impact Reports under the Massachusetts
Environmental Policy Act.

Since major transportation projects typically a-re developed over
many years in a number of discrete stages, CZM will develop with the
transportation agencies a framework for CZM review and comment which
in many cases will provide for CZM evaluation before the, stage at which
federal consistency requirements are applicable. The goals of such
early review will be to assure that special coastal zone considerations
are taken into account at the earliest possible time, and also to permit
the transportation agencies to engage in others preliminary work with
the knowledge that the proposed project will be consistent with the CZM plan.
Thus, land use issues will be reviewed in connection with the Corridor Plan-
ning process and issues related to other CZM policies will be reviewed in
connection with the EIS whenever possible. Further clarification of this
rnrocess is ivrovided in the Memoranda of Understanding in Appendix B.

Q J2
Policy 26
94

c) State and Federal Permits

As with other development activities, transportation projects must comn-
ply with federal and state permit procedures. Where a project requires a
federal permit, GZM may waive federal consistency determination if it has
already deemed the project to be consistent with CZM policies pertinent to
the federal permit.

IMPLEMENTATION R

Sewage Treatment Facilities and Collection Systems

CZM will coordinate with federal, state, regional and local entities
responsible for waste treatment facilities planning, construction and
permitting to ensure that the location and design of treatment plants and
sewage collection facilities encourage the consolidation of growth in
existing developed areas. The Sewer Service Areas map on the next page will
be used as a policy guide in deteririning future state and federal investments
in waste treatment facilities in the coastal zone. CZM priorities are
summarized below.

--Accord highest priority to 201 projects in existing
urban areas or community-centers where water quality
problems merit rehabilitation or new construction
of treatment and collection facilities.

--Accord next highest priority to projects proposed for
contiguous developed areas, which are as yet unsewered,
but whose water quality problems merit implementation
of structural solutions.

--Accord lowest priority to projects proposed for undeveloped
areas. Public investment in wastewater. facilities will be
allowed only when there is a documented public health problem
requiring resolution through structural measures. System
design will be carefully evaluated as indicated below
particularly in coastal wetlands and within
floodplains. Unsewered private development within any of
these areas must meet all environmental regulations of the
Commonwealth (Policy 10) and b6 consistent with other
applicable CZM policies. It is anticipated that unsewered
areas will not be developed at a density greater than
four units/acre.

These priorit ies basically parallel the priorities currently used to
formulate the state's section 106 Priority List. Sewage collection
systems designed to serve newly developed areas or designed with excess
capacity greater than one third of the population in existence in 1972
are ineligible for funding.

For purposes of consistency with the coastal zone program, projects
that have advanced beyond the Facility Planning Phase (step 1) are deemed
to be consistent with the program. Projects for which Step I plans and
Step II (design) applications have not been completed at the time of the
CZM program approval will be reviewed through A-95 (and MEPA and NEPA if
applicable) for conformance to all applicable CZM policies when their
Step I plans are submitted for approval. Such review will focus on the
following:

Policy 26
95

1. The location of the outfall and/or method of treatment relative
to marine resources (see Policies (1), (2), (3)).

2. The location and design of proposed facilities relative to
flood and erosion hazards (see also Policy (15)).

3. Whether groundwater quality and quantity will be adversely
affected.

4. Whether sources of pollution have been adequately researched
and documented, and whether alternative solutions have
been adequately considered.

5. The location, design, and capacity of proposed facilities
relative to secondary impacts and growth inducement including
assessment of:

the extent and characteristics of areas that will
be opened up for development that were previously
constrained by soil limitations on subsurface disposal

* compatibility with local zoning and density patterns.

6. Potential impacts on historic districts or sites (see Policy
(12)).

7. Potential impacts on public recreation beaches (see also
Policy (13)).

In addition to review through A-95, consistency with Policy 26 will
be facilitated through review by the Secretary's Office
of the state's annual "106" priority list, since the state funds 15%
of construction grant awards and the Secretary is empowered with final
approval authority. Furthermore, CZM will continue to review 208 areawide
plan sewer service area delineations and five year priority lists for
conformance to Policy 26. (201 projects must be consistent with
approved 208 plans).

Primary State Programs

Executive Office of Transportation and Construction,
DPW, MBTA
Division of Water Pollution Control
208 Planning (DEQE)

Primary Federal Consistency

EPA - 201 Construction Grants, 208 Areawide Programs
DOT - UMTA, FHWA

9OlCy Zo
96

SEWER SERVICE AREAS

Existing

Potential

H A S S A C� H � u s E r s� CZM Boundary

~,..::..- ~:=%.._. .- w.

NANTVCKET SOUND

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
COASTAL ZONE MANAGEMENT PROGRAM

* ~~Policy 27

Encourage the revitalization and enhancement of
existing development centers in the coastal zone
through technical assistance and federal and state
financial support for residential, commercial
and industrial development.

INPLEMENTATION

Most federal and state programs which provide subsidies for housing
development or financial support for commercial and industrial investments
are already directed at providing assistance to urban areas and as such
serve to stimulate development there. Criteria for the allocation of
funds authorized by these programs a-re well established. CZM, along
with OSP and DCA, can act as an advocate for Massachusetts coastal towns
in the solicitation of federal and state funds, where the funds are to
be used consistently with CZM program policies. CZM will be particularly
active in this advocacy role in those situations where the proposed
uses of funds will:

1. enhance community and regional character by providing for
the rehabilitation or adaptive reuse of older structures with-
in existing urban and community development centers.

2. maximize use of existing or upgraded infrastructure investments
consistent with the previous policy.

3. not pre-empt the use of waterfront land for maritime dependent
activities (see Ports and Harbors Policy (7)).

In addition, there are a number of local zoning tools (e.g., cluster
zoning, phased growth, and transfer development rights), which can be
used to promote growth of existing centers, preserve open space, and
prevent sprawl development. CZM's Technical Assistance legal staff,
in concert with the Office of Local Assistance of DCA will be available
on request to assist communities who want to utilize these tools in local
land use management.

Finally, CZM staff within EOEA will be available to cooperate with
private developers proposing major developments in the c-oastal zone who
request information on applicable EOEA programs and permitting requirements
or assistance in examining alternative development options for consistency
to the CZM program.

Primary State Authorities and Proarams

Is ~~~Zoning Enabling Act (Ch. 808, Acts of 1975)
Subdivision Control (MGLA Ch. 4)
Office of Local Assistance (DCA)
Office of State Planning
Massachusetts Growth Policv Develonmpnt Apti (C'h- 907- Ar'q tnf
Policy 27
98

Primary Federal Funding Sources

Department of Housing and Urban Development
Housing and Community Development Act
Economic Development Administration

99 Policy 27

CHAPTER 5

HOW THE PROGRAM AFFECTS DEVELOPMENT ACTIVITIES WITHIN
THE COASTAL ZONE BOUNhDARY

The Massachusetts Coastal Zone Management Program does not include
new laws or increase the present number of state or local permits
required for development activities. Rather, the program seeks to
improve the administration of existing laws, which when effectively and
cons~istently administered in coordination "ith applicable public fund-
ing and investment programs, will provide for optimal use of Massachusetts
coastal resources. Because the program is based on existing regulatory
laws, development activities will basically be subject to the same loca-
tional constraints which apply now.

Essentially this means that:

(a) general development is encouraged to locate in already
developed areas or in areas contiguous to them by focusing
public investments in these areas,

(b) development in restricted wetlands is limited to certain
permissible uses such as catwalks, piers, boathouses, etc.,

(c) development in unrestricted wetlands is subject to conditions
necessary to provide compliance with the Wetlands Protection
Act,
(d) development in water areas below mean high tide is subject
to compliance with provisions of the Ocean Sanctuary Acts,
if applicable, Tidelands licensing, and the Wetlands Acts,

(e) development in upland areas is subject to the conditions of
the State Environmental Code, when sewers are not available,

(f) development near public recreation beaches or desig-
nated historic sites which requires a MEPA review in conjunc-
tion with a state permit is conditioned to minimize adverse
impacts at the historic or recreation site,

(g) maritime-dependent development is given priority over non-
maritime development in designated port areas, if a tidelands
license for dredging, filling or bulkheading, or other con-
struction below mean high water is required.

Development will not otherwise be affected provided existing federal,
state and local requirements are met. Energy facilities, for example,
will need to obtain approval from the Energy Facilities Siting Council.
IWhether an area otherwise meeting the above conditions is used for single
family homes, high rise apartments, commerce or industry will continue to
be decided by local governments. Although the program points out other
concerns associated with development pressures present in the coastal
zone - competition among land and water uses, loss of community character
and visual degradation - the state will use a range of incentive devices

100

rather than regulatory powers to address them. General development is
encouraged to locate in existing developed areas and adjacent lands by
directing federal and state investment in sewage treatment facilities and
transportation services to these areas. State sewering priorities
already follow this policy, and proposed transportation projects will
be reviewed for consistency with this policy.

To further facilitate understanding of how the program applies to
specific geographic areas within the coastal zone boundary, the follow-
ing discussion outlines how the policies relate to the use of coastal
resources, beginning with open ocean waters and proceeding inland to
the coastal zone boundary.

1. Open Ocean Waters

Open ocean waters include waters other than estuaries and coastal
embayments. The open ocean provides opportunities for the harvest of
living marine resources and mineral resources, recreation, and water
transportation.

High priority uses of the- ocean are commercial fishing, shipping
and water sports, marine transportation and national defense activities.
Uses which are conditioned are dredging, dredged material disposal, and
mineral and energy resource extraction.

2. Coastal Wetlands

Coastal wetlands are salt marshes, barrier beaches, shellfish beds,
dunes, beaches and salt ponds.

These are natural features whose role in the environment is vital
to the continued health, productivity, and functioning of coastal eco-
systems, and whose values can be destroyed by physical alteration.
Massachusetts has two laws relating to the management of coastal wet-
lands, and therefore two programs of resource management.

(a) Areas Subject to the Wetlands Restriction Act: Under the
authority of the Wetlands Restriction Act, about 30,000 acres
(mostly salt marshes) have been restricted. This acreage
represents about 40 percent of the state's coastal wetlands.
Generally, priority uses of these areas are limited to con-
servation, outdoor recreation, shellfish harvesting, and other
non-intensive uses. Other permissible uses include underground
energy transportation lines, and certain other utility lines,
maintenance of existing roads and'boat channels and the con-
struction of wharves, piers, boats, shelters, floats and cat-
walks. Maintenance dredging is also permitted. All other uses
are prohibited. With the availability of federal CZM funds to
support the restriction program, the remainder of the Common-
wealth's significant wetlands are to be similarly restricted.
The Wetlands Protection Act also applies to areas which have
been restricted, but the Order of Conditions can not allow any
uses which are not permitted under the restri ction order.

(b) Areas not Subject to the Wetlands Restriction Act: These are
the remainder of coastal wetlands which have not been restricted

101

under the Wetlands Restriction Act. The Commonwealth plans to
place some of these areas under restrictions in the future. It
is important to note that until such areas are restricted no
uses will be evaluated on a case by case basis. Development in
these wetlands is subject to conditions under the Wetlands Pro-
tection Act. This Act permits any use provided that the follow-
ing specified interests are protected:

--land containing shellfish,
--fisheries,
--prevention of pollution,
--storm damage prevention,
--flood control,
--ground water supply, and
--public or private water supply.

The jurisdiction 'if this Act extends to 100 feet inland of the 100
year floodplain and includes areas subject to erosion, since these coin-
cide with exposed beaches, dunes, and barrier beaches.

Additionally, construction in water bodies such as embayments and
estuaries is to be managed on a case by case basis through the Waterways
Program and by the Division of Marine Fisheries to protect anadromous
fish runs, and to minimize adverse effects on circulation, sediment trans-
port and water quality.

In the remainder of the area between the significant natural features
and 100 feet inland of the 100 year floodline, all uses are permitted pro-
vided they do not significantly impact a wetland area. Public works pro-
jects which encourage development in hazardous areas are considered low
priority, as are structural protection measures unless warranted by over-
riding public interests.

3. Designated Port and Developed Harbors

These are areas where economic or recreation development is impor-
tant to the economy of the region or the Commonwealth and where capabil-
ities exist to support coastally dependent development. In these areas
development of maritime-dependent and waterfront related use are given
high priority. The program encourages land and water development that
increases the use and growth of port and harbor facilities. CZM's port
and harbor policies (7) and (19) apply only when state or federal per-
mitting or funding is required for dredging, bulkheading, or pier
construction.

High priority uses in designated ports are commercial fishing opera-
ations, maritime shipping and marine industry, including energy facilities as
indicated in Policy (7). Other uses are permitted provided they do not conflict
with these priority uses. Recreational boating, tourist facilities, and
water-related activities are considered priority uses in developed harbors.
New dredging and filling outside of these areas are low priorities.

. ~4. Recreation Areas

These are recreational areas unique to the coastal zone, such as
beaches, boat facilities, related trails and campgrounds.

102

These areas are managed primarily through government funding for
maintenance, improvements and acquisition. However, policies also focus
on increasing non-auto coastal access. Additionally, the policies pre-
sume a public right to recreation; therefore, developments whibh jeopar-
dize existing public recreation beach facilities shall be reviewed
under the Massachusetts Environmental Policy Act and conditioned or
denied as appropriate in order to minimize' impacts.

5. Upland Areas with Development Constraints

These are areas with impermeable or wet soils, steep slopes, or bed-
rock near the surface. Unless public sewers are provided to overcome the
constraints these factors impose on the use of subsurface disposal sys-
tems, development will be constrained by the existing State Environmental
Code, which establishes minimum requirements for such systems. In the
absence of sewers, the Code will generally restrict permissible uses in
these areas to moderate to low density residential, open space, recrea-
tion or other uses not requiring subsurface disposal. Permissibility is
determined on a case by case basis because of the variability of soil and
geologic conditions from site to site. If areas are sewered, they can be
developed consistent with the policies for the remainder of the coastal
zone.

6. Remainder of the Coastal Zone

The remainder of the coastal zone includes developed areas or areas
with soils suitable for development and lies inland of the 100 year
coastal floodplain. The limited interests which apply throughout the
coastal zone will affect development in these areas. The five interests0

(a) Accommodate Energy Facilities: Because certain types of energy
production, storage and distribution facilities are dependent
on waterfront siting and because these facilities usually have
impacts affecting the coastal zone, the state program has
insured that these uses can be accommodated by using the
authority of the Energy Facilities Siting Council. The program
specifies that alternative inland sites must be considered for
non-coastal dependent facilities.

(b) Protect Public Recreation and Historic Sites: Because of their
public recreation, cultural and historic value, these sites or
districts must be protected from conflicts caused by nearby
uses or-activities which would degrade their quality. The
Massachusetts Environmental Policy, Act and the federal procedures
for protection of historic districts will be the principal man-
agement measures used to minimize such conflicts.

(c) Focus State and Federal Wastewater Treatment and Transportation Pro-
jects into Developed or Contiguous Areas: The state will en-
courage development in already developed areas and adjacent
lands by giving priority for transportation and wastewater treatment
facilities funding in these areas. Development can occur at any
density deemed appropriate by local governments providing0
existing state laws are met. For example, the coastal management
ment program does not constrain local governments in determining
if high rise apartments and hotels or single family homes would

103 -

be most appropriate so long as applicable state permits can be
obtained. Experience indicates that areas not receiving major
public support investments generally will be developed at low
densities.

(d) Protect Air and Water Quality in All Parts of the Coastal Zone:
Activities which emit pollutants that significantly affect
ambient air and water quality can cause significant impacts on
coastal waters regardless of their location and will be
required to follow existing state and federal laws.

(e) Provide Open Space and Recreation: The remaining state concern
in this area is the provision of open space and recreation sites.
The acquisition priorities are incorporated into the coastal
management program and are carried out through eminent domain
powers of the state Public Access Board.

The above five interests (a-e) represent the state's concerns and
policy in the remainder of the coastal zone. The resolution of issues
involving protection of community character or preference for zoning type
and general land use will remain the responsibility of local government.

104

0 ~~~~~~~~~~~CHAPTER 6

MANAGING THE COAST: KEY STATE AGENCIES

The vast majority of decisions about what can and cannot occur in
the coastal zone will still be made by local governments. Decisions of
statewide significance will be made in the Executive Office of Environ-
mental Affairs with the exception of decisions about the location of
energy facilities which will be made by the Energy Facilities Siting
Council (EFSC) using the Coastal Zone Program for guidance. The state
recognizes that while many of these agencies have been operating within
the coastal zone, this program is the first to coordinate activities
among agencies.
This Chapter describes only the key agencies responsible for
implementation. Chart 6.5 lists the primary authorities that will be
used to implement each policy presented in Chapter 4. Chart 6.6 sum-
marizes the substance of each authority and the status of related agency
regulations and guidelines.

6.1 THE OFFICE OF THE SECRETARY WITHIN THE EXECUTIVE OFFICE OF ENVIRON-
MENTAL AFFAIRS

The Executive Of fice of Environmental Af fairs (EOEA) is the desig-
nated lead agency for Section 306 implementation of the Massachusetts
Coastal Zone Management Program. Created out of forty-three existing
state agencies, EOEA together with its various departments and divisions
is charged to carry out the state environmental policy. The Coastal Zone
Management Program represents the first major attempt by the EOEA and its
line agencies to conduct a comprehensive resource management program
using the administrative structure and authorities provided by the 1969
reorganization of Massachusetts state government. Through regulations to
be promulgated by the Secretary of Environmental Affairs and memoranda
of understanding between the Secretary of Environmental Affairs and the
various state agencies involved, the Program will be implemented as state
environmental policy. Designation of areas of critical environmental con-
concern, resolutions of conflicts among EOEA agencies, periodic performance
evaluations and fiscal controls are the primary measures that will be
specifically utilized by the Secretary to implement the program. Within
the Executive Office of the Secretary the two major offices involved in
the program are:

1) The Office of Coastal Zone Management, which will continue to
advise the Secretary on planning and policy formulation for the
coastal zone as well as aid in performance evaluation. In addi-
tion, the Office will undertake in-depth technical studies of
key coastal issues, promote development consistent with coastal
policies, provide technical assistance to local communities, and
provide in-service training, technical assistance, clarification
of policies, coordination and financial assistance to EOEA agen-
cies in order to enable them to effectively implement the Program.
The Office will become involved in the routine activities of
is agencies in only four ways:

105

EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

OFFICE OF THE SECRETARY

ICoastal Zone Management IConservation Servicesl IEnvi ronmental Impact Reviewl ILaw Enforcement|
'Department of Environmental Department of Environ-I Metropolitan District Department of Fisheries ,Department of
Quality Engineering mental Management Commission Wildlife and Recreational Food and Agri-
.':1~~~~~~~~ IL|~~ |Vehicles culture
*~~~~~~~~~~ I I I I
Division of Air and |Acquisition and Con- Construction Fisheries and Wildlife Anima Health
Hazardous Materials struction CEngineering A
III Division of Water Supply "Forest and Parks I|Parks I IMarine Fisheries j|Dairying and
II~~~~~ Il~~~~~ I~ ~ ||I~ IAnimal Husbandry
I ~~~~~~~~~~~~~~~~~I

Division of Land and Solid Waste Disposal |Police Marine and Recreational Fairs i
Water Use * l l l j Vehicles I I

Division of Laboratories |WFlater Resources j|Sewerage I I Accs BoardLand Use
>~~~~~~~~~~~~~~~ j Water I Markets
Il Division of Outdoor I p .

I jCommission
~~~~~~~~~~~~~~~~~~~~~~~~~~lIaivryiing aMkCntrld

| Hazardous Waste Boardissl
Plant Pest
Division of Water PColntrol
Pollution Control |I'
Reclamation
1 Water Resources Commission Board

II
Ili~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

* Includes Wetlands, Waterways, and Mineral Resources Programs

(1) continuing its present role in reviewing actions through
MEPA, NEPA, and A-95 reviews;

(2) reviewing all federal agency determinations of consistency
with the state program;

(3) serving as an expert witness at formal hearings conducted
by any EOEA agency on coastal actions, or bringing cases
to a hearing; and

(4) ensuring that EOEA agencies relay notices of pending man-
agement decisions in the coastal zone to allow adequate
time for local governments to comment.

2) The Environmental Impact Review Section evaluates and monitors
state environmental impact statements required by the
Massachusetts Environmental Policy Act (MEPA). MEPA established
an environmental review process for state actions, projects with
state funding contributions, or projects requiring permits or
licenses from state agencies. As an information device, MEPA
attempts to provide full disclosure of the environmental conse-
quences of state related activities. The MEPA staff also
reviews and comments on appropriate federal projects filed
under the National Environmental Policy Act (NEPA). MEPA pub-
lishes the Environmental Monitor, which is a key mechanism for
informing citizens and other government agencies of projects in
the coastal zone, of federal consistency decisions, MEPA actions,
hearings, etc. The MEPA statutes also direct all agencies of the
Commonwealth to "review, evaluate, and determine the impact on
the natural environment of all works, projects, or activities
conducted by them" and to "use all practicable means and measures
to minimize damage to the environment." The MEPA statute further
provides, "unless a clear contrary interest is manifested, all
statutes shall be interpreted and administered so as to minimize
and prevent damage to the environment." This legislative charge
makes possible the closer scrutiny and regulation of projects or
activities under such EOEA programs as the Wetlands and Waterways
Programs, thereby ensuring that the environmental concerns in CZM
policies are addressed. (See Appendix I for discussion of recent
MEPA amendments.)

The Executive Office, itself, will be responsible for designation of
Areas nf Critical Environmental Concern as provided for in MGLA, Ch. 21A,
S. 2(7). This designation, as noted in Policy (2), will be the basic
procedural mechanism for designating Areas for Preservation or Restoration
in the coastal zone, a process required by the federal Coastal Zone Man-
agement Act, and as such, the two designations are synonymous. The basic
effect of designation as an Area of Critical Environmental Concern/Area for
Preservation or Restoration is to negate all exemptions to filing under
the Massachusetts Environmental Policy Act, thereby ensuring that any pro-
ject proposed for the area is fully reviewed in the interest of protecting
the conservation, recreational, ecological, or esthetic values of the area.
Other state agencies will act consistently with the designation as indi-
cated in Chapter 4.

107

As specified in the draft of the Secretary's 21A regulations, nomin-
ations of areas may be made by ten citizens, by towns or conservation
commissions, by state agencies, RPA's or members of the Legislature. i
Consistent with this procedure, the CZM Program has identified ten areas
in the Massachusetts coastal zone which will be nominated for ACEC/APR
designation. The characteristics of these areas are fully described in
the Coastal Atlas.

In order for an area to be designated anACEC/APR it must first com-
prise several significant natural resources, such as salt marshes, barrier
beaches and dunes, and meet the standards for designation described in the
draft regulation. The standards relate to the following:

1. Public Health
2. Quality of the Area
3. Productivity
4. Uniqueness of Area
5. Irreversibility of Impact
6. Imminence of Threat to the Resource
7. Economic Benefits
8. Other Supporting Factors

If the Secretary decides to proceed with a designation, public notice
is given for a hearing to be held within twenty-five miles of the nominated
areas. Members of the public may make known their views concerning the
proposed designation either at the hearing or by letter to the Secretary.

6.2 DEPARTMENTS WITHIN THE EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS

The Coastal Zone Management structure is essentially one where the
line EOEA agencies will have the primary responsibility for the implemen-
tation of CZM policies. This will be accomplished via a Memorandum of
Understanding with the Secretary and appropriate agencies agreeing to
jointly implement the CZM Program with the Executive Office of Environ-
mental Affairs and other EOEA agencies, via the regulations promulgated
by the Executive Office adopting the plan as a statement of the state
Environmental Policy, and via the development and promulgation of new
regulations or changes in existing regulations, if necessary, which
govern the regulatory functions of affected implementing agencies.
Memoranda of Understanding have already been signed between the Secretary
and five Commissioners setting forth the fundamentals of the interagency
agreement.

The Secretary of Environmental Affairs has promulgated a 21A regu-
lation adopting the CZM plan as a statement of state environmental policy.
Draft regulations have been completed for five major programs and will be
implemented according to the time schedule in the "Status of Statutory
Authorities" Chart (Ch-6.6). These five programs include:

Wetlands Protection Program Energy Facilities Siting Council
Waterways Program Division of Water Pollution
Ocean Sanctuaries Control

An outline of aproposed regulation for the Division of Mineral
Resources to govern offshore sand and gravel raining has also been com-
pleted. Each of these regulations will undergo formal public hearings
as established by the state Administrative Procedures Act prior to
promulgation.

108

Department of Environmental Quality Engineering (DEQE)

The Division of Land and Water Use is particularly important in
implementing the CZM Program in that it administers the Wetlands Protec-
tion Act, the Waterways Program and the Community Sanitation Program. In
the case of the Wetlands Protection Act, the Division is involved in set-
ting the regulations and reviewing the local conservation commission's
order of conditions, either on appeal or if invoked by the Commissioner.
Within the same Division, the Waterways Program issues licenses for f ill-
ing, wharf construction, bridges and pipelines over tidelands, harbors and
certain rivers below the high water mark. The Waterways Program also funds
such activities as wharf improvement, public piers, jetties, bulkheads,
shore protection works, channel dredging and maintenance, dams and wreck
removals as well as development of harbor plans and funding of their imple-
mentation. The Community Sanitation Program, also within this Division,
regulates the siting, placement and design of sub-surface sewage disposal
with a capacity of 15,000 gallons per day or more (i.e., septic tanks,
leaching fields, cesspools, etc.), the location of sewage disposal sites,
sewage treatment plant sites, mobile home parks (siting and lot size and
adeq~uacy of waste disposal facilities), and the siting and design of solid
waste disposal facilities (including sanitary landfills). Sub-surface dis-
posal systems with a capacity of less than 15,000 gallons per day are
regulated by local boards of health to ensure compliance with the State
Environmental Code.

The Division of Air and Hazardous Materials in DEQE is responsible
for ensuring that sources of air pollution do not contravene state and
federal emission limitations, and for assuring conformance with estab-
lished state and federal ambient air quality standards.
The Division of Water Pollution Control in DEQE has permitting authority
(jointly with EPA) over point source pollution, including municipal sewage
treatment works. The Division also awards grants for the construction of
sewage treatment and collection systems and issues water quality certificates
for actions requiring federal permits.
The Division of Mineral Resources in DEQE licenses exploration
and extraction of mineral resources in coastal waters.

The Public Access Board (Department of Fisheries, Wildlife and Rec-
reational Vehicles) is charged with acquiring and developing public access
points to great ponds or other waters and trails and paths for hiking and
other recreational activities. The Board's acquisition, construction and
maintenance program is funded by the gasoline fee on watercraft and regis-
tration fees from recreational and snow travelling vehicles.

The Department of Environmental Management (DEM) administers several
key coastal authorities, including the Wetlands Restriction Programs and
the Scenic Rivers Programs. DEM also has the responsibility to enforce
ocean sanctuaries laws and to acquire recreational land outside of the
metropolitan park district.

6.3 AGENCIES OUTSIDE OF EOEA

0 ~ ~~The Energy Facilities Siting Council (EFSC) has jurisdiction over
determining the need for and the siting of electric generating, gas,
and oil facilities. The Council is composed of the heads of four state

109

cabinet level departments (Consumer Affairs, Environmental Affairs, Admin-
istration and Finance, and Manpower Affairs), and five other individuals
appointed by the Governor. The energy facility siting decision process of
the Council is described in Chapter 4 (Policy 8) and Chapter 9of this document.

The Martha's Vineyard Commission will implement portions of the pro-
gram on Martha's Vineyard. The Massachusetts CZM Program supports the
regulation of coastal activities on Martha's Vineyard by the Commission,
since the MVC's regulating guidelines have been approved by the state and
when an action needs both state and Commission approval, both agencies
must concur before action can proceed.

The Executive Office of Transportation and Construction oversees the
Department of Public Works, the Massachusetts Bay Transportation Authority,
the Massachusetts Port Authority, the Massachusetts Turnpike Authority and
the Regional Transit Authorities and will be responsible for ensuring that
its transportation programs are coordinated and conducted consistently with
the CZM Program.

6.4 Improved Agency Coordination

The basic role of EOEA, and particularly the Office of Coastal Zone
Management in that office, is one of coordinating the implementation of
the program with the various departments and divisions within EOEA, the
Energy Facility Siting Council, the Executive Office of Transportation
and Construction, and the Martha's Vineyard Commission. The basic
coordination mechanisms are summarized below.

A. Within EOEA
1. The Secretary's Regulations

Pursuant to Chapter 21A, the Secretary has promulgated regulations
adopting the program as~ state environmental policy in the coastal
zone. The Commissioners of the five departments within EOEA have
recognized this Authority in their memoranda of understanding with
the Secretary (see Appendix B). This regulation binds all EOEA
agencies (not all state agencies) to carry out the CZM plan in full,
in granting permits, in disbursing funds, or in conducting any other
kind of activity in the coastal zone. Two exceptions apply to this
rule. First, neither the program nor the regulations require EOEA
agencies to take actions not authorized by law, and, second, where
the Secretary has utilized the conflict resolution mechanism (see
below) and determined that a CZM policy should not be followed
because of a conflict with another program of EOEA.

2. Memoranda of Understanding within EOEA

The regulations operate to make the program legally binding upon the
five departments within EOEA. The memoranda of understanding, however,
ensure that the Secretary is not exceeding her authority under
Section 21A by recognizing the program as a statement of state
environmental policy and requesting the Secretary to jointly implement
the program. Furthermore, the memoranda spell out additional steps,
particularly the incorporation of rules and regulations promulgated
by the Secretary, and other regulatory measures which they will take
to implement the program.

110

3. Conflict Resolution

The Secretary of EOEA has the authority to resolve administrative
or jurisdictional conflicts between EOEA agencies (not all state
agencies). Any time a conflict arises, including a permit decision
by personnel of EOEA, a statement of issues may be prepared, a public
notice issued and formal proceedings held. The conflict resolution
mechanism will be employed, for example, where actions by. one agency
impinge upon the statutory responsibilities of another; or where
there are issues concerning how to fund or enforce certain programs.

4. Coordinative Functions of the Office of Coastal Zone Management

a. CZM will be notified of all proceedings conducted by EOEA
agencies within or affecting the coastal zone. CZM may
appear as an expert witness, may intervene as an interested
party, or otherwise submit its comments,

b. CZM shall have the right, where a right of appeal or hearing
exists for other interested parties or permit applicants, to
request an appeal or hearing of any action taken by an EOEA
agency regarding the coastal zone, unless otherwise
specifically forbidden.

c. A CZM coordinator shall be located in each of the key
implementing agencies to assist in applying the policies in the
agency's day to day responsibilities.

d. Performance evaluation: To insure that the program functions
efficiently, the Secretary, through the Office of Coastal Zone
Management, will periodically conduct performance evaluations.
Subject areas requiring the evaluations are outlined in
Section 8 of the Secretary' s Regulations (see Appendix G).

B. The Energy Facilities Siting Council

The 21A regulations adopted by the Secretary establish CZM policies
as the current health, environmental protection and resource use policies
of the Commonwealth, as recognized by a memorandum of understanding between
the EFSC and the Secretary of Environmental Affairs (see Appendix B).
Consequently, pursuant to the Energy Facilities Siting Council Act and
the Council regulations, the Council must find any long range forecast or
notice of intent as consistent with such policies prior to approval.
Further, the Council has agreed to adopt regulations and procedures which
will provide for:

(.)review and comment by EOEA on any forecast or application for
a Certificate of Environmental Impact or public review prior
to any hearing by the Council;

(2) cooperation in developing guidelines for data required of
* ~~~~~applicants prior to initial review of proposed facilities;

III

(3) evaluation of at least one alternative coastal site for coastally
dependent facilities -proposed for siting in the coastal zone and
evaluation of at least one inland site, as well as ohe alternative
coastal site for non-coastally dependent facilities;

(4) standing of the CZM program in EFSC proceedings on energy
facilities proposed to be sited in the coastal zone.

C. Martha's Vineyard Commission

Although no formal Memorandum of Understanding has been signed by the
Commission and the Secretary of Environmental Affairs, several types of
assurances exist that the Commission will act in a manner consistent with
the Program:

- Local governments can only perform activities in coastal areas
if such activities conform to regulations developed under guide-
lines established by the Commission. The guidelines have been
approved by the state and conform to CZM policies.

- The Commonwealth will continue to administer state authorities
on Martha's Vineyard.

- The Secretary of Environmental Affairs is the voting Cabinet
official appointed by the Governor to sit on the Commission.

- The state will grant the Commission funds to apply the coastal
policies to the island and will review coordination in this
procedure.

D. Executive Office of Transportation and Construction

The Memoranda of Understanding in Appendix B~and the procedures
outlined in Policy 26 detail how coordination in the review of major
transportation projects will be achieved between CZM and EOTC. With
respect to Policy 26, CZM will participate actively in the systems
planning stage of transportation planning to ensure that any inconsistencies
with the policy are ironed out early on and that undue delays in
advancing projects to construction are avoided. Consistency with other
applicable policies will be evaluated through A-95,review of EIS's,and
through the issuance of EOEA permits where required.

112

6.5 STATUTORY AUTHORITIES FOR EACH POLICY *

REGULATORY NON-REGULATORY

Executive
Permitting Funding/ Office
Licensing Other Acquisition Implementation
Policy Authorities Authorities Programs Authorities**

(1) Wetlands Protection Coastal Wetlands c. 21A, s. 2
Program (c. 131, Restriction Pro- (2,3,5,10)
s. 40) gram (c. 130,
Waterways Program s. 105);
(c. 91, C. 21A, Div. of Marine
s. 14) Fisheries (c. 130)
Energy Facilities Ocean Sanctuaries
Siting Council Acts (c. 132, ss.
(c. 164) 13-17)

(2) Wetlands Protection Inland & Coastal Public Access Designation of
Program (c. 131, Wetlands Restric- Board (c. 21, Areas of Critical
s. 40) tion Programs ss. 17-17A) Environmental
Energy Facilities (c. 131, s. 40A, Dept. of Env. Concern
Siting Council c. 130, s. 105) Management (c. 21A, s. 2(7))
(c. 164) Massachusetts (c.132A) (2,3,5,10)
Waterways Program Environmental Self-Help Pro-
(c. 91, c. 21A, Policy Act gram (c. 132A,
s. 14) (c. 30, ss. 61-62) s. 11)
Div. of Water Ocean Sanctuaries Div. of Fish-
Pollution Control Acts (c. 132A, eries &. Wild-
(c. 21, ss. 27, 43) ss. 13-17) life (Ch. 839,
Outdoor Advertising Div. of Marine Acts of 1971)
Board (c. 93, c. Fisheries (c.
93D) 130, s. 19)

(3) Div. of Water Pollu- Ocean Sanctuaries Div. of Water c. 21A, s. 2
tion Control (c. 21, Acts (c. 132A, Pollution Con- (2,10,13)
ss. 27, 43) ss. 13-17) trol (c. 21,
State Environmental s. 27)
Code (c. 111, s 17,
c. 21A, s. 13)
Marina Licenses
(c. 91, s. 59B)

(4) Wetlands Protection Div. of Marine c. 21A, s. 2
Program (c. 131, Fisheries (c. 130 (2,3,5,10)
s. 40) s. 19)
Waterways Program
(c. 91)

(5) Waterways Program c. 21A; s. 2
(c. 91; c. 21A, (2,5,10,14)
s. 14; c. 131, s. 40)
Water Quality
Certification(c.21,s.27)
Community Sanitation
Program (c. 21A, s. 13)

(6) Div. of Mineral Ocean Sanctuaries c. 21A, s. 2
Resources (c. 21, Acts (c. 132A, (2,5,10)
s. 54) ss. 13-17)
Waterways Program
(c. 91)

* This chart, like the lists of authorities following each policy, only lists the
primary authorities implementing each policy and is not intended to include every
program which might apply in every instance.
** Chapter 21A, Section 2(1) vests the authority to develop policies, plans, and pro-
grams in the Executive Office of Environmental Affairs. Subsection 2-28 provides
other management, administration, and advisory powers in EOEA.

113

REGULATORY NON-REGULATORY

Executive
Permitting Funding/ Office
Licensing Other Acquisition Implementation
Policy Authorities Authorities Programs Authorities**

(7) Waterways Program c. 21A, s. 2 (9)
( c. 91)

(8) Energy Facilities c. 21A, s. 2
Siting Council (9, 17)
(c. 164)

(9) Waterways Program Ocean Sanctuaries c. 21A, s. 2
a, c (c. 91) Acts (c. 132A, (9, 17)
Wetlands Protection ss. 13-17)
Program (c. 131, Wetlands Restric-
s. 40) tion Program
Division of Mineral (c. 130, s. 105)
Resources (c. 21,
s. 54)
Energy Facilities
Siting Council
(c. 164)

(10) Wetlands Protection Inland Wetlands c. 21A, s. 2
Program (c. 131, Restriction Pro- (2, 10, 13)
s. 40) gram (c. 131,
State Environmental s. 40A)
Code (c. 111, s. 17;
c. 21A, s. 13)
Air Quality Permits
(c. 111, ss. 142-E)
Air Implementation
Plan
Water Quality Permits
(c. 21, S. 43, NPDES)
Sewer Connections and
Extensions (c. 21,
s. 43)
Other Applicable
State Permits

(11) Scenic & Recrea- c. 21A, s. 2
tional Rivers (5,8,11,18,23)
Act (c. 21, s. 17A)
Control of Outdoor
Advertising (c. 93,
93D)

(12) MEPA (c. 30, ss. 61- c. 21A, s. 2
62) (2,9,11,15)
Historic District
Act (c. 40C)
Special Historic
District Acts

(13) MEPA (c. 30, ss. 61- c. 21A, s. 2
62) (2,9,10,11,15)

(14) Div. of Marine c. 21A, s. 2
Fisheries (c. 130 (3,5,9,22,23,27)
s. 17)

(15) Div. of Water c. 21A, s. 2
Pollution Control (7,9,10,13,16,21)
(c. 21, s. 27)
Dept. of Public
Works (c. 81)
MBTA (c. 161A

114

REGULATORY NON-REGULATORY

Executive
Permitting Funding/ Office
Licensing Other Acquisition Implementation
Policy Authorities Authorities Programs Authorities**

(16) Self-Help Fund c. 21A, s. 2
(c. 132A, s. 11) (9,10,11,15,16,18)

(17) Waterways Pro- c. 21A, s. 2
gram (c. 91, (2,5,7,9-11,25,27)
s. 11)

(18) c. 11A, s. 2
(11,16,18,27,28)

(19) Waterways Pro- c. 21A, s. 2
gram (c. 91, (9,14,23,25,27)
s. 11)

(20) Waterways Pro- C. 21A, s. 2
gram (c. 91, (2,9,11,14,23,27)
s. 11)

Public Access
Board (c. 21,
ss. 17-17A)

Self-Help Pro-
gram (c. 132A,
s. 11)

Dept. of Env. c. 21A, s. 2
Management (8, 9)
(c. 132A)

(21, 22, Dept. of Pub- c. 21A, s. 2
24) lic Works (8,9,11,15,16,18,
(c. 81) 23,25-27)
Mass. Bay
Transit Auth-
ority (c. 161A)
Public Access
Board (c. 21,
s. 17-17A)
Self-Help Fund
(c. 132A, s. 11)
DEM (c. 132A)
MDC (c. 92, ss.
33, 35)
DPW (Bikeways
Program)

(23) c. 21A, s. 2
(8,9,11,18,23)

(25) c. 21A, s. 2
(2,3,5,9,10,15,
17,21,23,27)

(26) Water Pollution c. 21A, s. 2
Control (c. 21, (9,10,13,16,18,
s. 27) 19,23,27)
Dept. of Public
Works (c. 81)
MBTA (c. 161A)

(27) c. 21A, s. 2
(16,23,25)

115

6.6 SUMMARY AND STATUS OF AUTHORITY

AUTHORITY STATUS OF AUTHORITIES

1. Coastal Wetlands Restriction Program (MGLA Ch. 130, Approximately 30,000 acres
S. 105) authorizes the Commissioner of the Department of presently restricted.
Environmental Management, after a public hearing, to re- No regulations, none
strict coastal wetland areas against most types of environ- planned. Restriction
mentally harmful development. Barrier beaches, dunes, salt marshes Orders are issued for
shellfish beds, and salt ponds in coastal Massachusetts will each community. A
be restricted under this program, except those in designated model Restriction Order
port areas, those under MDC control, or activities by the is contained in Policy 2
Department of Public Works, State Reclamation Board, or and will be followed by
mosquito control project operating under MGLA C. 252. DEM All of Cape
Approximately 40% of all eligible areas have been restricted Cod will be restrict-
to date. In general, filling, draining, or dredging of wet- ed by end of March,
lands, the discharge of hazardous substances, or any act that 1979.
would destroy natural vegetation, alter existing tidal flow,
or otherwise result in the alteration of the natural and
beneficial character of these areas, is prohibited. Permitted
uses include piers, wharves, duck blinds and so on, essential
energy transmission lines and upkeep of existing roads. Local
conservation commissions issue an "Order of Conditions" for
permitted uses. A model list of the permitted and prohibited
uses in restricted areas is provided in Policy 1. A landowner
can appeal to the Commissioner within 60 days after restriction
orders are proposed. Restriction orders are made on town by
town basis. A two-thirds vote of Massachusetts Legislature
can repeal a restriction Order.

2. Inland Wetlands Restriction Program (MGLA Ch. 131, S. 40A), See above.
also administered by the Commissioner of DEM, is similar
to the Coastal Wetlands Restriction Program except that it
applies to freshwater inlands.

3. Wetlands Protection Program (MGLA Ch. 131, S. 40) gives Current regulations in
local Conservation Commissions authority to review proposals place. New draft reg-
for projects in wetlands (including permitted use projects ulations to be submitted
in restricted wetlands). The purview of the Act extends to to OCZM before program
100 feet beyond either the 100 year floodplain or the land- approval. Wetlands
ward edge of a wetland, whichever distance is the greatest. Protection Program Review
All dredging, filling or other alteration in these areas is Board is mandated by
unlawful without filing a Notice of Intent, both with the Secretary & Commissioner
local Conservation Commission and the Commissioner of the to complete recommen-
Department of Environmental Quality Engineering. The dations on regulations
Conservation Commission issues an Order of Conditions in calendar year 1977.
either conditioning or prohibiting the activity based on Final regulations to
the probable impact on the seven interests of the Wetlands be promulgated by 6/78
Protection Act--public and private water supply, flood
control, storm damage prevention, prevention of pollution,
protection of land containing shellfish, or the protection
of fisheries. An Order of Conditions may be appealed
by or to the Commissioner of DEQE.

4. Waterways Program (MGLA Ch. 91, S. 1-59), administered No regulations now.
by DEQE, has jurisdiction over filling, construction of Draft regulations on
any new structure, dredging, or removal of sand and Waterway licensing will
vegetation in tideland harbors and certain rivers below be submitted to OCZM
high water bank. All land below mean low tide is managed prior to Federal program
as a public trust by DEQE, and permission to utilize these approval.
lands is given in the form of five year licenses. Although
land between high and low water is privately held, no
activity that interferes with the reserved public rights New regulations incz.-
for fishing and fowling in this area is permitted. The porating CZM policies
Waterways Program also carries out projects with State to be promulgated
funds such as dredging and shoreline protection works. 6/78.

116

AUTHORITY STATUS OF AUTHORITIES

5. Ocean Sanctuaries (MGLA Ch. 132A, S. 13-17) have been No existing regulations.
created to protect all State waters except those from Lynn January 1, 1978 legis-
to Marshfield and those in Mt. Hope Bay. In general, such lature passed recodified
activities as the removal of sand, gravel, or minerals, law. Regulations to be
dumping of any new waste discharge are prohibited. However, Promulcated by August,
a broad class of activities are exempt from these pro- 1978.
hibitions. While the terms of the five sanctuaries differ, Draft regulations will
laying of cables approved by the Department of Public be submitted to OCZM
Utilities, projects authorized under the Waterways Program prior to Federal
or other improvements authorized by other State or Federal program approval.
agencies are permitted. No permit is required to conduct
an activity in an Ocean Sanctuary besides a permit that
would be issued under the Waterways Program. The DEM is
responsible to insure compliance.

6. The Energy Facilities Siting'Council (MGLA Ch. 164, Regulations in place,
SS. 69 F-R) has jurisdiction over determining the need for revised regulations
the siting of electric generating gas, and oil facilities planned. Memorandum
in the Commonwealth. The Council's jurisdiction includes of Understanding be-
controls over electric, gas and oil facilities. Any energy tween EFSC and EOEA
or energy-related facility not subject to EFSC jurisdiction that EFSC will consider
is managed in the same fashion as other coastal activities. CZM policies and act
consistently with the
management program.

7. The Massachusetts Environmental Policy Act (MGLA Ch. 30, Regulations in place.
S. 61 and 62). Establishes an environmental review process
for State actions, projects with State funding, or projects
requiring permits or licenses from State agencies. Essentially
an environmental full disclosure law, the intent of MEPA is
to improve environmental planning and design "so as to
minimize and prevent damage to the environment."

8. Community Sanitation Program (MGLA Ch. 111, State Title 5 regulations
Environmental Code, Title 5, Regulation 2), administered by in place (adopted 1977).
Local Boards of Health, requires permits for all sub-
surface dischares based on DEQE standards for percolation
rates, distance from a water body, capacity of system, etc.
Systems larger than 15,000 gallons per day are reviewed
by DEQE before permits are issued.

9. Self-Help Program, administered by the Division of Evaluate guidelines
Conservation Services, provides reimbursement for up to in place (point
50 percent of the cost of acquiring public recreation system). No reg-
and open space. Cities and towns must have established ulations now.
conservation commissions to be eligible.

10. Outdoor Advertising Board (MGLA Ch. 93 and 93D), is Regulations now in
authorized to prohibit the use of off-premise billboards place. No sign free
and other forms of advertising along primary roads in areas or corridors
areas that are not zoned for commercial or industrial in coast now.
use or are not a predominant business character. The
Board also has the power to designate areas of historical,
scenic, or environmental significance as Sign Free Areas
or Sign Free Corridors.

11. Scenic Roads Act, (MGLA Ch. 40, S. 15C) empowers No State regulations
local planning boards to restrict the removal of vegetation as Act enables local
or stone walls on designated local roads, exclusive of action.
numbered routes or State highways.

12. Historic District Act (MGLA Ch. 40C) enables cities and Legislature has created
towns to establish historic districts for the preservation districts. Act
and protection of historic sites and districts. Within such enables local government
districts, demolition, new construction and alteration to action.
exterior architectual features cannot be carried out without
a certificate of appropriateness or certificate of non-
applicability.

117

AUMORITY STATUS OF AUTHORITIES

13. Mineral Resources (MGLA Oh. 21, S. 54). The Division No regulations now.
of Mineral Resources in DEQE is empowered to license, Moratorium in place
following a public hearing, the exploration for sand, gravel for any new permits
and other minerals in Massachusetts coastal waters and the in sand gravel
seabed and leasing rights for extraction of such mineral extraction.
resources as have been discovered.

14. Marine Fisheries (MGLA Ch. 130, S. 19 et al). The Regulations in place
Division of Marine Fisheries in the Department of Fisheries on anadromous fish
Wildlife and Recreation Vehicles regulates the harvest of runs. No changes
fish in coastal waters and is charged with aiding the pro- anticipated.
motion and development of the commercial fishing industry.
The Division also operates a program to assist coastal
commissions to increase the supply of shellfish and to ensure
that construction on coastal streams does not impact the
passage of anadromous fish to spawning areas.

15. Public Access Board (MGLA Ch. 21, S. 17, 17a) is empowered No regulations.
to acquire access to great ponds and other waters within the
Commonwealth and develop trails and related facilities for
hiking, skiing, boating and other uses.

16. Scenic Rivers Program (MGLA Ch. 21, S. 17b) provides for No Scenic Rivers
the designation and restriction of rivers for scenic and designated now.
recreational purposes. The Scenic Rivers Act authorizes No regulations
DEM to regulate the alteration or pollution of designated now.
rivers and contiguous land within 100 yards of their bank.

17. Areas of Environmental Concern (MGLA Ch. 21a, S. 2(7); None yet designated.
Proposed EOEA Regulations) The Secretary of Environmental Ten nominated by CZM
Affairs developed a process for designating Areas for Program. By end of
Preservation or Restoration (APRs), or in the nomenclature first year of 306
of Massachusetts, Critical Areas of Environmental Concern. funding. Secretary
As a result of this designation, EOEA agencies will attach will have approved
a high degree of scrutiny to their activities in these or denied designation
areas, will not proceed with activities that could impair of nominated areas.
characteristics cited in their designation, and will Memorandum of
administer programs consistently with CZM policies re- Understanding signed
garding the acquisition,protection, and use of such with EFSC to protect
areas. State agencies outside of EOEA will be unaffected APRs.
by the designation except pursuant to a Memorandum of
Understanding with the agency or to MEPA, where no
project conducted or permitted by any State agency shall
qualify for a categorical exemption if located in an APR.

18. The Martha's Vineyard Commission is a regional planning Commission operates
and management agency, granted special regulatory powers under State approved
by State enabling legislation (Chapter 637, Acts of 1974, guidelines. Specific
as amended). The special legislation gives the Commission guidelines prepared
power to designate Districts of Critical Planning Concern for districts.
and to review Developments of Regional Impact, provide
assistance to the six towns on the island of Martha's
Vineyard as well as assume some regulatory control held
by the six communities.

19. Water Quality Permits NPDES(MGLA Ch. 21, S. 43) admin- NPDES administered
istered jointly by the Division of Water Pollution Control jointly with EPA, State
and EPA permits required for point source discharges; receiving water standards
discharges must conform to effluent limitations, receiving established by regula-
water standards, or other applicable regulations or adopted tions, effluent limit-
water quality plans. ations set by EPA, new
DWPC guidelines on
ocean outfalls to be
drafted pending issuance
of revised ocean
discharge criteria
by EPA.

AUTHORITY STATUS OF AUTHORITIES

20. Water Quality Certification of Dredging and Regulations to be drafted
Dredged Material Disposal (PL 92-500 , S. 401) and framework established
administered by the Division of Water Pollution for coordinating DWPC,
Control pursuant to federal law. DAHM, DHF, CZM review
of water quality,
biological and health
impacts of dredging and
dredged material dis-
posal.

21. Water Quality Standards, Segment Classification, Anti-degradation regul-
(MGLA Ch. 21, S. 27). Standards of minimum water quality ations exist. Revisions
are established by regulation for all waters of the to regulations to be
Commonwealth by Division of Water Pollution Control, drafted prior to
segments also classified with respect to treatment re- program approval.
quired or discharges prohibited. Regulations exist, policy
to be incorporated
during triennial review
and revision of segment
standards.

119

6.7 IMPROVING THE PERMIT PROCESS

Toward this end, a major portion of the federal funds to be received
during the 306 implementation phase will be used to consolidate and exped-
ite DEQE's system for reviewing permit and license applications in the
coastal zone. The funding will be used to increase DEQE's staff capabili-
ties in order to enable the following:

(1) Regional engineers shall have full responsibility for notifying
applicants for Environmental Authorizations of all required
DEQE and federal permits, the information and forms that must
be submitted to allow DEQE to process the permit applications,
the applicant's responsibility for federal consistency certifi-
cation, and the time frames within which the DEQE permit
applications must be acted upon.

(2) The regional engineers will be responsible for taking all
steps necessary to ensure concurrent processing of DEQE and
federal permits and shall encourage tp the maximum extent
possible joint site visits, joint notices and joint public
hearings.

(3) The regional engineer will be responsible for establishing
overall time frames, scheduling and sequencing applicable
agency reviews, and for ensuring that time limits established
by statute or regulation are adhered to.

(4) A computerized tracking system will be established and opera-
tional by the end of the first year of 306 funding. All per-
mit applications will be entered into this system and updated
as information is received or decisions made by the relevant
divisions within DEQE. The system will allow the regional
engineers to identify permit processing delays, to inform
applicants of the exact status of all their permit applica-
tions upon request, and to assign permit review staff on the
basis of workload.

The ef feet of these improvements will basically be to consolidate
and coordinate DEQE's various permitting and licensing functions under
the auspices of the regional engineers so that applicants can be better
informed as to permit requirements affecting their projects, the time
frames within which they can expect decisions to be made, and the status
of their specific applications at any particular time. In addition, the
computer tracking system will enable the regional engineer to ensure that
his/her subordinate divisions are meeting their respective responsibilities
on time, coordinating their reviews, and arriving at consistent decisions.

6.8 HOW THE PROGRAM WILL BE AMENDED

Changes to the Massachusetts Coastal Zone Management Program are
expected during the next few years as a normal process of plan evalua-
tion. As many citizens, agencies and levels of government had input on
the plan development, many will continue to evaluate and recommend modi-
fications during plan implementation. Recommendations for changes to the0
plan can come from individual citizens, citizen advisory committees, the

120

PROCESS FOR WATERWAYS LICENSE AND WETLANDS PROTECTION PERMIT

APPLICANT

ENVIRONMENTAL NOTICE OF INTENT TO
AUTHORIZATION CONSERVATION COMMISSION

ID.E.M. OCEAN I T
SANCTUARIES D.E.Q.E. - ORDER OF CONDITIONS
i REGIONAL ,
|MARINE L F ENGINEER -
IFISHERIES (DLWU,DAHM)
I _- -_ SUPERCEDING ORDER
I WATER POLLU- i- i
TION CONTROL I

C.Z.M. F- J|HEARING

FINAL ORDER

WATERWAYS LICENSE I

Means may or may not be applicable

121

statewide coastal resources advisory board, state agencies, the Legisla-
ture or the Governor. All proposed changes will be evaluated on a con-
tinuous basis by the Massachusetts CZM office and, once approved, for-
warded to the federal office of CZM. If approved by the federal office,
the change is incorporated into the program.

The specific procedure for incorporating changes varies with the
magnitude and impacts of the change. If the proposed change to the pro-
gram does not significantly alter the environmental impacts or intergov-
ernmental relations identified in this document, it will be considered
minor - a refinement (proposed CZMA regulations, Section 923.93). This
will be determined initially by the MUZM office (state 306 agency) in
coordination with the federal OCZM. A refinement can be implemented by
letter from MCZM to OCZM and a return letter granting approval.

Where the MUZM office and the federal OCZM determine that the pro-
posed change will constitute changes in the environmental impacts or
intergovernmental relations described in this document, the change will
be considered a formal amendment and will require a different procedure
for implementation (proposed CZMA regulations, Section 923.92). Examples
of changes constituting amendments include elimination/addition of
policies, incorporation of new laws into the program, or new regulations
not consistent with CZM policies.

The process to amend the program will be initiated by a formal sub-
mission from the MCZM office to the Associate Administrator. Prior to
the submission, the state will inform the public and affected parties to
determine the nature of public comments. This will be accomplished by
publishing notice of the proposed change in the Environmental Monitor.
The final submission will include: a written request from the Governor;
description and justification for the change; evidence of public notice;
discussion of environmental impacts. Based on the discussion of impacts,
the Massachusetts MEPA office and/or Associate Administrator may also
require an environmental impact report or environmental impact statement,
respectively.

Within 30 days of the formal submission, the Associate Administrator
shall determine whether the amendment is granted/not granted or requires
further exploration through the environmental impact statement process.
If an EIR/EIS is required, appropriate reviews under the MEPA/NEPA
statutes will commence.

When the change constitutes an amendment, implementing that amend-
ment prior to approval by the OCZM could lead to termination of funding
by the federal government (Section 923.94(b)(1)(iii)). For example, new
regulations for the Waterways Program will be law in the State of
Massachusetts 30 days after release of the regulations and public hear-
ings. However, they will not be part of the CZM Program, nor will
federal consistency apply until the regulations are submitted and approved
by the Associate Administrator as either a refinement or an amendment to
the Program.

All federal agencies will have an opportunity to comment on these
regulations during the state adoption process.

122

CHAPTER 7

PUBLIC PARTICIPATION: CITIZEN
PARTICIPATION, FEDER-kL AGENCY PARTICIPATION,
ANT) COORDINATION WITH OTHER PLANS

7.1 PAST CITIZEN PARTICIPATION ACTIVITIES

The preparation of coastal management program in Massachusetts began
in 1974 upon the receipt of federal CZM funds. In its earliest days,
Massachusetts CZM made a commitment to involve as many citizens as possible
in the development of the coastal zone management program. An open partic-
ipatory process was the one way of assuring the development of a management
program that would meet immediate and long term needs, grow from the
demands of citizens and communities, and would have support from all
levels of government. Some examples of this open participatory process
are:

--The Governor established a Task Force on Coastal Resources com-
posed of 42 volunteers representing the legislature, all levels
of government, and major user groups of the coastal zone.

--The Coastal Zone staff met with over 2,000 citizens and officials
in open public meetings to discuss policies and better management
of the coast.

* -- ~~Regional Citizen Advisory Committees were established in seven
of the ten regions of the coast. CAC members, representing
coastal communities and interests, met often on a monthly
basis during the past two years to ensure that CZM policies met
the needs of sub-areas of the coast.

--A public opinion survey of 1000 randomly selected coastal resi-
dents was conducted to further ascertain the needs and desires
of coastal citizens.

--Questionnaires were prepared to help local officials and CAG
members set priorities on subjects such as erosion problems,
recreation needs, and alternative management systems.

--The staff conducted an active public information program to
inform many thousands of citizens on CZM issues and progress.
Newsletters, publications, slide programs, films and newspaper
stories were among the materials prepared for public
dissemination.

--In addition to citizen involvement the CZM staff received excel-
lent technical assistance from the NERBC study of South Eastern
New England.

--After 3 years of this active interaction between citizens and
the CZM staff, a program Preview was distributed in December,
1976. Over 2,000 copies were printed and sent to Massachusetts
citizens and officials and federal agencies.

123

--In the winter and spring of 1977, changes and additions were
made in the Program Preview to reflect comments received from
federal agencies and citizens. CZM Citizen Advisory Committees i
worked with the CZM staff to prepare the Coastal Atlas.

--A public hearing was held oh the entire revised program in
August, 1977 prior to the Governor's formal submittal.

--Three thousand copies of the DEIS and the March 1977 Program
were distributed for citizen and local, state and federal
agency review. Five DEIS MEPA-NEPA hearings were conducted
in various coastal regions.

7.2 FUTURE CITIZEN PARTICIPATION ACTIVITIES

The CZM plan represents significant contributions of time, interest
and expertise on the part of many Massachusetts citizens. Citizens
improved the data base, verified CZM information, evaluated various alter-
natives, and expressed the values and concerns of their region. There
will be a need to continue public involvement in the management phase of
Massachusetts CZM to meet many of these same functions.

A. Citizen Advisory Councils

To meet this need, CZM will establish new CZM Advisory Councils for each
coastal region. These regional councils will be a natural evolution of
the existing CZM Citizen Advisory Committees. The tasks of the Councils
can include:

1) Annual Review: The regional Councils will annually review and
report to CZM on the applicability of the respective regional
chapter, and up-date where necessary.

2) Quality Control: The regional Councils will help to insure
overall quality control in the CZM Program. The Councils will
review on a periodic basis the state's regulatory and manage-
ment programs as they relate to their respective region, for
quality and consistency with the CZM plan.

3) Observation: The regional Councils will serve as local contacts
within the region, alerting the regional environmental engineer
and state CZM administrator of problems and issues in the region.

4) Priority Setting: The regional Councils will advise in the
setting of priorities in the allocation of technical-assistance
funding for the region, should requests for funds exceed avail-
able supply.

5) Conflict Resolution: The regional Councils will serve as a
forum for discussion and a central point for the collection of
information and ideas, should problems or conflicts occur between
communities.

124

6) Monitoring: The regional councils will monitor the coordination
of activities by local, state and federal government programs in
the coastal zone.

Council membership will include a formal representative of each city
or town in the region, as well as representatives of the major users-
interests in the region.

B. Statewide Coastal Resources Advisory Board

There will also be a statewide advisory board to assist the CZM director
and the Secretary of Environmental Affairs. This group will evolve from the
current Governor's Task Force on Coastal Resources, and will represent a
statewide constituency. Membership will consist of inland and coastal
representatives. Unlike the regional Councils, this group may not be
geographically representative, but will include at a minimum representa-
tives of commerce, business and utilities; universities; state, federal
and local governments; regional groups; commercial fishermen; cabinet
secretaries; conservation and civil interests; educational groups; CZM
regional Councils; and interested citizens.

This statewide group will have a mix of functions:

1) Advisory and Planning: This group will advise the director of
the CZI4 Program and the Secretary of Environmental Affairs on
the implementation of the CZM Program. As planning will continue
on erosion problems, recreation, and various aspects of outer
continental shelf oil and gas exploration and development, this
group will help to evolve state planning efforts.

2) Quality Control: This group will work with the CZM director on
a periodic review of environmental regulatory and management
functions to insure adequacy and consistency in the application
of CZM policies.

3) Priority Setting: This group will advise the CZM director and
the Secretary of Environmental Affairs on the setting of priori-
ties for CZM funding to local and state agencies, and for overall
program objectives and goals.

4) Education: This group will work to ensure development of long
term education programs to foster a state coastal ethic.

5) Management: This group will review the CZM Program on an on-
going basis, and recommend changes to the Secretary of Environ-
mental Affairs. This group will advise the Secretary on ques-
tions of amendments to the CZM Program.

6) Review: This group will perform for the Secretary an annual
independent review of the CZM Program.

125

7.3 Federal Government Participation

Appendix D documents the opportunity for full participation by
relevant federal agencies in the development of the management program.
It describes the contacts that were made with federal agencies early in
the program preparation, how federal input was obtained on a timely basis, and
summarizes the nature and frequency of contacts.

7.4 Coordination with Local, Regional, State, Interstate, and Federal
Plans

Appendix C details how the above groups participated in the develop-
ment of the Massachusetts Plan, and how coordination with existing plans
affecting the coastal zone was achieved,

126

CHAPTER 8

WHAT THIS PROGRAM MEANS TO LOCAL CONMMUNITIES

The Massachusetts Coastal Zone Management Program does not include new
laws or increase the present number of state or local permits required for
private development activities. As long as statewide interests are managed,
development decisions and community character will be determined by local
governments.

A. Technical Assistance

The state CZM Program will provide technical assistance to local com-
munities to aid in site specific problem solving. Scientific, environmental,
planning and legal expertise will be available to assist in short-term
studies within coastal communities. CZM assistance will be provided only
upon request of the local community. Eligible categories for technical
assistance include:

(a) erosion
(b) finfish and shellfish management (coordinated with
Division of Marine Fisheries)
(c) recreation facility siting (coordinated with DEM
and Metropolitan District Commission)
(d) public access (coordinated with Conservation Services,
Fisheries and Wildlife, and DEN)
(e) coastal wetland management (coordinated with DEM, DEQE)
(f) coastal land use planning problems (Department of
Community Affairs, Regional Planning Agencies,
Massachusetts Historical Commission)
(g) scenic river designation (coordinated with DEN, etc.)
(h) water quality (coordinated with DEQE)

In the first year, about five full-time professionals will be avail-
able to local communities on a rotating basis.

B. Financial Assistance

Local communities (selectmen, planning boards, and conservation coirmissions)
also will be able to receive financial assistance from the CZM Program to
undertake studies and preparatory work necessary before major project develop-
ment proposals can be initiated, provided the projects are consistent with the
state coastal zone program. Projects eligible for funding include:

(a) waterfront renewal and development studies: preparing harbor-
front plans aimed at improving visual and physical access to
waterfronts; identifying opportunities for waterfront parks;
waterfront pedestrian ways, ramps, and other public access
improvements; conducting feasibility, cost and preliminary engin-
eering studies for such waterfront improvement projects.

(b) port and harbor development projects: preparing overall port
is ~~~and harbor development plans; assessing future facility needs
and the economic return from such facilities; conducting feasi-
bility and preliminary engineering studies for public marinas,
town wharfs, and docks, access ramps, and navigational improve-
ments.
127

(c) dredged material disposal investigations: identifying feasible
land alternatives and sites for dredged material disposal; inves-
tigating costs; and preliminary engineering for innovative dredge
material disposal practices including creating artificial salt marshes
using dredged material as fill, and building containerized sites.

The maximum sum to be awarded for any one proposal cannot exceed
$20,000. The minimum sum is $1,000. The maximum time period for any
funded project will be one year. About one third of the first year fed-
eral money available to the state under Section 306 of the CZMA is pro-
posed to be targeted for financial assistance to local communities.

C. Coastal Energy Impact Program (CEIP)

Coastal communities hosting new coastal energy facilities will be
eligible to participate in a new federal loan, loan guarantee, and grant
program to cover the costs of public facilities and services necessitated
by accommodating coastal energy facilities and the costs of environmental
losses and damages sustained by the siting of a coastal energy facility.
CEIP is administered by OCZM4. These programs are:

1) loans and loan guarantees to help cover the costs of both provid-
ing additional public services and constructing new public facil-
ities (roads, water supply, sewage treatment works) made necessary
by new coastal energy facilities;

2) refinancing and other financial assistance, including grants in
extreme cases of hardship to repay the above loans if the
financial burden imposed on a community accommodating new0
coastal energy facilities is so severe as to cause substantial
hardship;

3) grants covering the full costs of environmental losses and dam-
ages sustained by the siting of a coastal energy facility; and

4) grants for planning for the impacts in the coastal zone of energy
development.

D. Consistency of State and Federal Government Actions

The CZM Program also becomes the central focus for consistent state
and federal actions in the coastal zone. The CZM Program staff also will
act as a mediator between federal agencies and will be notified through
the Monitor early in the process of new or expanded state or federal
actions in the coastal zone. Through the proposed permitting procedures
outlined in the CZM Program, local involvement in dredge and fill permits
should be streamlined and simplified.

E. Public Participation

Finally, through the continuation of the ten citizen advisory councils,
local communities will have a direct input into the formation of the on-
going CZM Program. The Citizen Advisory Councils will help to set the
priorities where CZM funding should be directed on the local level, estab- 0
lish coordinating links between local communities and state agencies,
establish on-going communications and regularly update the coastal Atlas
and the program as a whole.

128

Regulatory programs on the local level will not change. However,
the added assistance from the state on specific projects could have a
positive impact on how local communities manage their respective coastal
areas.

129

CEAPTER 9

9.1 NATIONAL INTEREST AND USES OF REGIONAL BENEFIT

The Massachusetts coast-is of national, historic, scenic, economic, and
recratin imortnce Theseaortof Boston serves as the major terminus
for maritime trade and delivery of energy supplies in New England; the fish-
ing grounds off the Massachusetts coast are among the most productive in the
world, and the estuaries, salt marshes, and ocean bottom spawning grounds of
Massachusetts serve to maintain this productivity; the many historic sites
along the Massachusetts coast give tangible evidence of the nation's
beginnings; Cape Cod, Nantucket, and Martha's Vineyard are national tourist
destinations; and oil and gas reserves off the Massachusetts coast may serve
to relieve national energy shortages and reduce dependence on foreign oil.

Recognizing the distinct and irreplaceable value of this country's
coastline, the Congress, in enacting the Coastal Zone Management Act, found
that "there is a national interest in the effective management, beneficial
use, protection, and development of the coastal zone" (Coastal Zone Manage-
ment Act, Section 302 (a)).

Once approved by the Secretary of Commerce, the Massachusetts coastal
program provides the basic policies for managing the Massachusetts coastal
zone in accord with both state and national interests. To ensure that the
national interest is adequately addressed by the Massachusetts program, the
CZMA requires that the state coastal "management program provides for
adequate consideration of the national interest involved in planning for,
and in siting of facilities (including energy facilities in, or which sig-
nificantly affect, such state's coastal zone), which is necessary to meet
the requirements which are other than local in nature", (Section 306(e) (2)).

The Massachusetts program provided opportunities to federal agencies
to participate in program development and solicited federal agency views on
their missions relating to national interests. Meetings with individual
agencies were also held. These interactions assisted in developing the
program's policies and procedures for addressing national interests. (A
chart showing this consultation appears in Appendix D.)

In addition to the comments received through consultation with federal agen-
cies, the Massachusetts program looked to the following sources for poli-
cies and information that must be taken into account to adequately consider
national interest in exercising both its planning and management respon-
sibili ties:

a. Federal laws and regulations,

b. Policy statements or Executive Orders from the President of the
United States (e.g., National Energy Plan),

c. Special reports, studies and comments from federal and state
agencies,

d. Testimony received at public hearings and meetings on the
Massachusetts program,

130

e. Certificates, policy statements and solicited opinions issued
on specific projects by federal regulatory agencies such as
those within FERC.

f. Statements of the national interest issued by federal agencies.

For three of the national interests salient to Massachusetts - energy
production and transmission, recreation and fisheries - NOAA, has issued
specific statements of national interest. These, in addition to the sources
above, are used for defining national interest in energy, recreation and
fisheries.

Facilities that are of national interest are often of regional benefit
as well, since they typically provide benefits or distribute services to
citizens of more than one municipality. Such facilities include energy,
recreation, transportation and regional waste treatement facilities. The
Commonwealth must be able to ensure that these facilities are not unreason-
ably restricted or arbitrarily excluded by municipal land and water use
regulations.
The discussion below summarizes how the Massachusetts program, both
during program development and as a continuing process during implementation,
considers facilities and resources which may be in the national interest.
The discussions of facilities that are also uses of regional benefit
include summaries of how the Commonwealth can prevent unreasonable re-
strictions or exclusions by municipal land and water use regulations.

1. National Defense and Aerospace: The Massachusetts program recog-
nizes the paramount importance of national defense, and while the
Massachusetts coast no longer hosts as many national defense facilities as
it once did, national security contingencies may, in the future, require
the Massachusetts coast to be the location of new defense facilities.
Recognizing these national defense interests, the Massachusetts program
excludes from its program existing federally owned or leased lands and
military installations.

With respect to proposals for new or expanded defense facilities, the
Massachusetts program will not seek to question the national security justi-
fication. Rather, it will strive to ensure that reasonable investigation
of feasible alternative sites is conducted so that conformance, to the maxi-
mum extent practicable, is reached with applicable policies of the
Massachusetts program. When necessary, federal consistency mediation pro-
cedures will be sought.

2. Enry:* The National Energy Plan sets forth three overriding
energy objectives for the United States:

--as an immediate objective that will become even more important in
the future, to reduce dependence on foreign oil and vulnerability
to sunply interruptions;

--in the medium term, to keep U.S. imports sufficiently low to weather
the period when world oil production approaches its capacity limita-
tion; and

*Note: Because energy is such a vital national interest, it is dealt with in
more detail than other national interests. National interest facilities include
energy storage and distribution facilities, refineries, electric generating
facilities, and deepwater ports.

131

-- in the long term, to have renewable and essentially inexhaustible
sources of energy for sustained economic growth. (Plan Overview
is ~~~~~P. ix).

The salient features of the National Energy Plan (NEP) are:

--conservation and fuel efficiency,

-national pricing and production policies,

--reasonable certainty and stability in government policies,

--substitution of abundant energy resources for those in short
supply, and

--development of non-conventional technologies for the future.
(Plan Overview p. ix-x).

Elements of the National Energy Plan with particular application to
the Massachusetts coastal zone are discussed below. Detailed analyses
of energy issues were presented in Volume I of the March 1977 Draft
Program. These are summarized in Chapter 3 of this document. Specific
policies relating to energy facilities are noted below.

(a) Conservation - "The cornerstone of the National Energy Plan is
conservation" (p. 55 of the NEP). Energy conservation efforts in
Massachusetts are endorsed in Policies 9 and 25 of the Massachusetts
CZM Program. In addition, Policies 26 and 27 encourage energy con-
servation by encouraging more compact development and in-fill of existing
urbanized areas.

(b) Outer Continental Shelf - "Oil and gas under federal
ownership in the Outer Continental Shelf (OCS) are important national
assets. It is essential that they be developed in an orderly manner,
consist~ent with national energy and environmental policies." OCS related
development and activities are specifically addressed in Policy 9 and
other policies referenced therein.

(c) Liquefied Natural Gas - "Due to its extremely high costs
and safety problems, LNG is not a long-term secure substitute for
domestic natural gas. It can, however, be an important supply option
through the mid-1980's and beyond, until additional gas supplies
become available." (page 57 of the NEP) "The previous Energy Resources
Council guidelines are being replaced with more flexible policy
that sets no upper limit on LNG imports.

132

Under the new policy, the federal government would review each application
to import LNG so as to provide for its availability at a reasonable price
without undue risks of dependence on foreign supplies. The assessment
would take into account the reliability of the selling country, the degree
of American dependence such sales would create, the safety conditions
associated with any specific installation, and all costs involved."
(page 57 of the NEP)

Massachusetts currently has a number of natural gas facilities in
the coastal zone, including the only existing major LNG terminal in the
U.S. LNG facilities are addressed in Policy 8 of the Massachusetts
Coastal Zone Management Program.

(d) Nuclear Power - "The United States will need to use more light
water reactors to help meet its energy needs. The government will give
increased attention to light water reactor safety licensing and waste
management so that nuclear power can be used to help meet the U.S. energy
deficit with increased safety." (page 70 of the NEP) Massachusetts cur-
rently has a nuclear power plant in Plymouth, with a potential for expansion
at that site.

Energy facility planning and siting and OCS activities are expressly
addressed in Policies 8 and 9 of the Massachusetts CZM Program, as well as
in other policies which pertain to other interests (e.g. protection of
coastal wetlands, Policy 1). In particular, a five step implementation
procedure for energy facility planning and siting is outlined in Policy 8.
How this procedure will provide for the continued consideration of
national interests in energy and provides for a balancing of energy
interests against other national interests is discussed below.

The first step, which is consistent with one approach suggested in
CFR 920.18 (h)(1), derives from Massachusetts CZM's findings on the
sensitivity of certain coastal ecosystems to withstand the impacts
typically associated with energy facilities. Specifically, in
order to determine how to balance national interests, the Massachusetts
CZM program examined prototypical impacts of energy facilities. In the
course of program development, Massachusetts CZM contracted the Institute
for Man and Environment to analyze the tolerance, sensitivity, and
rejuvenating capacity of coastal ecosystems and fishery resources with
respect to a range of impacts. A matching of the prototypical impacts of
energy facilities with the Institute's findings led to the conclusion that
salt marshes, dunes, beaches, barrier beaches, shellfish beds, salt ponds,
and known fish spawning areas should be avoided as sites for energy facili-
ties. Specifically, construction associated with terminals, tank farms,
power plants, gas facilities, refineries and coal extraction could lead to
severe physical alterations of ecologically significant resource areas, and
thus, when these areas are restricted under the Coastal Wetlands Restriction
Program, these facilities are not permitted uses. Transmission lines and
certain underground utility lines could, however, traverse these areas with
minimum damage provided natural topographic features were restored, and thus
these are permitted uses.

133

In addition, of particular concern was the damage that could be wrought
by the siting of energy facilities on complexes of coastal ecosystems pre-
0 ~senting unique qualities, with high biological productivity, and remaining
in a relatively pristine state (designated Areas for Preservation or Restora-
tion/Areas of Critical Environmental Concern). Thus, in APRs/ACECs, the EFSC will
give prime consideration to environmental impact in its balancing of envir-
onmental impact, need and cost.

In the second step, the Energy Facilities Siting Council
examines ten-year forecasts of demand required of gas and
electric companies and notices of intent to construct
oil facilities. In that examination and approval of forecast projections,
the Council reviews analyses of alternatives provided by applicants,
including other methods of generating, manufacturing, or storing gas or
electricity, strategies for promoting energy conservation or consumption
or for modifying load curves, other sources of providing energy, the alter-
native of not providing additional oil or gas, and applicant-provided des-
criptions of how energy policies of the Commonwealth or the federal govern-
ment were taken into account. The consideration of these alternatives
meets the requirements of CFR 920(b)(1) relating to evaluating energy
source mixes and energy conservation. Through this comprehensive examina-
tion and review power, the Council determines whether to approve an appli-
cant's forecast of energy demand needs. Once the need for additional
energy is established, and approval given to the way (i.e., what kind of
facility) in which the -need should be met, the Council examines alternative
sites for the. approved facility. This review is broad-based, examining
and comparing, from the overall perspective of protecting the environment
and minimizing energy costs, alternative sites.

In deciding whether or not to approve a long-range forecast, the
Council is bound by statute (Chapter 164, Section 69J) to meet five require-
ments and for a notice of intent, three additional requirements. The first
five require findings that all information submitted, including environmental
impact and demand projections, is accurate and consistent with other compan-
ies and that the plans are consistent with current health, environmental
protection, and resource use policies of the Commonwealth and consistent
with the policy of providing necessary supply, at low cost and with minimum
environmental impact. For notices of intention, the Council must further
find that sources of supply listed are accurate, that the project is
financially sound, and that the plans, including buffer zones or alterna-
tives thereto, are consistent with current health, environmental protection
and resource use and development policies as adopted by the Commonwealth.

The Council's regulations also call for it frequently to act consis-
tently with current health, environmental protection and resource use and
development policies of the Commonwealth. These are not defined but by
Regulation 62.9(3) include policies "set forth in the constitution, general
laws, and duly promulgated rules and regulations of responsible state...
agencies having the force of law:' Thus, once the Secretary promulgates the
Chapter 21A regulations, the CZM Plan is such an environmental policy.
62.9(3) and 67.1 and 72.9 state that the Long Range Forecast or Notice of
Intent shall not be approved unless consistent with such policies. Section
64.8 and 67.7 and 73.2 sets forth the information currently required for

134

such forecast or notice applications. 7.5(4) states that
unless there are objections raised by a government body, no Notice of
Intent may be denied because of competitive effects or surplus supply.
Rule 73.5 provides other decisional criteria including alternatives and
conservation measures and 73.6 elaborates on the environmental information
required.

CZM's concerns at the Forecast/Notice of Intention stage are that
coastal sites are assured for coastally-dependent facilities, that the
national interest in energy be weighed with other national interests, that
the Council have adequate information to make informed decisions within
the limited scope of the Forecast/Notice review and that such decisions
not be given more weight than the scope of inquiry constituting them, and
that the Council be consistent with all CZM policies where relevant.

Fundamental to the energy policies and to other policies
is the concept that some energy facilities are coastally-dependent and,
if demand warrants, must be sited in the coastal zone. Here, the EFSC
review of alternatives shall evaluate another coastal site but need not
address inland sites. Evaluations of non-coastally dependent facilities must
include an evaluation of at least one inland site in order to be consistent
with the Plan. Coastal dependent and non-coastal dependent facilities are
defined in Policy 8.

Consideration of energy needs at the state, regional and national
levels is an inherent part of the EFSC review. Concerning its decision
regarding the need for the facility (the demand forecast) the Council con-
sistently evaluates demands and supply arrangements out of state. Regu-
lations 61.5, 63.2, 66.1 and 71.5 reveal that such data can be used to0
justify construction of facilities in the Commonwealth; that the Council
is entitled to copies of all agreements regarding the purchase of power;
that the applicant must reveal the location and capacity of all facilities,
including, those out of state; and that for oil facilities, two market fore-
casts must be prepared, one for in-state and the other for the total market-
ing region. Thus, the pervasive evaluations by the Council of out of state
energy needs and supplies coupled with the balancing of energy v. other
national interests in the coastal zone which are contained in the CZM Plan
and promoted by the Secretary of EOEA provide for a thorough process for
considering national energy interests in the Massachusetts coastal zone.

At the Long Range Forecast and Notice of Intention stage, the Council
conducts a preliminary review of environmental impacts. Upon completion
of detailed engineering plans, the full environmental review takes place
by submittal to the state and local agencies. At this stage (the third
step of the process), applicants proposing to construct energy facilities
must secure all applicable state and local permit approvals.

However, since providing energy is a vital public need and energy
facilities are a use of more than local benefit, and often in the national
interest, the Massachusetts energy siting procedures provide for an appeal
process to ensure that the results of the third step of the procedure do
not unreasonably prevent the construction of an approved energy facility
at an approved site. This fourth step is triggered by petition from an
electric, gas or oil company to the EFSC for issuance of a Certificate of
Environmental Impact and Public Need on the grounds that state or local

135

O agency regulations have imposed burdensome conditions, caused undue delays,
or otherwise unreasonably restricted or excluded the construction of an
EFSC approved facility at an approved site. If, after reviewing the
petition, the Council makes an affirmative finding, the Certificate, with
whatever conditions it may include, serves in lieu of the state or local
permit or license in question.
The only case where the EFSC could not supercede local regulations
involves the siting of oil facilities other than pipelines. If a local
zoning by-law prohibiting oil facilities has been placed into eff ect prior
to a filing by an oil company of a notice of intention to construct,
the EFSC cannot override the local ordinance. 1'owever, ample industrially
zoned land currently exists in the coastal zone. Foreseeable demand
for new coastally dependent oil facilities is expected to be limited.
For example, as a result of a current low berth occupancy rate
(approximately 10% for New England and 23% in Boston), it is pro-
jected that existing marine terminals are sufficient to meet a
reasonable and foreseeable demand beyond the year 2000.

Furthermore, local attempts to amend existing zoning ordinances or oy-
laws to exclude all industrial uses or, specifically, coastally dependent oil
facilities where they previously were permitted would be deemed unconstitutional,
as arbitrary, capricious and unreasonable actions, or would constitute
illegal "spot zoning" in violation of the state's zoning enabling act. Also,
there is a special state procedure available to any landowners directly
affected by such zoning changes which allows them to challenge the validity
is of the changes.

With respect to non-coastally dependent oil facilities (refineries
and most oil storage), the state encourages consideration of siting in
inland areas, where there is ample industrially zoned land, in
addition to that in the coastal zone.

Consequently, the state does not foresee the possibility of any
unreasonable restriction or exclusion of oil facilities by local zoning
by-laws.

The above procedures make possible adequate coordination between the
MCZMP and other relevant state, federal and local agencies involved in
energy facility planning and/or siting. The framework for coordination
and implementation is provided by the following:

First, the adoption of the CZM Program through rules and regulations
promulgated by the Secretary of Environmental Affairs compels the EFSC to
give cognizance to CZM policies because by law and its own regulations,
the Council is bound to make its forecast and site approval decisions in
conformance with current health, environmental protection, and land use
and development policies of the Commonwealth as set forth in the Consti-
tution, general laws, and duly promulgated rules and regulations of respon-
. sible state, regional or local agencies having the force of law. The Sec-
retary's regulations also bind agencies in the Executive Office of Environ-
mental Affairs to abide by CZM policies, to the extent permissible by
law, thereby ensuring the implementation of the second step of the site
suitability assessment procedure.

136

Second, the Memorandum of Agreement between the Secretary of Environ-
mental Affairs and the Council (see Appendix B) sets forth the working
and institutional arrangement to be followed in incorporating CZM policies
into the Council's forecast and siting approval procedures,

Third, with respect to federal agencies, the Council examines the
relationship of forecasts and proposed facilities to Massachusetts and
federal energy policies and provides a forum through public hearings on
forecasts and petitions for Certificates of Environmental Impact and Public
Need for federal agencies to make their views known. In addition, following
EOEA agency permit approvals or EFSC override of denials, federal consistency
concurrences will be issued in accordance with EFSC determinations. For FERC
and NRC permits, limited concurrences will be issued for those issues decided
by the Council and not within the scope of review of any EOEA agency.

Fourth, the EFSC, in assessing forecasts and site needs, takes into
account arrangements made by Massachusetts energy suppliers to provide out
of state requirements, bulk purchase agreements, and other inter-state
aspects of energy demand and supply. This facet of the EFSC's review
operations meets the requirements of CFR 920.18(b)(7).

Fifth, prior to forecast and site approval, or issuance of a Certificate
of Environmental Impact and Public Need, the Council, by law, must hold a
public hearing, thereby allowing concerned citizens, organizations, and
local, state, regional and federal officials to make their views known,

With regard to OCS development, the MCZM4P will consider and balance
national interests by means of the following. (See Policy 9 for more detail.)
The Massachusetts program will evaluate OCS plans to determine if all rea-
sonable measures - locational, structural or operational - have been taken to
reduce the potential interference with traditional fishing operations, the
risks of oil and gas spills on marine resources, and the possibilities of
spills reaching shore. Siting of land based support facilities will be
encouraged where consistent with the ports and harbors policies but will
not be permitted in restricted wetlands or where one of the seven inter-
ests of the Wetlands Protection Act would be violated. In addition,
through the review of OCS plans, special concern will be addressed to
designated Areas for Preservation or Restoration and Ocean Sanctuaries.

Finally, the program's port and harbor policies, Policies 7 and 19,
also provide for accomodation of the national interest in energy by
assigning high priority to coastally dependent energy facilities in the
use of designated port areas. Non-coastally dependent energy facilities
will be similarly favored if their siting in the port area has been approved
by EFSC. Fifteen such ports have been identified. These areas will
receive high priority in the allocation of dredging funds, and the
exclusion of coastally dependent energy facilities will be prevented through
tidelands licensing and review for federal consistency of federal funding
actions. Policy 7 also provides for the designation and development of
additional port areas if the need to be met is of regional or national
significance.

137

3. Recreation*: The Massachusetts coastline is of more than local and
0 ~~state interest; it-is a recreational resource of unique and natural beauty.
The Massachusetts Coastal Zone Management Program declares that the
"recreation dilemma is critical. Solutions must be provided within the next
decade or most remaining opportunities will be lost", and that the primary
concern "is to increase and enhance public use of the Massachusetts shore-
line while improving existing facilities and minimizing future conflicts
of recreation areas." Visitors yearly come from across the country to
Massachusetts to utilize the staters recreational facilities, most of
which are concentrated in the state's coastal zone. Tourism is a leading
contributor to the State Gross Product and the coast accounts for most of
the jobs and state tourist income.

Recognizing its responsibilities to the rest of the nation,
Massachusetts in its coastal planning has incorporated local, state and
federal recreation interests in issues affecting the coastal zone. The
Massachusetts coastal recreation policies have been developed after con-
sideration of the following sources:

a) federal laws and regulations

b) the nation-wide Outdoor Recreation Plan

c) state and local recreation programs (e.g., Massachusetts State-
wide Comprehensive Outdoor Recreation Plan)

0 ~~~d) special reports, studies and comments from federal, state and
local agencies.

The Massachusetts Coastal Zone Management Program has incorporated
the State Comprehensive Outdoor Recreation Plan (SCORP), which is con-
sistent with the National Outdoor Recreation Plan adopted in 1973. The
SCORP process will continue to be used as the Planning process for
giving adequate consideration to the national interest in recreation.
The Plan calls for:

a) increase the availability and access to recreation resources,
especially in central, city, suburban and urban fringe areas,

b)improve the management and administration of recreation
resources and programs by local and state governments.

*National interest recreation facilities include national seashores,
parks, forests, large and outstanding beaches and recreational

138

Salient points of the National Plan and their relevance to the
Massachusetts CZM Program are as follows:

a) Expand recreation opportunities in urban and high need areas:
Policy 24 addresses this concern and includes a list of sites for
which future acquisition for recreation purposes would be consid-
ered consistent with the program.

b) Improve public transportation facilities to coastal recreation
facilities: Policy 21 outlines the state's concern to increase
public access by public transportation and by linking existing
recreation sites through public trails.

c) Protect existing recreation areas of state and national si gnifi-
cance from adverse impacts: Outdoor recreational activities are
permitted uses in restricted coastal wetlands; intensive develop-
ment is not, thereby ensuing that uses of wetlands contiguous to
recreation sites will be compatible. In addition, Policy 13 out-
lines how the state will utilize the Massachusetts Environmental
Policy Act to protect existing recreation areas listed with the
policy. Also, existing state or locally owned parks or recreation
areas cannot, under the Massachusetts Constitution, pass from pub-
lic to private ownership or be converted for another use without
a two-thirds vote of the Massachusetts Legislature, giving these
areas a special measure of protection.

d) Provide more effective management: Policy 22 calls for improved
management of existing recreation facilities and advocates the0
facilitation of the use of these facilities for multiple types of
recreation activities.

e) Transfer underutilized and surplus federal lands: The list with
Policy 24 identifies potential surplus federal lands on which the
state would like to see recreational development occur, should they
ever be disposed.

Large and outstanding recreational sites and facilities that draw users
from areas other than the immediate municipality within which they are
located are obviously uses of regional benefit. The Commonwealth has the
ability to acquire such sites through the eminent domain powers vested in
DEM, MDC and the Public Access Board, thus ensuring that when opportunities
arise, potential regional benefits can be realized (see Policy 24).

4) Transportatioit: Port development and maritime shipping and indus-
try are accorded high priority and given preference in existing port areas.
New port development outside of existing port areas is restricted, unless
the need to be met is of national or regional importance as described in
Policy 7 and cannot be met in existing port areas. Existing major road and
transit plans have been examined, and the status of their consistency is

*National interest facilities include interstate highways, airports,
navigation aids, ports, and railroads.

139

discussed in Policy 26. Logan Airport in Boston is the New England
region's airport of major national significance; no plans for expansion
are under consideration (see Appendix C). The Massachusetts program
policies on wetlands, ports, and general public investment are the chief
considerations that would be brought to bear on airport siting and
expansion. Other future transportation needs will be determined by
relevant federal agencies working with counterpart state and local
agencies to develop annual transportation programs consistent with their
respective responsibilities. This will provide for adequate consideration
of the national interest. Coordination with the Massachusetts CZM
Program is addressed specifically in Policy 26.

National interests in transportation, however, must be balanced against the
national interest in wetlands and living resources. For instance, the
program requires bridges to be constructed so as not to impede anad~romous
fish passage and so that the basic seven interests of the Commonwealth's
Wetlands Protection Act are -met.

Where regional transportation improvements are needed, the Department
of Public Works can exercise the power of eminent domain to acquire rights
of way. MASSPORT Authority is exempt from local zoning, and the state's
tidelands law provides authority for preventing the exclusion of maritime
transportation in designated port areas and for protecting general naviga-
tional rights.

5. Regional Waste Treatment Plants: Concomnmitant with the program's
support to attainment of national water quality goals (see below under
water), the program recognizes that public sewage treatment plants are
uses of regional benefit. The Division of Water Pollution Control is
empowered to order a municipality or a water pollution abatement district
to construct treatment facilities and to prepare necessary engineering
plans. Highest priority for waste treatment facilities is given to pro-
jects serving existing urban areas and community centers where water
quality problems currently exist. Next priority is awarded to facilities
proposed for contiguous developed areas. In all cases, facilities pro-
posals must demonstrate a documented public health problem requiring
resolution through a structural measure (see Policy 26). During implemen-
tation, national interest will be considered in developing the annual
priority list for federal and state funding of waste treatment facilities.
This list is approved by both EPA and the Secretary of Environmental
Affairs, thereby allowing for input of national interest concerns.

The national interest on-waste treatment plants is balanced against
national interests in wetlands, barrier islands, recreation, floodplains,
and living marine resources in that treatment plants and outfalls are to
be sited so as to minimize potential adverse effects to recreation beaches
and shellfish beds and so as to minimize the growth-inducing effects
caused by providing sewer services in floodplains, barrier beaches, and
wetlands.

6. Water and Air: The program fully incorporates the national inter-
0 ~~ests in air and water quality, and the requirements of the federal Water
Pollution Control Act and Clean Air are made part of the Massachusetts

140

coastal program including non-point sources of water pollution and air
pollution (Policy 10). Thus, those water and air national interests will
be met during program implementation through the process of issuing state
and federal air emission and waste water discharge permits.

7. Wetlands: The national interest in wetlands, as expressed in the
President's Executive Order on Wetlands (Executive Order 11990, May 24,
1977) is:

"to avoid to the extent possible the long and
short term adverse impacts associated with the
distribution or modification of wetlands and to
avoid direct or indirect support of new construc-
tion in wetlands whenever there is a practicable
alternative."

The Massachusetts program meets this national interest in Policy I
by permitting in restricted wetlands those activities which have no
practicable alternative (e.g., wharves and piers which all require a water-
front location) and by prohibiting or conditioning all other activities
which would modify or destroy wetland values. The national interest in
wetlands is balanced against the national interest in energy facilities siting
in that certain necessary components of energy facilities (transmission
lines, pipelines, and intakes and out-take conduits for cooling water) are
permitted uses for wetlands. For other types of energy facilities, such
as tank farms, the national interest in wetlands is represented by either
their prohibition in restricted wetlands or conditioning of them in
unrestricted wetlands to protect the interests of the Wetlands Protection
Act.0

8. Endangered Flora and Fauna: Habitats are protected through the
restriction of wetlands as well as through designation as Areas for Preser-
vation or Restoration (Policies 1 and 2). The special scrutiny reserved
for activities taking place in Massachusetts ocean sanctuaries also pro-
vides assurance that during the implementation the national interest in
marine mammal protection is addressed in licensing off-shore activities.
Also see living marine resource below.

9. Floodplains and Erosion Hazard Areas: The national interests in
these areas as expressed through the President's Executive Order on flood-
plains and the National Flood Insurance Program are incorporated into the
Massachusetts program. Development is conditioned or restricted in wet-
lands and floodplains (Policy 1). The program supports non-structural
measures for erosion and flood control - structural measures are only
selectively permitted and then only if downcoast effects are minimized
(Policy 15). As the national interest in f loodplains is incorporated in the
Massachusetts program's policies, those national interests will be
accommodated through coastal wetlands restrictions, Wetlands Protection
Act permitting and Tidelands licensing.

10. Barrier Islands: See wetlands and floodplains above.

11. Historic Sites and Districts: The program affords protection to
designated historic districts or sites from adverse impacts stemming from
federal or state actions, and accordingly all national interest facilities0
must minimize adverse impacts to designated historic districts or sites

141

Policy 12). During program implementation, the national interest in
historic sites and districts will continue to be considered with the pro-
gram encompassing new districts or sites as they are established or

12. Wildlife Refuge or Reserves: Federally owned refuges are
excluded as federal lands from the provisions of the Massachusetts program.
State or other publicly owned refuges or reserves may not, under the
Massachusetts Constitution, be converted to other use or be sold without
two-thirds approval of the Massachusetts Legislature. The presence of
feeding and breeding areas for waterfowl or birds dependent on coastal
resources is one of the criteria used in designating Areas for Preservation
or Restoration. The establishment of wildlife refuges or reserves is of
high priority in designated Areas for Preservation or Restoration (Policy
2). During program implementation, the federal consistency mediation pro-
cedures may be invoked to resolve conflicts arising from balancing national
interests in wildlife refuges or reserves with other national interests,
such as municipal sewage treatment plant siting.

13. Areas of Unique Cultural Significance: See historic sites and
districts above.

14. Minerals: Mineral development is a recognized permitted use
under the Massachusetts program. However, such development is balanced
against other national interests in that dredge or filling will be condi-
tioned in wetlands or barrier islands; and offshore, is conditioned upon
a showing that there will be no adverse effects to natural sand replenish-
ment processes for recreational beaches or to living marine resources
(Policy 6). Presently, there is a moratorium on sand and gravel mining
in state waters. During program implementation, federal agencies will be
offered opportunities at public hearings on off-shore leases in
Massachusetts waters to voice national interest concerns, and the leasing
process will take account of these interests.

15. Prime Agricultural Lands and Forests: No agricultural lands or
forests of national significance exist in the Massachusetts coastal zone.

16. Living Marine Resources: In determining the national interest in
living marine resources, the following documents and specific legislation
were used as indicators:

A Compilation of Federal Laws Relating to Conservation and
Development of our Nation's Fish and Wildlife Resources, Envir-
onmental Quality, .and Oceanography. The Library of Congress,
Congressional Research Service. January, 1975.

A Marine Fisheries Program for the Nation. U.S. Department of
Commerce. July, 1976.

Fishery Conservation and Management Act of 1976. )P.L. 94-265)

142

The major objectives of the national interest in living marine
resources as expressed are as follows:

To conserve, enhance and manage in a rational manner commercial
fishing which constitutes a major source of employment and con-
tributes significantly to the food supply, economy and health of
the nation.

To strengthen the contribution of marine resources to recreation
and other social needs.

To develop and protect all species of wildlife, resources thereof
and their habitat, and to control losses by damage to habitat
areas through coordination with other features of water resource
development programs,

Elements of the national interest in living marine resources with
particular application to the Massachusetts Coastal Zone Management
Program are as follows:

1) Emphasize Commercial Fisheries

Policy 14 outlines the state's emphasis in encouraging and
assisting commercial fisheries research and development. Policy 7 accords
the fishing industry priority in allocating port space and Policy 19 dives
f ishing harbors priority f or state and f ederal dredging f unds. These priori-
ties assure that the commercial fishing industry's on-shore space and harbor
needs are met.

2) Relationship of Marine Resources to Recreation

Policy 1 allows construction associated with recreation activities
in coastal wetlands. Policy 21 outlines the state's concern to increase
public access by public transportation and establishes the state's interest
in linking existing coastal recreation sites to each other or to nearbv
coastal inland facilities via trails for bicyclists, hikers and equestrians,
and via rivers for boaters, thereby expanding recreational fishing oppor-
tunity. Lastly, Policy 24 addresses the expansion and development of
recreational facilities, including those for recreational fishermen.

3) Develop and Protect Wildlife and Their Resources

The Massachusetts program addresses the adverse effects to wild-
life that may stem from construction or development in open ocean waters,
estuaries, and coastal rivers. Specifically, Policy 3 speaks to minimizing
damage to shellfish beds from outfall placement; Policy 4 addresses impedi-
ments to anadromous fish passage; Policy 5 specifies' the measures to be
taken to avoid adverse impacts to fisheries from dredging or dredged
material disposal; and Policy 9 outlines the state's concern for fisheries
and wildlife in OCS exploration and development and other off-shore mining. i

143

4) Protection of Wildlife Habitats

Consistent with the national interest in wetlands protection, the
Massachusetts program conserves salt marshes, shellfish beds, dunes,
beaches, barrier beaches, and salt ponds -- all resources that provide
food and habitat upon which marine life depends (Policy 1). In addition,
through designating Areas for Preservation or Restoration which encompass
particularly important areas of marine productivity, wildlife habitats are
afforded additional protection (see Policy 2).

Other national interests in energy facilities siting, mineral extrac-
tion and transportation are matched against national interests in fisher-
ies with the result that the planning for and siting of such national
interest facilities must avoid adverse imnacts to marine productivity and
fisheries. Specifically. off-shore mininag is Prohibited in ocean sanc-
tuaries which constitute the major traditional fishin- waters of
Massac'husetts and encompass the malor off-shore shellfish beds and f in-
fish spawning grounds. Moreover, OCS development and exploration is,
under the Massachusetts program, conditioned to minimize impacts on fish-
ing operations and on spawning grounds.

During program implementation, the national interest in fisheries
will be considered in Wetlands Protection Act permitting, Tidelands
licensing, off-shore mineral leasing, water quality discharge permitting,
and energy facility siting. These permits, licenses, and approval proce-
dures either expressly include protection of fisheries as a criteria for
approval or provide a Public process for introduction of evidence that
must be considered prior to approval.

144

9.2 ADMINISTRATION OF FEDERAL. CONSISTENCY

Concern for the future of the Massachusetts coast is by no means
peculiar to the Massachusetts community. Federal as well as state and
local agencies help make the development and preservation decisions which
ulitmately impact our lands and waters. Because effective management
of coastal resources demands a significant level of governmental coor-
dination as well as a focus of control, the Coastal Zone Management
Act provides that:

"Each Federal agency conducting or supporting
activities directly affecting the coastal zone
shall conduct or support those activities in a
manner which is, to the maximum extent practicable,
consistent with approved state management programs."

Requirements within the Act which define the federal/state relation-
ship are referred to as the federal consistency provisions. Under these
provisions, the Massachusetts Coastal Zone Management Program has been
authorized to work with federal agencies to delineate how federal
activities must proceed to realize state -CZM requirements. The asterisked
policies in Chapter 4 of the FEIS are the principal measures against which
federal activities will be judged for consistency. These include the
following: 1-13, 15, 17, 19, 24, 26.

Covered by the Act's federal consistency provision are:

(1) Federal licenses and permits;

(2) Federal licenses and permits described in detail in OCS plans;

(3) Federal assistance to state and local governments or any entity
related thereto, through grant or contractual arrangements, loans
guarantees, or insurance; and

(4) Federally conducted or supported activities directly affecting the
coastal zone, including any development project involving a
building or other structure or the alterations of terrain or a
body of water, conducted by or on behalf of the federal government.

FEDERAL LICENSES OR PERMITS (See Section 9-3 for licenses and permits subject
to federal consistency)

(1) Federal agencies shall not approve any license or permit for which
requisite state permits or licenses required under applicable
Massachusetts laws and regulations have not been obtained. Where
categorical concurrences have been made for the type of activity,
state permits and/or licenses alone shall be deemed valid state
certification of consistency for actions likely to affect land or
water uses in the coastal zone. When multiple permits are required
and there is a need for CZM coordination, or where there is a
possible conflict with the CZM plan, the procedures and thresholds
detailed in the 21A regulations apply. Public notice shall be
given all categorically concurred projects, whether CZM or the EOEA I
actually reviews them.

145

(2) MCZM reserves the right to review the consistency of federal license
and permit activities applicable to uses and/or developments which
although not subject to the permit or licensing requirements of
Massachusetts law may nevertheless significantly affect the state's
coastal resources. MCZM shall monitor such federal license and permit
activities through the state's designated A-95 clearinghouse, through
review of NEPA environmental impact statements and through such other
avenues. as provided to it by law. MCZM shall notify the appropriate
federal agency, the applicant and the Associate Administrator for
Coastal Zone Management of its intention to review the consistency
of proposed federal permit or licensing activities with applicable
provisions of the MCZMP. Such notification shall be in writing and
shall be made within a period not to exceed 30 days from the notice
date of the federal license or permit application.

(3) if in the absence of an applicable state permit or license, MCZM
finds issuance of a federal permit or license to be inconsistent with
the MCZNP, it shall indicate the specific nature of the inconsistency,
shall propose alternative actions, and shall notify the federal
permit or license issuing agency, the applicant and the Assistant
Administrator. (see below for activities on the OCS).

FEDERAL LICENSES AND PERMITS DESCRIBED IN DETAIL IN OCS PLANS

Plans submitted to the U.S. Secretary of Interior for Outer Contental
Shelf exploration, development or production shall be submitted to CZM
together with a certification of their consistency with the Massachusetts
CZM program. The certification shall also identify the consistency of
required federal permits or licenses with applicable CZM policies.
Applicable CZM policies are: Policies 1, 2, 4-13.

(1) Persons submitting any exploration and development and production
plans to the Department of the Interior shall Also submit an
evaluation and certification of its consistency with the
Massachusetts CZM Program. After removing confidential information
the Department of Interior will transmit the plan, evaluation,
and certification of consistency to the Massachusetts CZM Program
for approval within a time specified in 30 CPR 250.34.

(2) MCZM shall review OCS plans and consistency certifications for
consistency with specific MCZM policies. Any one license or permit
contained in the plan which is inconsistent shall render the
entirety of the plan inconsistent and thus suspend approval of all
other licenses and permits. Where MCZM objects to one or more of
the federal license or permit activities described in the consis-
tency certification, it shall separately discuss each objection
with reference to specific MCZM policies. Alternatives to or
modifications of the proposed activity (ies) which would render
the plan consistent with MCZM shall be recommended. The appli-
cant shall further be notified of his right to appeal the
Council's objection to the Secretary of Commerce.

146

(5) Where MCZM disagrees with an agency determination of consistency,
it shall indicate the nature of its objection with specific
reference to applicable CZM policies. It shall further recommend
alternatives to or modifications of the proposed action that
would render it consistent with said applicable provisions. A
copy of such notification shall be forwarded to the Associate
Administrator for Coastal Zone Management. If MCZM does not
respond to the federal agencies notification within 45 days,
except where additional time is requested, the project is
presumed to be consistent.

FEDERAL ASSISTANCE PROGRAMS TO STATE AND LOCAL GOVERNMENTS

CZM will work with coastal communities and federal funding agencies
to assure that projects and programs meeting the policies of the CZM
program are given priority consideration for federal funding. Occasionally,
however, some state and local government applications for federal assist-
ance will contravene CZM enforceable policies (e.g. federally
subsidized housing to be located in a salt marsh or assistance to dredge
new deepwater channels outside existing port areas). In these instances,
CZM will deem the application for federal assistance as inconsistent
with CZM policies. Policies for which federal consistency is required
are: 1-13, 15, 17,19,24,26.

The process is as follows:

(1) Applications for federal assistance by units of state or local
government and/or related public entities to plan for, design,
build, alter or expand physical development projects in the
following areas or of the following types shall be routinely for-
warded to MCZM by the Project Clearinghouse (A-95) for certifi-
cation of consistency with applicable provisions of the MCZMP.

a. Areas where Certification will be required:
1. All tidal waters.
2. Intertidal Areas
3. Land areas above mean high water extending to 100'
inland of the 100 year floodplain.

b. Projects requiring Certification regardless of their location
within the coastal zone.
1. Power generating and designation plants.
2. Minerals extraction facilities
3. Wastewater treatment and collection facilities
4. Transportation facilities

(2) MCZM, however, reserves the right to monitor proposed federal
assistance projects other than those described above through the
A-95 and NEPA review processes and other similar avenues. Where
such monitoring indicates a significant impact on the state's
coastal region and a subsequent need for a consistency determination
MCZM shall notify the applicant agency, involved federal agencies,
and the Associate Administrator for Coastal Zone Management of its
intention to make such a determination.

147

(3) MCZM shall notify in writing, the applicant, the federal license
or permitting agencies, the Secretary of Interior and the Secretary
of Commerce of its concurrence or objection within a period not to
exceed six months after receipt of the OCS plan, consistency certifi-
cation and supporting information. For amended OCS plans, state
concurrence shall be issued in three months.

(4) Where MCZM has previously objected in whole or part to an OCS Plan
consistency certification, it shall review amended or new OCS
plans, consistency certifications and/or supporting data and
information in the manner set forth under (5) above. Such new
or amended material shall meet all standards of content and detail
required for original submissions as described under (1) - (3)
above. Within a period not to exceed three months from receipt
of such new or amended material, MCZM shall notify all parties
of its concurrence or objection.

FEDERAL ACTIVITIES _dZD DEVELOPMENT PROJECTS

CZM requests federal consistency determinations for all applicable
federal activities directly affecting the coastal zone, including:

Army Corps of Engineers: Applicable MCZM Policies

--proposed project authorization for Policies 1,2,4,5,7,10-13,
dredging, channel works, breakwaters, 17,19.
other navigation works, erosion con-
0 ~ ~~trol structures, beach replenishment
and dams within the coastal zone and
or in rivers directly discharging
into coastal waters.

--proposed acquisitions within the Policies 2,24
coastal zone.

Department of Interior:

--Massachusetts CZM reserves the right Policy 9 and other policies
to review proposed Bureau of Land referenced therein.
Management OCS Lease sales, at such
time as the question of whether or not
lease sales are eligible for consistency
review has been resolved.

--proposed National Park Service acqui- Policies 2,24
sition within the coastal zone.

--proposed U.S. Fisheries and Wildlife Policies 2,24
acquisitions within the coastal zone.

Department of Defense:

--location and design of new or en- Policies 1-7, 10-13
larged defense installations within
the coastal zone.

148

Department of Transportation:

--location and design of new or Policies 1-7, 10-13
enlarged Coast Guard stations,
bases and lighthouse within the
coastal zone.

--location and design of aviation Policies 1-7, 10-13
communication and air navigation
facilities within the coastal
zone.

General Services Administration:

--location and design of proposed Policies 1-7, 10-13
federal government property ac-
quisition and building construction
within the coastal zone.

--disposal of surplus federal lands Policies 1-7, 10-13, 24
within the coastal zone.

Amtrak, Conrail:

--railroad, expansions, new con- Policy 26
struction, or abandonments within
or affecting the coastal zone.

(1) Federal agencies shall provide the MCZM office routine and timely
notification of all proposed activities and development projects
to be located in the Massachusetts Coastal Zone.

(2) MCZM and Federal agencies will develop additional lists of projects
that are likely to directly affect the coastal zone but are not
actually located in the state's coastal region.

(3) Notification shall:
a. be in writing and submitted at the earliest practicable
time, at a minimum, 90 days to final approval.
b. be submitted directly to the MCUM office.
c. indicate the involved agency's assessment of
its consistency with policies of the MCZMP.
d. describe the proposed action or project in
sufficient detail, including, as appropriate,
facility development plans, maps, engineering
drawings, or other data and information, so that the.
council may independently evaluate its consistency
with specific MCZM policies.

(4) The MCZM office shall notify in writing federal agencies proposing
activities and development projects, of its agreement or dis-
agreement with their consistency determination within 45 days of
receiving said determination and supporting documentation as
described under (3), c and d, above; provided that MCZM maywhere
necessary, request an additional 15 days to evaluate and respond
to federal agency determinations pursuant to NOAA regulations.

149

(3) Within the time limits provided f or A-95 review, MCZM shall
notify the Statewide Clearinghouses, appropriate federal agencies
and applicant of its objections, if any, to proposed projects.
Such objections will describe how the proposed project is
inconsistent with specific MCZM policies and shall recommend
alternative measures (if they exist) which would render the
project consistent with the MCZMP. Notification shall further
appraise the applicant agency of the appeal procedures set forth
under Subpart H- of NOAA regulations.

150

9.3 Summary of Federal Consistency Requirements for

Federal Licenses and Permits

Federal Licenses or Permits CZM Policy Requirements Scope of State and Federal
U.S. Army Corps of Engineers Regulatory Jurisdiction

Section 404, Federal Water When salt marshes, shellfish beds, dunes, barrier beaches and salt ponds re- Similar to Waterways
Pollution Control Act, permit stricted under the Coastal Wetlands Restriction Act, prohibit all dredging, Program (MGLA Ch. 91)
for discharge of dredged or filling, construction and discharge of pollutants except: construction of and Wetlands Program
fill materials in navigable piers on pilings, catwalks, boathouses, boat channels for single family use, (MGLA Chi. 131, S. 40).
waters. maintenance dredging, expansion dredging in port areas, expansion of existing
harbor channels where necessary and impacts on shellfish beds are minimized
beach replenishment, boat launching ramps, utility lines, driveways, main-
tenance or reconstruction of existing roads, and shoreline protection works.
In unrestricted wetlands, condition alterations and construction so as to
protect the seven interests of the Wetlands Protection Act. (Policy 1).
Prohibit mining, dumping, and permanent structures on seabed as required by
Ocean Sanctuaries Acts; condition other mining or open ocean construction
works to minimize adverse effects on water quality, recreational beaches,
fish and wildlife (Policies 6 and 9). Condition construction of solid fill
piers, bulkheads, shoreline protection works, and other works in coastal
waters so as to prevent disruption of circulation patterns, minimize ad-
verse effects on littoral processes and flushing rates, and allow for
anadromous fish passage (Policy 4). Condition location and treatment of
municipal outfalls so as to minimize impacts on water quality, shellfish
and recreation (Policy 3). Restrict new shipping channel development of 20
foot depth or more in non-designated port areas (Policy 7). Prohibit ex-
clusions of maritime-dependent industrial uses in designated Torts (Policy 7)
Minimize adverse effects on marine productivity, dredging and dredged
material disposal (Policy 5). Prohibit dredge material disposal in areas
for preservation or restoration/areas of Critical Environmental Concern
and prevent damage to characteristics cited in the designation of the area.
(Policy 2).

Section 10, River and Harbor --same as above-- - s a e s a b v -
Act of 1899, permit for
observation of alteration
in navigable waters of the
United States.

Section 103, Marine Protection, For dredging, filling and construction and discharge of pollutants into State lacks jurisdiction
Research, and Sanctuaries Act, saltmarshes, beaches, shellfish beds, dunes, and barrier beaches, see above beyond three-mile limit of
permit for transportation of summary of Policy 1. Prohibit dredged material disposal in APRa/ACECs. coastal waters, but permit
dredged material. (Policy 2). Minimize impacts of dredged material disposal (Policy 5). applications will be reviewed
to ensure consistency with
CZM policies, especially
with respect to spillover
effects on the coastal zone.

* 0 0

Section 4f, OCS Lands Act, Condition mining or construction works in the open ocean so as to minimize --same as above--
permit for artificial islands to the extent practicable, adverse effects on water quality, recreational
or fixed structure on outer beaches, fish and wildlife (Policy 9).
continental shelf.

U.S. Coast Guard

Permit for construction or For dredging, filling, construction and discharge of pollutants in salt Federal jurisdiction con-
modifications of bridge marshes, beaches, shellfish beds, dunes and barrier beaches, see above summary current with that of
structures across navigable of Policy 1. Prevent damage to characteristics cited in designation of Waterways Program
waters of the United States. APRs/ACECs (Policy 2). Condition construction of solid fill piers, bulkheads (MGLA, Ch. 91).
and other works in coastal waters so as to prevent disruption, of circulation
patterns, minimize adverse effects on littoral processes and flushing rates
and allow for anadromous fish passage (Policy 4). Prohibit exclusions of
maritime-dependent industrial uses in designated port areas (Policy 7).

Deepwater Port License Energy Facilities Siting Council (EFSC) to consider alternative coastal sites State lacks jurisdiction
and assess need, impact on port operations, changes in environmental impacts beyond the three-mile
over existing oil delivery systems, and other factors. Based on considerations limit, however Deepwater
of these alternatives and assessments and the balancing of supplying energy Port Act explicity gives
needs, protection of the environment, and lowest cost to the consumer, the authority to Governor
EFSC will approve, deny, or condition deepwater ports in the coastal waters of contiguous state to
of Massachusetts (Policy 8). approve or deny Deep-
water Port licenses.
N Environmental Protection Agency

National Pollution Discharge For dredging, filling, construction, and discharge of pollutants in salt EPA and the Massachusetts
Elimination System (NPDES) marshes, beaches, shellfish beds, dunes, and barrier beaches, see above Division of Water Poll-
permit. (Section 402, PL summary of Policy 1. Prohibit dredged material disposal, siting of new ution Control share re-
92-500). sewerage treatment facilities, and new industrial discharges in APRs/ACECs sponsibility for issuance
(Policy 2). Condition the location and treatment of discharges so as to of this permit. Federal
minimize adverse effects on water quality, shellfish, and recreation Consistency will be used
(Policy 3). Prohibit exclusion of maritime-dependent industrial uses in to ensure that EPA's re-
ports (Policy 7). Ensure consistency with Areawide Wastewater Management sponsibility for NPDES
(208) Plans (Policy 3). Minimize impacts on marine environment from OCS permits are consistent
related activities (Policy 9). with CZM policies.

Ocean Dumping permit (authority --see Army Corps of Engineers Section 103 permit above-- State lacks jurisdiction
exercised jointly with Army beyond three-mile limit
Corps of Engineers). of coastal waters, but
permit applications will
be reviewed to ensure con-
sistency with CZM policies,
especially with respect
to spillover effects on
the coastal zone.

Department of Interior

Permits for Pipeline Rights of Condition off-shore energy resource extraction or development and con- --same as above--
Way for oil or gas transmission struction of related off-shore facilities so as to minimize adverse impacts
on Outer Continental Shelf. on the marine environment, especially with respect to fisheries, water
quality, fisheries, and wildlife (Policy 9).

OCS exploration and develop- ---see above---- ---see above---
ment plans which describe
in detail federal license
and permit activities
(drilling, platform in-
stallation, gathering
lines, etc).

Federal Energy Regulatory
Comm.

Permits and licenses for Ultimate state approval for siting of major energy facilities rests with FERC jurisdiction similar
planning, construction, the Energy Facility Siting Council (EFSC). The Council has agreed to to that of Energy Facility
and operation of non- consider the CZM program as an expression of state environmental policy. Siting Council, except that
federal hydroelectric The EFSC also agreed to incorporate into Its own regulations a requirement FERC expressly mandated
power developments. that utilities provide to the Council an alternative coastal site, and in to require for water power
the case of non-coastal dependent energy facilities in alternative inland projects, the conservation
site. Additional assessment factors will also be incorporated into EFSC and development of land and
regulations. An application for an FPC or NRC permit or license will be water associated natural re-
H ~~~~~~~~~deemed consistent with the CZM program if the facility and site have sources at the project, such
secured EFSC approval. Other federal permits or as fish, wildlife and outdoor
licenses for construction of an energy facility will be deemed consistent recreation and the preservation
with the CZM program if they meet pertinent CZM policy requirements or if of historic, scenic and other
the EFSC overrides the condition or denial of a counterpart state permit aesthetic values of project
by issuing a Certificate of Environmental Impact and Public Need. (see areas. Applicant's Consistency
Policies 8 and 9 for further details). Statement will be approved, if
the facility and site are
approved by EFSC.

Certificates authorizing --- see above--- Energy Facility Siting
natural gas pipelines to Council also has jurisdiction
construct, extend, acquire over gas facilities; applicants
or operate transportation consistency statement will
and storage facilities be approved if the facility and
for transport of natural site have been approved by EFSC.
gas in interstate
commerce.

Authoritzation for import ---see above---- --same as above--
or export of natural gas.

Nuclear Regulatory Comm.

License for construction --same as preceding page-- Energy Facility Siting Council
and operation of nuclear (EFSC) has jurisdiction over
power plant. power plant siting; applicant's
consistency statement will
be approved if the facility and
site has been approved by EFSC.

Part III.

Probable Impacts of the Proposed Action
on the Environment: Impacts Directly
Resulting from Federal Approval

O~~~~~~~~~~~155
1 55

PART III

PROBABLE IMPACTS OF THE PROPOSED ACTION ON THE ENVIRONMENT

Significant environmental, social and economic impacts will result
from Federal approval of the Massachusetts Coastal Zone Management
Program. Impacts directly resulting from Federal approval fall into
four categories. First, an increase in funds and funding options will
permit State agencies to implement the Program through more effective
administration of existing management authorities. Second, Federal
approval will require that Federal government actions be consistent with
the management program to the maximum extent practicable. Third, approval
will signify that the State has an acceptable procedure to insure adequate
consideration of the national interest involved in siting of facilities
necessary to meet requirements which are other than local in nature.
While the State is not compelled to propose a program which accommodates
certain types of facilities, the impact of this procedure shall assure
such national interests are not arbitrarily excluded or unreasonably
restricted from the coastal zone.

Finally, Federal approval will insure continued State eligibility
to receive assistance under Coastal Energy Impact Section 308 of the
Coastal Zone Management Act. This would provide financial aid in
ameliorating the impacts associated with offshore oil and gas production
off the Massachusetts coast. Additional funding for other coastal zone
assistance programs such as interstate coordination, beach access,
island preservation, research, and training will also be assured.

In order to fully understand the impacts associated with Federal
approval, however, it is necessary to evaluate the probable impact
of program implementation by the Commonwealth. The following de-
scription of program impacts is divided into two chapters. The first
chapter summarizes the probable environmental ,social ,and economic im-
pacts of the program. The second chapter describes how each of the
State's management authorities will be administered differently under
an approved program and evaluates the specific impacts of these changes.

156

CHAPTER 10

SUMMARY OF PROBABLE ENVIRONMENTAL, SOCIAL AND ECONOMIC IMPACTS

A. SUMMARY OF ENVIRONMENTAL IMPACTS

The Massachusetts coastal zone constitutes a large, delicately
balanced ecosystem in which changes in any one part may cause alter-
ations in other parts. These causes and effects are linked through
geophysical processes (e.g., wave action, movement of currents and
tides, flow of surface water, and other hydrologic cycles) and bio-
logical processes (e.g., food chain links, reproductive cycles,
migration patterns, and habitat adaptation). The Massachusetts Coastal
Zone Management Program seeks to preserve key natural processes and
conserve biologically productive resources. Thus, implementation
of the program should have a generally beneficial impact on the
natural environment.

The key natural processes and resources that the program policies
are designed to preserve and respect are:

--littoral sand transport along the shore;

--flushing and circulation patterns in estuaries, coastal em-
bayments, and salt ponds;
--storm buffering functions of beaches, dunes, barrier beaches,
and salt marshes;

* -- ~~~~sail capabilities to filter and absorb wastes;

--salt marshes which promote habitat for wildlife and which,
through the production of detritus, are a primary source of
food for marine life;
--beaches, dunes, and barrier beaches which provide habitat
for wildlife;

--shellfish-beds;

--anadromous fish runs; and

--fishery resources.

By protecting certain key natural resource areas of the coast -
salt marshes, beaches, Iharrier beaches, dunes and shellfish beds,
in particular - the program will also help to preserve the coast's
esthetic qualities and the various types of recreational opportunities
available along the shore. By preserving these key natural resource
areas the program will also discourage further inappropriate development
in hazardous areas and preserve natural buffers against hazards.

157

While the program seeks to preserve natural processes and resources,
the program also recognizes that the coast will continue to experience
significant new growth. Marine dependent energy development, offshore
mineral mining, and port and harbor development, and their attendant
dredging, spoil disposal, and bulkheading activities, will be permitted
in certain locations in the coastal zone, so long as potential adverse
impacts are addressed and minimized to the extent practicable. Such
activities will have a variety of adverse impacts, including reduced
marine productivity as a result of habitat destruction and increased
turbidity, deterioration of coastal visual resources, and interference
with recreational uses of the coast.

Most types of major development located in or immediately adjacent
to tidal areas will be regulated by the state directly, or by local
conservation commissions subject to state review. The regulation of
most other types of development in the coastal zone, with the exception
of energy facilities, will remain the responsibility of local governments.
Thus a variety of activities, that may not individually, but in the
aggregate may have an adverse impact on the coastal zone will not be
addressed by the management program.

The Coastal Wetlands Restriction Program will be employed to
protect ecologically significant resource areas and natural hazard buffer
areas. The Inland Wetlands Restriction Program will be used to protect
anadromous fish runs located in Areas of Critical Environmental Concern/
Areas for Preservation or Restoration, once these are formally designated
by the Secretary. This should serve to protect coastal and marine
fisheries resources.

The Wetlands Protection Act and state Tide~lands licensing will be
relied upon to protect ecologically significant resource areas and natural
hazard buffer areas against inappropriate development. Construction of
solid fill structures in estuaries and embayments shall be required to
minimize interference with water circulation and sediment transport, and
preserve coastal water quality and marine productivity. This should have
beneficial impacts on marine productivity as well as the visual quality
of water bodies.

In addition, conservation commissions shall approve permits for private
flood or erosion control only where there will be no adverse effects on
adjacent properties or down coast areas. Uniform criteria for evaluation
of proposed projects will be contained in the revised regulations. These
should eliminate some of the adverse ecological consequences of inappropriate
flood or erosion control projects and protect down coast landowners from
economic loss.

158

The other 'types of activities regulated under the Waterways Program
may have substantial adverse environmental effects. Dredging may generate
Is ~sufficient amounts of suspended material to harm organisms by blocking
light necessary for photosynthesis and by clogging the gills and siphons
of fish, molluscs, and other marine fauna. Disposal of dredge material also
increases turbidity and may destroy benthic orgamisms. Marine construction
frequently results in the loss of coastal habitat areas. The policies on
dredging disposal will serve to better protect the marine environment during
construction.
The policies on historic districts and recreation areas will help preserve the
integrity of these areas and should have positive environmental benefits. The
program is expected to have little influenceon the noise level of the coastal zone.

In summarizing the environmental implications of the Program, a
significant point is that several elements of the Program will
not be in effect, or not completely in effect, at the time of Program
approval. Thus the positive and negative environmental impacts of these
elements will begin to be felt only sometime following Program approval.
For example, the Program proposes to restrict the rest of the State's
wetland areas over the next three to f ive years; thus,
the positive implications of prohibiting intensive develop-
ment in these typea of areas will expand as the restriction program pro-
ceeds. During the interim the less stringent but still quite protective
provisions of the Wetlands Protection Act will apply. Also, the various
use prohibitions and other regulations in Areas of Critical Environmental
Concern/Areas for Preservation or Restoration (See Policy 2) will only
take effect once these areas are designated by the Secretary of Environ-
mental Affairs. A decision on all ten nominated areas will be made
in the first year after Federal approval of the Coastal Zone Program.

B. SUMMARY OF SOCIAL AND ECONOMIC IMPACTS

The Massachusetts Coastal Zone Management Program seeks to conserve
and protect key ecological coastal resources, while it advocates increased
development of already developed areas. Although the Massachusetts Program
does not anticipate a decline in the present rate of development in the
coastal zone, the Program may shift some development activity inland.
This may affect property values, property tax revenues and resource
extraction or exploration. The program will provide an improved decision-
making process for determining coastal land and water uses, siting of
facilities in the national interest and generally provide increased
predictability about what can and cannot occur along the coast.

Maritime dependent activities that bring sustained economic growth
will be given highest priority for coastal locations that have the resources
and facilities needed to support them. General development also benefits
from a coastal location, but could locate in other areas. General
development that involves dredging or filling will be managed in an effort
to protect resources valuable to maritime dependent growth.

New Development Impacts

is ~~~New development is expected to continue at its present rate, but will
be encouraged to occur in existing developed areas or adjacent areas.
Development is restricted in areas under the Wetlands Restriction Program
and permitted subject to certain conditions in areas below mean high tide,

159

areas covered by the Wetlands Protection Acts, where soil cannot support
sewage disposal systems, and near designated recreation or historical
sites.

This leaves approximately 120,000 undeveloped acres or 21 percent of
the coastal zone immediately suitable for development, without constraints
beyond local zoning, the State Environmental Code, federal emission
standards, Fish and Wildlife Coordination Act, Federal Water Pollution
Control Act and other relevant federal laws. Thus, many decisions con-
cerning economic growth and development will be made at the local level,
and future impacts will vary.

Over the long run, as land suitable for development without sewers
and State roads is exhausted, the need for public investment will become
more critical to future development. Thus, a key impact of the plan will
be for the public sector to have an increasing involvement in determining
optimum growth in the coastal zone. Since the plan seeks to concentrate
development in/and adjacent to developed areas through public investment
policies, development may occur at higher densities and in fewer places.

The conservation of sensitive coastal resources advocated may make
existing and future development more desirable and may raise property
values. Present property owners would benefit economically while potential
future residents might suffer as a result of increased housing costs.

Fisheries Impacts

The commercial fishing industry is currently a source of full and part-0
time employment for 15,000 persons and sport fishing is an equally important
activity. In 1974, approximately two million sportsmen fished in Massachusetts
coastal waters. Massachusetts coastal zone management policies are designed to
conserve habitats and biological processes upon which the fisheries depend.
Furthermore, the program promotes the funding of harbor dredging, pier
construction, and other harbor projects needed for the benefit and expansion
of the fishing industry.

These policies will have a positive impact on the fisheries related sector
of the state economy. Without such improvements, the benefits made available by
an extendedULS f ishing zone would not be as fully realized in Massachusetts.

Ports and Harbors Impacts

Other waterfront dependent industries in Massachusetts directly
employ some 35,000 persons. These industries include ship and boat
yards, water transportation services, tugboat operations, marine con-
struction, marine terminals, trucking firms, and waterfront industries
relying on maritime shipping of raw materials or finished products.
Offshore oil and gas development may bring additional maritime trade to
Massachus etts.

The Program will direct redevelopment funds into existing ports and
harbors and approve funds and permits for dredging projects according to
policies 7 and 19. Through the waterways licensing authority the coastal0
program will attempt to prevent the exclusion of present and proposed
maritime-dependent uses in port areas, while permitting other uses which
do not represent an irretrievable commitment of sites and which do not

160

. ~preempt foreseeable maritime-dependent industrial uses. This policy
should have beneficial impacts on maritime sectors of the economy such
as fisheries and shipping. Its ef fects may be somewhat limited, however,
since certain projects can occur in port areas without any opportunity
for State review of maritime dependency.

Impacts on Individual Coastal Land Owners and Uses

GZ1M policies advocating the conservation of certain coastal resources
(e.g., marshes, beaches) are consistent with existing State laws and
therefore do not alter the development rights of individual property
owners. Furthermore, no owner's rights are redistributed to other people;
i.e., no access rights are conveyed through the plan without just com-
pensation. However, some individual owners will experience negative impacts,
though there are judicial processes to allow compensation.

The CZM program advocates the protection of the marine environment
by conditioning or restricting dredging, pollution, filling, bulk-
heading etc. Individual land owners may be burdened in the short run
through such conditions, but over the long run, the CZM plan will provide
significant benefits to most coastal land owners by promoting a high
quality environment.

Local Government Budgets

Many policies of the CZM program advocate efficient use of public
funds, better utilization of sunk investments, and increased public benefits
for public investments. For example, public investment policies encourage
the concentration of new development services such as sewers and the high
priority revitalization of existing developed centers. Recreation
policies advocate improved transportation to and maintenance of existing
facilities.

The immediate impact of these policies will be the availability of
Federal/State money into local communities for projects and for new
planning. In the short run, this may cause an increase in town expend-
itures where "matching" funds are required. If the Program is successful
in improving the overall efficiency of public investments, local expend-
itures should be reduced in the long-term.

Property tax revenue may be reduced because of conservation restrictions
or constraints on industrial development. This may be partially compensated
by increases in maritime dependent industry, payment in lieu of taxes
for recreation areas, increases in the value of developable land, or
land made developable through public investments.

State Institutions

Several EOEA agencies (e.g., the Wetlands and Waterways Programs in
the Department of Environmental Quality Engineering) will have expanded
responsibilities under the coastal program. Adjusting to the added review
steps that will be required to determine the permissibility of certain
projects may cause some temporary delays in permit review and program
development. In the long run, however, coastal regulatory and management
decisions should be made more efficiently as a result of DEQE computer
tracking of permit reviews, streamlining of DEQE permitting procedures

161

and improved communication and coordination among state agencies. Improve-
ments in the decision-making process and increased staff capabilities
will reduce the amount of time taken up by permitting and licensing i
procedures.

Under Federal Consistency, proposed projects involving federal
funds or requiring a Federal permit or license, will have to be considered
in light of Massachusetts' coastal policies. Because assistance will be
available from the Massachusetts Office of Coastal Zone Management in
interpreting the Program, it is expected that few projects will be
delayed in making a consistency finding. The consistency determination should re-
quire no major delays since it can be satisfied either automatically or
shortly after granting of a State permit or through the established A-95
review process. Added steps will be required only in the infrequent instances
where applications for a Federal license or permit do not also require a
State permit; in these instances, the applicant will be required to prepare
a certificate of consistency.

The Coastal Program should also improve communication between the
public and EOEA agencies. For example, the list of projects in the
Environmental Monitor and its distribution will be expanded. Regional
and state level citizen advisory groups will participate in the evaluation
of the program and in developing the future course of the program.

162

Chapter 11

is ~THE PROBABLE IMPACTS OF APPROVAL ON EXISTING MANAGEMENT AUTHORITIES

The second chapter of this discussion of the probable impacts of
Federal approval of the Massachusetts Coastal Program is organized in terms
of the various management authorities that will be relied on to implement
the program. The description of impacts is based primarily on the probable
effects of the policies on key management authorities. For
reference, the twenty-seven program policies are cross-referenced with
the appropriate management authorities in Part II, Section 6.5.

Since the Massachusetts Coastal Program will be based on existing laws
and procedures, the Program will basically continue and intensify the
present impacts of existing state programs. In order to distinguish
present impacts from future impacts under an approved Program, the dis-
cussion is divided into two sections. "Present Operation" describes how
each authority is presently administered and its impacts. "Coastal Program
Impacts" describes how the authorities will be implemented differently
under the Program and the environmental or socio-economic impacts that
will result from this differential.

A. WETLANDS RESTRICTION PROGRAM

The Commonwealth through the Coastal and Inlands, Wetlands Restriction
Acts is authorized to place restrictive orders on property owners' deeds
prescribing certain prohibited and permitted uses. All beaches, dunes,
salt marshes, shellfish beds, and salt ponds in coastal Massachusetts
may be restricted under the Coastal Wetland Restriction Program, except
for those in designated port areas, those under
Metropolitan District Commission control, and portions of barrier beaches
which no longer exhibit characteristics of naturally functioning barrier
beaches. The Inland Restriction Program will also be used to protect
anadromous fish runs in certain locations.

Present Operation: Salt marshes, shellfish beds, beaches, dunes, and salt
marshes comprise approximately 70,000 acres, or 12% of the coastal zone.
Since the Coastal Restriction Act was passed in 1965, 30,000 acres (45%)
have been placed under restrictions. These restricted areas are located
in 25 coastal communities (30% of all coastal communities) particularly
an the lower Cape, Martha's Vineyard, the north shore of Buzzards Bay,
from Cohasset to Duxbury, and from Salisbury to Essex. As a result of
different priorities prior to preparation of the Massachusetts Program,
beaches and dunes generally. were not restricted in the first communities
brought under the restriction program.

Although administered pursuant to a separate Act, the Inland Restric-
tion Act is applied jointly with the Coastal Restriction Program by the
Department of Environmental Management. As a result, all wetlands in a
town are generally restricted at the same time.

Based on past experience, the average cost of applying restrictions
is approximately $7,200 per community, plus the salary of a technical
staff person. It is estimated that about 3 communities can be restricted
per year by one staff person.

163

Coastal Program Impact: Federal funding will allow the Commonwealth to
hire additional staff which should increase the rate at which wetlands
are restricted. Areas will be restricted on a priority basis in order to i
protect Areas of Critical Environmental Concern/Areas for Preservation or
Restoration, once these are designated by the Secretary of Environmental
Affairs, and to protect wetlands threatened by development in urban areas.
It is anticipated that the rest of the State's coastal wetlands will be
restricted in three to five years.

The primary new impacts of the Restriction Programs under an approved
Coastal Program will be those resulting from an increase in the pace of the
restriction process. All of the areas that will ultimately be restricted
already are protected in terms of the seven interests of the Wetlands
Protection Act. Environmental benefits will result from placing these
areas under the more stringent protection of the restriction program
earlier than would occur in the absence of Federal funding. Also, certain
landowners may be preempted from receiving profits they might have gained
as a result of not having had their land restricted. Finally, greater
equality will be achieved among landowners if the restriction program is
accelerated since all owners of salt marshes, beaches and so on will be
treated on a more equal basis.

Another important change is that in the future all of the beaches,
dunes, salt marshes, shellfish beds, and salt ponds in coastal towns will
be restricted whereas in the past beaches and dunes were generally not
included. Thus, under the coastal program, the Coastal Wetlands Restriction
Program will provide more extensive protection of coastal resources.

B. WETLANDS PROTECTION PROGRAM

The Wetlands Protection Act gives local conservation commissions
authority to review all proposed projects within 100 feet of the 100
year flood plain or, if further landward, within 100 feet of the bank of
any beach, dune, flat, -marsh, meadow or swamp. If the conservation com-
mission, or the Commissioner of DEQE, (on appeal) finds that the proposed
actions present a significant impact to the interests of the Act (public
and private water supply,ground water supply, flood control, storm damage
prevention, prevention of pollution, protection of land containing
shellfish), an order of conditions is imposed to regulate the project
and protect the interests of the Act. A conservation commission's Order
of Conditions may be appealed to the Commissioner of DEQE, or the
Commissioner himself /herself may invoke the appeal process.

Present Operation: In 1974, regulations were promulgated by DEQE to
assist local conservation commissions in implementing the Act. These
regulations provide guidance on the type of information to be submitted
with an application, how the application is to be processed, and whether
a proposed action will affect the seven interests of the Act. These
regulations do not indicate how different types of use should be managed
in different locations to achieve the objectives of the Act.

Since original jurisdiction was delegated to local conservation
commissions in 1972, approximately 3,900 Orders of Conditions had been
issued through March 1976, and 322 Superseding Orders have been issued0
by the State. Thus, only about 10% of the conservation commissions' Orders
of Conditions were formally overruled by the State. The-majority of these

164

cases were appealed by the applicant, while few appeals were
O ~~initiated by the Commissioner.

it is difficult to evaluate the impact of the Wetlands Protection
Act without comprehensive information on the Order of Conditions issued
throughout the Commonwealth. In areas that are restricted under the
Restriction Program, the Wetlands Act represents additional regulatory
control. The Wetlands Act serves to protect ecologically significant
resource areas that have not yet been restricted, as well as other coastal
areas not eligible for the restriction process.

The Wetlands Project at the Massachusetts Audubon Society reviewed
the 125 Wetland Orders that were appealed to the Department of Environmental
Quality Engineering during 1975. Since this study represents the only
attempt to date to evaluate the effectiveness of the Wetlands Protection
Program, it is appropriate to describe some of the major conclusions of
the study:

-DEQE has sought strict adherence to appeal procedures, often denying
an appeal or declaring it null and void because of failure to conform
adequately with the rules. Eleven of the 125 appeal cases were denied
because the request came beyond the time period for appeal.

-DEQE has been inconsistent in dealing with violations of the Wetlands
Protection Act. For example, an applicant illegally placed fill,
changed the grade, destroyed vegetation and built a canoe pier,
and DEQE did not bring legal action. In another case, pipes were
placed illegally in a pond, but DEQE allowed the project and did
not order them removed. Yet in certain instances DEQE ordered
natural conditions to be restored.

-Most of the appeal cases dealt with inland, freshwater wetlands
involving streams and ponds. Only 9 percent of the appeals
evaluated involved coastal wetlands. (This suggests that im-
plementation of the Protection Act has aroused greater contro-
versy in inland areas than along the coast).

-DEQE has supported the control of activities occurring in an upland
area which would pollute a wetland. For example, a residential septic
system was not allowed because it would have polluted freshwater
recharge areas and contaminated ground water. These recharge areas
were crucial for the operation of a trout hatchery.

-The major grounds for appeal, although not clearly specified, seem
to vary. Flooding and pollution problems were most often mentioned.
Yet, other issues were also raised: water supply loss, erosion,
and sedimentation siltation, surface run-off, storm water damage,
wetland integrity, aesthetics, recreation, and dune destruction.

In summary, the Wetlands Protection Program appears to have suffered
from uneven administration. One cause of this is the absence of explicit
State standards or guidelines for local Conservation Commission decisions,
although some regulations exist and limited guidance is given to local
conservation commissions. A second cause is that the Department presently
lacks adequate staff to review local Conservation Commission Orders in
order to achieve Statewide consistency in administering the Program.
165

Coastal Program Impact: Federal approval of the Massachusetts Coastal
Program should help to correct some of the deficiences of the present
program with beneficial environmental consequences as well as increased
predictability for landowners.

A program review board has been established to review the Act's present
regulations. Revised regulations are expected to be
promulgated in final form in June 1978, following program approval.
These regulations should assist local commissions in determining the
permissibility of particular uses, and help to ensure the implementation
of various Coastal Program policies.

Federal funds will permit the hiring of additional staff in DEQE
regional of ficies to provide technical assistance to local commissions
and to review Orders of Conditions. This should help to insure greater
Statewide uniformity in the implementation of the Protection Act, and
in turn, help to establish greater equity in the administration of the
Act.

C. THE WATERWAYS PROGRAM

The Waterways Program has authority over filling, wharf construction,
bridges and pipelines in tidewaters. The Commonwealth, as trustee over
public lands below low waters, issues revocable licenses granting per-
mission for construction that may interfere with public rights in these
lands. While land between low and high water marks is in private owner-
ship, these lands are subject to reserved public rights for fowling,
fishing and navigation. The Waterways Program also funds such public
works as wharf improvement, public piers, jetties, bulkheads, shore0
protection works, channel dredging and maintenance, dams and wreck
removals.

Present Operation: The Waterways Program has been administered to date
without formally adopted rules and regulations.

In 1976, the Waterways Program issued approximately 150 licenses,
over one-half involving coastal related projects. The Program has generally
approved projects so long as they do not impede navigation, are
structurally sound, and are not disapproved by any State reviewing agencies.
In practice, the Waterwavs Program does not issue licenses until projects
are approved by the local Conservation Commission, or if appealed by the
Commissioner of Environmental Quality Engineering. Conditions are sometimes
imposed upon licenses, and payment is required if the project displaces
tidal water or is located on Commonwealth lands (below low tide).

Coastal Program Impact: Under an approved 306 Program, Federal funding will
be used to support additional DEQE staff to review Waterways license
applications. In addition, regulations will be promulgated for the
evaluation of proposed dredging, filling and marine construction activities.

In review of license applications, marine construction will be approved
if, in estuaries and coastal embayments, flushing rates and capacity are
not reduced; water quality, marine productivity, and anadromous fish
runs are not adversely affected; and alteration of wave generated littoral0
currents will not exacerbate or induce shoreline erosion or adversely
alter depositional. patterns. In designated port areas the applications will
be approved only if present maritime dependent industrial uses are not excluded.

166

The Waterways Program and the CZM staff have been working to develop
a ranking system for the allocation of State Funds for dredging and
* ~shoreline protection projects. It is proposed that funding be provided
for dredging only in developed port and harbor areas, and that maintenance
dredging be given priority over any new dredging. This should minimize
the serious adverse environmental consequences of dredging in undisturbed
coastal areas, while permitting dredging necessary to support maritime-
dependent industry.

Non-structural measures will receive higher priority for public funds
than structural solutions to shoreline erosion, except where structural
solutions would produce widespread public benefits and would minimize
adverse environmental affects. Thus many of the adverse economic and
environmental consequences of structural shoreline erosion control measures
will be avoided.

D OCEAN SANCTUARIES

The Commonwealth of Massachusetts has established five Ocean
Sanctuaries to protect the ecology and the appearance of the ocean. All
State waters below mean low water are included except for Mt. Hope Bay
and that part of Massachusetts Bay from Lynn through Marshfield. On
January 7, 1978 the Massachusetts legislature combined the five Acts
into one codified law.

Present Operation: In general, such activities as the removal of sand,
gravel, or minerals, dumping or any new waste discharge hre prohibited.
However, a broad class of activities are exempt from these prohibitions.
The laying of cables approved by the Department of Public Utilities, pro-
jects authorized under the Waterways Program or other improvements authorized
by other State or Federal agencies are not prohibited. Essentially, the
Ocean Sanctuaries Statutes provides no additional management authority
in addition to the Waterways Program, but does create some new permitted
and prohibited uses and standards for other programs.

No permit is required from the Department of Environmental Management
in order to proceed with an activity in an Ocean Sanctuary. It is expected,
however, that individuals and other agencies will confer with the Departxaent
to ensure compliance, with the terms of the statutes.

Coastal Program Impact: Regulations are expected to be promulgated in
tinal form for the Ocean Sanctuaries Program by June, 1978. These
regulations will be based on the recently recodified statute.

In terms of impacts, the Ocean Sanctuaries can be assumed to have

impacts comparable to those described under the Waterways Programs.

E. ENERGy FACILITY SITING COUNCIL

The Energy Facility Siting Council has jurisdiction over determining
the need for and approval of locations for electric generating, gas and
oil facilities. While energy facilities generally require various State
agency permits prior to construction, the Council has the authority
to override State or local denials of necessary permits.

167

Present Operations: Energy-related development has significant environmental
impacts in the Massachusetts coastal zone for two reasons. First, energy
facilities frequently require a coastal location because of their cooling
requirements or because they are designed to handle energy resources im-
ported into the State. Second, energy facility construction and operation
have a variety of significant deleterious environmental effects.

For example, electric generating plants cause thermal water pollution
and may adversely impair the scenic values of coast; fossil fuel plants
produce increased air pollution while nuclear plants pose various health
and safety risks. Oil and gas transmission, storage and processing
facilities create various land use conflicts, pose safety hazards, and
can cause increased air pollution.

The Energy Facility Siting Council was established in 1972. The
State's energy policy, established by the law creating the Council, calls
for the provision of a necessary energy supply for the Commonwealth with
a minimum impact on the environment at the lowest possible cost. Regulations
for the review of energy facility applications have been adopted by the
Commonwealth.

As an example of the types of facilities reviewed by the Council, in
fiscal 1976, the Council considered approximately thirty proposed facilities
including 3 electric generating stations (2 nuclear), 2 liquid natural
gas facilities, I oil storage tank farm, and numerous high voltage electric
transmission lines. The authority of the Council to supercede State or
local permitting authorities has not yet been tested, although one case
is currently pending.

Coastal Program Impacts: Basically, the Energy Facility Siting Council
will operate under an approved coastal program as it has operated in the
past. However, there will be several changes.

First, the Council has agreed to recognize the final program as a
statement of the health, environmental, and resource use and development
policies of the Conmmonwealth, and to evaluate proposed facilities for
consistency with these policies.

The Council has agreed to require that for any proposed energy
facility, the applicant provide information on at least one other
alternative site. For non-coastal facilities, applicants must also
provide information on a alternative inland site. Although this policy
does not insure that future energy development will have less serious
adverse affects, it does require applicants to consider the environmental
implications of locating energy facilities at various alternative sites.

Any permits or licenses issued by the Council will be considered
consistent with the Program for purposes of Federal Consistency. In the
case of the Pilgrim II nuclear power plant, the EFSC has determined that
the facility is "grandfathered" under its legislation. State approval
for Pilgrim 11 was granted prior to formation of the Council. CZM will
respect the EFSC determination and will not require federal consistency
review of this facility. i

1683

F. MASSACHUSETTS ENVIRONMENTAL POLICY ACT (MEPA)

The Massachusetts Environmental Policy Act established an environmental
review process for State actions, projects with State funding contributions,
or projects requiring permits or licenses from State agencies. The intent
of MEPA is to improve environmental planning and the design of activities
through full disclosure of the environmental consequences of State actions.

Present Operation: MEPA has been an important instrument of environmental
protection in Massachusetts. The environmental assessment requirement has
discouraged the planning of activities that would degrade the environment.
It is also possible to site various instances in which the MEPA process was
either the chief or a contributing factor in a decision by an applicant to
modify a proposed action to minimize environmental damage, or in an agency's
decision to deny a permit application.

Certain types of activities are categorically exempt from MEPA, with the
result that these activities may not receive adequate environmental review.
Exempt activities include:

-maintenance or replacement of existing facilities, or structures;

-construction and location of single, small, new facilities or structures;

-minor alterations to the condition of laud, water and/or regulation
and including areas less than two acres in extent (one acre in
wetlands);

-activities not exceeding thresholds of adverse environmental impact,
established by State agencies with the approval of the Secretary
of EOEA;

-permit determinations or wastewater treatment construction grants
by the Division of Water Pollution Control;

-Wetlands Protection Orders issued by local Conservation Commissions
and not appealed to the Commissioner of DEQE.

From the inception of the MEPA process on July 1, 1973, through June 30, 1977,
2715 Environmental Assessment Forms were filed with EOE.A. The following
list shows the number of assessment forms received annually:

1973 (last 6 months) 494
1974 888
1975 795
1976 330
1977 (first 6 months) 208

The reduction in the number of forms each year is the result of successful
efforts by the MEPA staff to eliminate minor projects not requiring en-
vironmental review from the process, as well as combining related activities
for comprehensive environmental review. A detailed assessment of the MEPA
process through October, 1975 was prepared by several graduate students

169

at Harvard University, Department of City and Regional Planning. * This
report contains much valuable information relating to the affects of the
MEPA process. Based on the 1942 assessment forms evaluated by them,
these students made the following findings.

-The State agency with the largest number of submissions was the
Executive Office of Environmental Affairs.

-The division with the largest number of submissions was the
Highway Division within the Department of Public Works.

-One-third of the submissions under MEPA involve State permitting
decisions, while two-thirds represent direct State actions.

-EOEA has concurred with approximately 90 percent of the negative
assessment submissions, and with 92 percent of the positive sub-
missions. (This suggests that the MEPA staff conducts careful
review of each environmental assessment form submitted.)

-The types of activities submitted for MEPA review varied widely.
The four most common activities were: Housing Development (13
percent); Highways and Bridges (10 percent); Schools (9 percent);
and Roads, Trails, and Walkways (6 percent).

Coastal Program Impacts: The Massachusetts Environmental Policy Act will
be relied on generally to insure that State and State-permitted actions
are consistent with Program policies. However, MEPA will also be utilized
in several specific ways to achieve the objectives of the Program.

First, categorical exemptions for smaller projects under MEPA will be
removed in Areas of Critical Environmental Cocnern/Areas for Preservation
or Restoration, thereby providing fuller disclosure of the consequences
of State and State-permitted activities in these areas. This should help
to provide for more comprehensive and more focused environmental management
as intended by the designation process.

Second, MEPA will be employed to review State and Federally funded
public works projects within the 100 year coastal floodplain so as to not
exacerbate existing hazards or damage natural buffers, to provide safety
from flood and erosion related damage, and so as not to promote growth
and development in such areas.** Although MEPA itself does not provide
authority to the M4EPA unit to halt inappropriate projects, full disclosure
of environmental consequences will help to discourage such projects. (The
funding agency, however, is charged by Section 61 of MEPA to ensure that
damage to the environment is minimized).

Finally, projects with State funding contributions or projects re-
quiring licenses or permits, will be reviewed under MEPA to determine
whether State agencies have acted to minimize potential adverse impacts
of development near designated historic sites or districts, or near existing

*Batchelor, Clara; Thomas Pelham; and Dorrit Sertios, An Analysis of the
Environmental Review Process within the Executive Office of Environmental
Affairs, Commonwealth of Massachusetts, February, 1976.

**Although actions by the Division of Water Pollution Control are exempt
from M4EPA, the permits for a wastewater facility that may be required from
other state agencies are not exempt.
170

public recreation areas. This policy should have beneficial affects on the
recreational, esthetic and economic values of these areas or sites. It
should be noted, however, that the Program will be unable to control develop-
ment adjacent to historic or recreation areas that is not subject to State
permitting review or involve State funds.

G. DESIGNATION OF AREAS FOR PRESERVATION OR RESTORATION/AREAS OF CRITICAL
ENVIRONMENTAL CONCERN.

The Massachusetts Secretary of Environmental Affairs is authorized to
designate Areas of Critical Environmental Concern by Chapter 21A, Section
2(7), and the Federal Coastal Zone Management Act requires States to develop
a process for designating Areas for Preservation or Restoration. For the
purpose of reviewing the Massachusetts Coastal Program these two types of
areas are identical. The purpose of designation in the Massachusetts
Program is to utilize Statewide coastal authorities in order to provide
focused management attention in selected coastal resource areas which are
unique for their contribution to marine productivity.

Present Operation: One such critical area has been designated in an inland
marsh and water supply area. The CZM program represents the first com-
preh-ensive planned approach to critical area designation by resource type
in Massachusetts.

Coastal Program Impact:

CZM has recommended that the Secretary designate 10 AiPRs/ACECs (see Policy (2)
Part II). Detailed descriptions of these areas may be found in the Coastal
Atlas.

Since no APRs/ACECs have been designated, this discussion describes impacts
that will occur once these areas are designated and not as of the time of
program approval. The State will designate or deny all 10 within the first
year of the program.

As indicated, under MEPA, categorical exemptions for smaller projects
will be removed in these areas once they are designated. Although MEPA is
not a regulatory authority, this should provide an additional degree of
protection for these areas by requiring disclosure of the environmental
consequences of all proposed activities.

The following activities will be prohibited within designated Areas
for Preservation or Restoration/Areas of Critical Environmental Concern:

1. New industrial discharges and the discharge of hazardous sub-
stances, '\once the water segments have been classified anti-delaradation)

2. New dredging except for maintenance of existing channels or for
enhancement of shellfish and other marine food productivity;

3. Disposal of dredge spoil, except in instances, when the spoil can
be used for beach nourishment and/or dune stabilization; or marsh
is ~~~~creation;

4. Direct discharges from new sewage treatment facilities (once the water
segments have been classified anti-degradation);

171

5. The siting of new municipal sewage treatment plants.

Further, these activities will be prohibited in areas adjacent to
APRs if they would have an adverse impact on the AP'R. These prohibitions
should protect these significant ecological complexes against the most
likely types of intensive development that might be proposed.

In addition, once ApRs/ACECs are designated, they will receive priority
application of the coastal wetlands restriction program. The importance
of this policy may be limited by the fact that no areas have been formally
designated to date. Moreover, this priority system will need to be
coordinated with the current practice of restricting wetlands on a town-
by-town basis.

Finally, some contiguous land, as well as anadromous fish runs, will
be restricted in AI'Rs/ACECs. This should provide greater protection for
APRs/ACECs by permitting control of activities in upland areas that might
adversely affect the areas. Landowners in APRs/ACECs may feel that a
disproportionate amount of their land will be restricted by this policy.

H. PUBLIC INVESTMENTS IN SEWAGE AND TRANSPORTATION FACILITIES

The Massachusetts Coastal Program will use public investments in sewage
and transportation facilities to provide incentives for -new development to
locate in existing development centers or adjacent areas. This policy
represents the Sttes primary growth management authority within the coastal
zone landward of the jurisdiction of the Wetlands Protection Act.0

Present Operation: The State's "106" Priority List for sewage treatment
facilities is currently limited to facilities serving already developed
areas, consistent with EPA policy. Thus, the coastal program will be
genrally consistent with present State and Federal practices. Transportation
planning in Massachusetts, howewr, is not currently bound by an analagous
policy, although the possible growth-inducing effects of transportation
improvements are addressed in the Corridor Planning process conducted by
BTP&D and RPAs. The state's transportation network in the coastal zone
is virtually complete relative to sewage facilities.

Coastal Program Impact: The Massachusetts Coastal Program has developed
a set of priorities for State and Federal investment in waste treatment
facilities in the coastal zone which:

1. Accord highest priority to projects in existing urban areas
or community centers where water quality problems merit
rehabilitation or new construction of treatment and collection
facilities;

2. Accord next highest priority to projects proposed for contigu-
ous developed areas, which are as yet unsewered, but whose
water quality problems merit implementation of structural
solutions; and

3. Accord lowest priority to projects proposed for undeveloped
areas.

Approximately 25 facility projects that are already in the advanced

172

stages of planning are deemed to be consistent with the program.

Six major transportation projects are cited as consistent with
the Program. Because the projects listed are the only major ones
currently planned by the State, the coastal zone program will have
little impact. By including these projects as consistent with the
Program, it provides a greater predictability to the coastal landowner
and user of where major transportation facilities will be built.

In assessing the impacts of the Program's public investment policies,
it is important to recognize that infrastructure investments represent an
indirect tool to manage the location of development. By providing necessary
services at a relatively low cost, infrastructure investments may encourage
development to locate in certain locations. On the other hand, the absence
of infrastructure will tend to discourage development, except at relatively
low densities (less than 4 units/acre).

Within these limitations, these priorities for major infrastructure
investments in the Commonwealth should have numerous beneficial impacts
as well as certain adverse impacts. The benefits include reduced pressure
for development of outlying critical environmental resources, such as
wetlands and floodplains; possible preservation of open space and
agricultural land; revitalization of urban or community centers; improved
efficiency or prior public investments; and improved energy efficiency.
On the other hand, concentrating growth can have certain adverse impacts.
For example, air quality could be degraded if too many industrial sources
of pollution are concentrated in one area or if clustering does not reduce
vehicular use.

The Program's policies, including those relating to public investments,
are not expected to reduce the rate of development in the coastal zone.
However, it is expected that new development will be concentrated to at
least some degree in already developed areas. As a result, while some
landowners may receive unexpected profits, others might receive smaller
profits from commercial or residential development than they might
otherwise have received.

1. OPEN SPACE ACQUISITIONS AND PROTECTION

The Massachusetts Program intends to rely on a variety of mechanisms
to acquire permanent open space in the coastal zone. These include the
voluntary Land Conservation Restriction Program, the Land and Water
Conservation Fund of the Department of the Interior, funding under Section
315 of the Coastal Zone Management Act, and the State Self 'Help Program.
The "Present Operation" and "Coastal Program Impact" on each of these
programs is described in turn.

A. SELF HELP PROG1RAM

Present Operation: The Massachusetts "Self Help" Program, established in

173

1960, assists cities and towns with established conservation commissions
in acquiring land for public recreation and open space. The Program provides
up to 50% reimbursement of the cost of acquiring such lands.

Approximately 27,000 acres (39 square miles) have been acquired under
the Program since 1960 at a total cost of $l5.000.,000. Approximately 20
percent of communities in the State have participated, while 30 (39 percent)
of the Commonwealth's coastal communities have not participated. Approxi-
mately 20 percent of the land acquired -under the Program is located in
coastal communities. Coastal communities with significant open space
lands purchased with the aid of "Self Help" funds include Duxbury, Dennis,
Barnstable, Marshfield, and Brewster.

The Program has been largely supported by bond issues totalling
$12,000,000 since 1974. $1,500,000 of "Self Help" funds have not yet
been expended, while applications pending total $4,000,000.

Coastal Program Impact: The staff of the Division of Conservation Services
is currently preparing criteria for funding of proposed acquisitions that
will reflect Program policies. In particular, the Program recommends
these funds be provided to communities to acquire undeveloped hazard
prone areas if they serve as natural protective buffers or if their
buffering capabilities could be restored by non-structural improvements.
In this fashion, both the prevention of inappropraite development and the
preservation of scenic natural areas will be accomplished. In addition,
it is proposed that "Self Help" funds be used to acquire waterfront land
in urban areas in order to expand visual access to the coast, and to
acquire trails linking existing coastal recreation sites to nearby
inland facilities. These acquisitions would have beneficial social
impacts by improving public access to the coast.

The impact of the "Self Help" Program will depend, in part, on the
availability of funds. As indicated, the cost of already proposed
acquisitions exceed the amount of funds presently available; the Division
of Conservation Services is seeking an additional $5,000,000 in fiscal
1978, for the "Self Help" Program.

B. LAND CONSERVATION RESTRICTION PROGRAM

Present Operation: The Land Conservation Restrictions Program allows
property owners to retain title to their land while remaining legally
bound not to develop it. In exchange, the landowner receives a property
tax advantage based on the open space value of his land. Since it
was enacted in 1969, 352 conservation restrictions covering approximately
12,500 acres were accepted by the Secretary of EOEA. During Fiscal
Year 1976, 111 conservation restrictions were accepted in 25 Massachusetts
coastal communities, and include several large parcels of significant
open space and aesthetic value in the coastal zone. Approximately 56
percent of the land subject to conservation restrictions in Massachusetts
is located in coastal communities.

Coastal Program Impact: The Land Conservation Restriction Program will
continue to be administered as at present under an approved coastal program.
As a tool to implement the Massachusetts Program, this Program is limited
since it is impossible to insure that adequate natural areas will be

174

protected, or that the most significant natural areas will be placed
under restrictions.

C. SECTION 315 BEACH ACCESS

Present Operation: Section 315 of the Federal Coastal Zone Management
Act authorizes the Secretary, in part, to make grants to States for
acquiring lands to provide for access to public beaches and other public
areas of environmental, recreational, historical, aesthetic, ecological,
or cultural value, and for the preservation of islands. No money has
yet been appropriated by Congress for these purposes.

Coastal Program Impact: The impact of Section 315 is entirely conditional
on the availability of funds. The Massachusetts Program proposes to use
these funds for acquisitions similar to those described under the
"Self Help" Program. In addition, Section 315 funds are proposedto be
used to purchase easements where necessary to protect existing public
recreation sites.

D). LAND AND WATER CONSERVATION FUND

Present Operation: The Land and Water Conservation Fund provides funds
for the acquisition of active outdoor recreation lands for Federally
administered recreation areas; and matching grants for State recreation
planning, and State and local land acquisition and development. "Self
Help"T Funds and the Land and Water Conservation Fund can be used jointly
to pay up to 75 percent of the cost of local acquisition projects.

Coastal Program Impact: Funding available from the Land and Water
Conservation Fund will be used to expand public access to the coast. In
particular, these funds will be used to link existing coastal recreation
sites via trails, and for recreation projects in connection with urban
waterfront redevelopment and hazard area management. This should help
to achieve the objective of the Program to expand recreational opportunities
along the coast, especially for urban dwellers.

175

Part IV,

Alternatives to the Proposed Action

PART IV

ALTERNATIVES TO THE PROPOSED ACTION

The proposed action being evaluated is federal approval of the
Massachusetts Coastal Zone program. The essential alternative being con-
sidered by the Assistant Administrator is not to approve the program
as submitted. In deciding whether to approve the program, he must
determine whether the program meets the requirements of the Coastal Zone
Management Act as specified in the twenty-six findings needed for program
approval. This determination ultimately requires that discretion be used
in interpreting the intent of Congress as expressed in the Act.

This part describes the four most likely reasons the Assistant
Administrator might deny or delay program approval, as well as the six
most likely state alternatives to submitting the proposed program.
Although the alternatives are similar to those identified in the DEIS,
they have been revised to reflect the objections raised to the program
during the review period. In order to determine the full implications
of these alternatives the reader should consider the impacts described
under each federal alternative as well as those under each state
alternative.

A variety of alternatives are available to the state, represented
by all possible amendments to the program that might be adopted. Clearly,
however, the alternatives considered by the state depends on what actions
are taken by the Assistant Administrator. In particular, if the Assistant
Administrator delayed or denied approval, the state would have to con-
sider a wide range of options.

The description of state alternatives satisfies in part the require-
ments of the Massachusetts Environmental Policy Act.

These federal and state alternatives could be carried out in several
different ways. Federal approval would lead to program implementation
under Section 306. On the other hand, a decision by the Assistant
Administrator not to approve the program as submitted might lead
Massachusetts to withdraw from the federal program. Alternatively
the state might seek an additional year of funds under Section 305
(d) to implement certain program elements and revise other elements
deemed to be inadequate for federal approval, also leading to final
program submission sometime in the future.

177

CHAPTER 12

FEDERAL ALTERNATIVES

1) The Assistant Administrator could delay or deny approval if the program
is not adequately comprehensive to achieve the goals and objectives of the
Coastal Zone Management Act as expressed by Congress in Section 302 and
and 303 of the Act.

The Office of Coastal Zone Management has made an initial determi-
nation that the Massachusetts Program is adequately comprehensive in
scope. In 1972 in creating the Coastal Zone Management Act, Congress
found "in light of competing demand ... present State and local institu-
tional arrangements for planning and regulating land and water uses in
such areas are inadequate." (CZMA Section 302 (g)). Thus, while the
Massachusetts Program makes changes to its present State and local insti-
tutional arrangements, the reader could question whether or not the
State had gone far enough in addressing the competing demands on the
coastal area. For example, while maritime dependent uses, recreation and energy
facilities are given priority for various coastal locations, the State
program does not address whether shopping centers, high rise apartments,
warehouses, chemical plants, new towns or amusement parks should or should
not be located in the coastal zone. These uses will continue to compete
with single family homes, agricultural land and with each other. Local
zoning and State sewerage and transportation investments will be the prime
* ~determining factors with respect to where they are located in the coastal zone.

The initial determination of approvability was reached partly on
the basis of the strong laws already in place in Massachusetts that met
many of the concerns Congress expressed in 1972 about institutional ar-
rangements in all States. For example, Massachusetts laws protecting
wetlands and siting energy facilities are more advanced than most other
States.

One could question if Massachusetts has adequately addressed the
Congressional finding that scenic characteristics, cultural and aesthetic
values were being destroyed by ill-planned development. The initial
determination of approval was based on the existing State Scenic Rivers
Act, Outdoor Advertising Board, the Scenic Roads Program and the Areas of
Critical Environmental Concern Program, even though they do not blanket
the coastal zone. Furthermore, the policies will assist localities to
voluntarily consider aesthetic issues. Federal approval funds will
assist the localities as well as the state in implementing the existing
scenic acts.

The implications of selecting this alternative included a delay in
program implementation, no increase in federal funds for Massachusetts
under Section 306, the possibility that federal actions affecting the
Massachusetts coast might be inconsistent with the policies of the program
and that issues of national interest may not be protected. Improved
environmental protection anticipated under a federally approved coastal
program would not be achieved as rapidly, nor would the increased staff
0 ~be available to work on designating scenic rivers. Momentum for effective
protection of the Commonwealth's coastal resources, gained through
preparation of this program,might be lost.

178

2) The Assistant Administrator could delay or deny approval if the
state does not have the authorities necessary to implement the program
at the time of 306 approval.
The Office of Coastal Zone Management has made an initial determination
that the authorities to be in place at the time of program approval will
be adequate to carry out the management program and meet the objectives
of the Coastal Zone Management Act. However, concern has been expressed
whether additional legislation should be sought, additional regulations
should be in place, restrictions and designations on certain lands be
completed prior to program approval.

The alternative of getting coastal zone legislation in the state was
considered and rejected by Massachusetts as unnecessary given the strong
legislation already in place in the state. Furthermore, the Federal
Coastal Zone Management Act specifically allows a state to coordinate
existing laws providing their total coverage is broad enough to meet
the requirements of the Act.

Although the 21A regulations are in place prior to federal approval,
some hold that all key substantive regulations resulting from the program
should be adopted. The Waterways Program and Ocean Sanctuary Program
are currently without regulations. Their adoption would give added
assurance the new state policies affecting these programs will be incor-
porated into day to day operations. Regulations implementing the Wetlands
Protection Act are currently under study by a program review board for
possible comprehensive revision. Such a revision would provide more
effective and consistent administration than the current regulations which
add less than optimum refinement to the broad standards of the Act. With-
holding approval until agreement on the revisions is reached might provide
the incentive needed to complete the revision process. It should be noted
that the state will have draft Waterways regulations prior to federal
approval. The state is pledged to promulgate the six key regulations
during the first year of 306 funds.

While these six proposed regulations will not be adopted at the time
of program approval, NOAA/OCZM has initially determined that the program
policies will nevertheless be implemented consistently with the program.
This decision results from a determination that the authority to imple-
ment the program rests not with the regulations but with the authorities
given the Secretary under Chapter 21A of the Massachusetts General Laws.
The program policies are incorporated into regulation. In addition the
individual commissioners have agreed that the program represents state
environmental policy and have requested the Secretary to jointly im-
plement the program, thereby triggering the Secretary's authority under
Chapter 21A MGL Section 4 to implement programs upon request. Con-
sequently, OCZM has initially determined that the policies are enforce-
able as written.

179

Although the Energy Facilities Siting Council operates under current
regulations, a claim can be made that the incorporation of coastal zone
energy policies into these regulations will offer better assurance that
they will be followed than simply a memoranda of understanding. OCZM
has determined that these policies are enforceable not because of the
MOU but because of the EFSC's statutory duty to ensure consistency
with current state environmental policies. This obligation is defined
by the MOU between the EFSC and EOEA.

Finally, the program proposes to place certain types of restrictions
or designations in order to protect natural areas against inappropriate
development. For example, the state plans to restrict most of the
unrestricted beaches, barrier beaches, dunes, salt marshes, and shellfish
beds in the coastal zone. Also, the program proposes that some coastal
rivers be protected under the Scenic Rivers Program, and that Areas of
Critical Environmental Concern/Areas for Preservation or Restoration be
designated by the Secretary of Environmental Affairs. However, if the
Assistant Administrator determined that all or some of these designations
or restrictions needed to be in place at the time of program approval to
insure program implementation, he could delay or deny approval until the
necessary steps were taken. This alternative is -undesirable because con-
siderable time would be required, thus delaying the positive environmental
impacts resulting from approval. For example, all of the Critical Areas
of Environmental Concern nominated in the program document could probably
be designated within one year; by contrast, restricting all of the rest
of the state' s coastal wetland areas would take from three to five years.
Furthermore,, the Commonwealth has agreed to designate or deny the 10
APRs within the first year after approval.

The environmental implications of this alternative would be similar
to those described under Federal Alternative 1; the scale of the impacts
would depend on the length of the delay. Other disadvantages are that the
Commonwealth would lose additional funds that would be available under
Section 306, federal actions would not need to be consistent with the
management program, and facilities and resources of national interest
may not be adequately protected.

The major environmental advantage of these alternatives is that
the State might be encouraged to have better coastal management authori-
ties in place at the time of Program approval. On the other hand, the
State might choose to withdraw from the Federal Coastal Zone Management
Program rather than make the changes required for Section 306 approval.

3) The Assistant Administrator could delay or deny approval if the
national interest in the siting of facilities in the coastal zone was
not adequately considered.

The CZM Act states that prior to granting approval of a management
program the Secretary shall find "the management program provides for
adequate consideration of the national interest involved in planning
for, and in the siting of, facilities (including energy facilities ...)
necessary to meet requirements which are other than local in nature."t

180

(section 306 (c) (8)). NOAA/OCZM has made an initial determination that
the Program adequately addresses the national interest in facility siting.
in the coastal zone. However, concern has been expressed that the
Massachusetts Coastal Program, has not given adequate consideration to i
these facilities, especially energy facilities.

There are three separate concerns that have been expressed:

a) The Program will prohibit some energy facilities in areas sub-
ject to the Restriction Act.

While this is true, the Program has made adequate adjustments to allow
necessary transmission lines, certain underground utilities, and water
cooling intake and outtake pipes to cross restricted barrier beaches and
sandy beaches, so long as the pipes are covered, and the land returned
to its natural setting. This last exception to the restrictions generally
placed in these important resource areas allows energy facilities to develop
immediately upland from the restricted area, and does not prohibit the
siting of necessary facilities in the coast, while at the same time
adequately protects the national interest in wetlands and providing beach
recreation.

b) The Memorandum of Understanding between EFSC and EOEA has no
standing.

The memorandum established the necessary procedure in this Program
to assure that facilities are adequately considered and not arbitrarily
excluded by local governments. It is the State's opinion that the EFSC
has a right to enter into such agreements and that it does not affect0
their responsibilities assigned by law. It appears to the Assistant
Administrator that it is merely an administrative clarification recogniz-
ing the Coastal Zone Management Program as State environmental policy.
Regulation 62.9 (3) of the EFSC requires the Council to act consistently
with State environmental policy.

c) The Program does not spell out specific enough criteria for
the EFSC to consider.

Many of the policies in the energy portion of the Massachusetts
plan are process oriented -- i.e., ",keigh," "consider" in stead of sub-
stantive -- i.e., "prohibit" or "encourage". The Assistant Administrator
could deny or delay approval until more substantive energy criteria
were developed.

However, as noted in the five step process detailed in Policy 8,
the EFSC has agreed to use the CZM policies as adopted by the 21A reg-
ulation as an expression of current health, environmental protection,
and resource use policies of the Commonwealth. For this reason,
OCZM has preliminarily determined the Program is adequate. In addition,
to Policies 8 and 9 which pertain specifically to energy facilities,

181

the other policies that may be applicable include those pertaining to
alteration of salt marshes, dune areas, salt ponds, barrier beaches,
shellfish flats, and sandy beaches (Policy 1), development in APR's
(Policy 2), construction in water bodies and in ports (Policies 4 and
7), dredging and dredged material disposal (Policy 5), preservation of
lawfully designated historic sites or districts (Policy 12), evaluation
of impacts on public recreational facilities (Policy 13), and conformance
to waste discharge pollution and wetland protection requirements (Policy
10).

The selection of this Federal alternative could considerably delay
Program approval or make approval unlikely. For the State to change
its policy to protect APRs and restricted areas in order to provide for
greater accommodation of energy facilities would be a substantial change
in the Program which it may not wish to make. Such a change would also
raise the question of whether the national interest in wetlands and re-
source protection were adequately considered. To obtain a stronger legal
relationship between EFSC and EOEA would probably require legislative
action. To develop more specific criteria would take time. The results
of this delay would be similar to those described under Alternative #1.
The advantage of strengthening the relationship between EFSC and EOEA
would be a clarification of the role CZM1 policies play in EFSC decisions.
The advantage of more specific criteria would be more predictability.

4. The Assistant Administrator could deny or delay approval if the
Program does not meet all o~f the specific requirements of the Coastal
Zone Management Act.

Section 306 (c) of the Coastal Zone Management Act requires the As-
sistant Administrator to find that a State coastal management program
meets all of the requirements of the Coastal Zone Management Act prior
to approving the Program. The specific findings that the Assistant
Administrator must make prior to Program approval are listed in Part 1,
Chapter 3. This alternative encompasses all of the possible reasons
for not approving the Program as submitted in addition to those already
discussed in Federal Alternatives 1-3. For example, someone might feel
that the boundary does not extend far enough inland to protect the
interests of the Act.

The Office of Coastal Zone Management has made an intial determi-
nation that the Program does meet the minimum requirements or will by
the time of 306 approval of the Act.

The thiree primary impacts of a -negative decision would be that
Massachusetts would not receive necessary funds to implement the Pro-
gram; Federal consistency would not apply to Federal agencies' acti-
vities in the coastal zone; and national interest would not be taken
into account.

In addition some delay in Program implementation would occur; the
length of the delay would depend on the type of Program deficiency that
was found and the types of remedial action taken by the State. (see

is ~~impacts of Alternative One for more details).

182

CHAPTER 13

STATE ALTERNATIVES

1. The state could have revised the proposed program by expanding the
scope and comprehensiveness of the policies as described under Federal
Alternative #1,.

As stated, the proposed Massachusetts Program has initially been
determined to meet the minimal requirements of the Act necessary for fed-
eral approval. However, the state might seek, by revising the Program's
policies, to manage a greater number of coastal activities at the state
level rather than leaving so much decision making with local governments.
For example, the state might develop explicit guidelines for the location
of major commercial or residential developments in the coastal zone. Also,
more resolution of potential conflicts among competing coastal uses might
be resolved prior to Program approval and thus increase predictability. On
the other hand, the risk of adverse social and economic effects of the Pro-
gram on housing costs and availability would probably increase. Opposition
to a more comprehensive management program for the Commonwealth might
threaten the success of any type of coastal program for Massachusetts.

2. The state could have sought additional legislation establishing
more comprehensive management authorities and submit a revised
Program based on this legislation.

* ~~~~Instead of relying on existing regulatory programs and procedures,
the Commonwealth could adopt new or revised coastal management legislation
and submit a revised program based on this legislation. This new coastal
zone management authority could be added to the existing state and local
authorities, or it could be integrated with or replace existing laws or
procedures.

The Governor's Task Force on Coastal Resources identified three alter-
native types of management based on new legislation that could be enacted
by the state as a basis for a coastal management program. After evaluating
all of these alternatives, the Task Force determined that new legislation
was not required. However, these legislative alternatives are still avail-
able to the state and are potentially acceptable under the requirements of
the Coastal Zone Management Act. These alternative proposals as well as
their advantages and disadvantages are discussed below.

a. Expanded Direct State' Control

The state could manage directly a significant number of coastal
activities, including some now subject solely to municipal jurisdiction.
A variety of institutional arrangements are possible. A new state body
with broad powers could regulate directly a broad spectrum of projects;
a state agency could review local decisions for conformance with state
promulgated guidelines, and override local decisions inconsistent with the
state plan; or an agency could be empowered to regulate only activities of
greater than local concern, which would have the authority to exercise com-
prehensive and consistent coastal management. Assuming existing permitting

133

authorities were combined or eliminated, the coastal regulatory process
would be greatly simplified under this alternative. The disadvantages are
that this alternative runs counter to the tradition of local land use con-
trol in Massachusetts, and potentially could add an additional bureaucratic
hurdle for developers without the incentive under the proposed Program to
make the present system work better.

b. State Review of Local Plans

The state could review local ordinances and regulations, prepared
in line with state criteria, to ensure their consistency with an adopted
state coastal plan. Individual communities would be permitted to enact
more restrictive ordinances than provided for in state criteria. A num-
ber of mechanisms could be instituted to ensure that local governments
comply with their own ordinances and regulation, including direct state
review of local decisions, or judicial review of individual cases.

The major advantage of this alternative would be that the Common-
wealth could enforce comprehensive, statewide coastal policies while pro-
viding for a large degree of local authority and public participation.
Nevertheless, the shift in the allocation of authority to the state and
away from municipalities would create strong opposition. As under alter-
native (a) if state and local permit authorities were left unaffected,
the system might be unduly complex and burdensome.

c. Regional Implementation

A third level of decision-making represented by regional bodies
could be delegated some, oy all, of the existing state permitting author-
ities, or they could promulgate criteria and regulations to be implemented
by the local governments in their region as under alternative (b). Some
form of regional review of local decisions could be provided. Or, enabling
legislation might allow local governments to join together over an issue
of mutual concern, receive some financial and technical support from the
state, reach a decision on the problem, and dissolve.

The advantages of this approach are that a larger degree of public
input for decisions of regional concern would be permitted than in the
direct state control system and greater consistency in decision-making
would be possible than under the state/local option. The major disadvan-
tage of this alternative is the creation of another administrative layer
resulting in higher costs and additional procedural steps for approval of
development activities. Both state agencies and local government might
oppose relinquishing any of their present powers.

3. The state could have restricted under existing authorities all or
some of the state's unrestricted significant resource areas, or
designate Critical Areas of Environmental Concern, Sign Free
Areas, or Scenic Rivers prior to Program approval.

Rather than deferring restriction of additional significant
resource areas and designation of various environmental protection areas
until after program approval, Massachusetts could take these key steps
prior to Program approval. This alternative would require a substantial
delay in Program implementation. Hearings would be required which would
add a delay of at least several months for each designation process.

184

First, the Secretary of Environmental Affairs cdould designate
certain Critical Areas of Environmental Concern (APRs) prior to Program
approval. The proposed Program provides no assurance that critical areas
will be designated, although ten areas have been nominated. Thus, this
alternative. means that certain policies and restrictions that may not be
enforced, or that may not be enforced until some indeterminate time in the
future, would be applied to these critical areas from the time of Program
approval.

Second, an estimated 43 percent of the Commonwealth's barrier
beaches, beaches, dunes, salt marshes and tidal flats are covered by the
Coastal Wetlands Restriction Program. The remaining areas, excluding
designated port areas, are proposed to be restricted following Program
approval. Alternatively, the state could withdraw the Program until all
or most of these areas actually have been restricted. However, as noted
before this process would take between three to five years.

Finally, under the proposed Program, the Commissioner of DEN will
designate certain Scenic Rivers, and the Office of Coastal Zone Management
will petition the Outdoor Advertising Board to designate Sign-Free Areas in
the coastal zone in the future. Alternatively, these steps could be taken
prior to Program approval.

Alternative three would result in delay in the implementation of
the coastal program due to administrative and public hearing requirements.
The advantages of this alternative are that a greater degree of environ-
mental protection would be afforded certain natural areas than might
otherwise occur; for example, additional wetland areas would be restricted
against inappropriate development, or Critical Areas of Environmental Con-
cern would receive more focused management attention. Also, the practica-
bility of certain coastal policies might become better understood, for
example, if the Outdoor Advertising Board declined to designate Sign-Free
Areas, the state might wish to amend the visual policies to reflect this.

4. The state could have promulgated final regulations prior to
formal approval following DEIS/MEPA hearings.

The coastal program indicates that new and amended rules and
regulations will be adopted by various state agencies following Program
approval. Alternatively, the state could delay the final Program sub-
mission until these regulations are in place.

The Secretary of Environmental Affairs has adopted regulations to
establish the Coastal Zone'Management Program as a statement of state
environmental policy. In addition, rules and regulations, and review pro-
cedures, incorporating CZM concerns will be adopted by various state agen-
cies involved in the program. For example, either new or revised regula-
tions will be adopted for the Ocean Sanctuaries Program, the Waterways
Program, the Wetlands Protection Program, and for the Division of Water
Pollution Control and the Energy Facilities Siting Council. A time-
table for promulgation of these regulations is included in Section 6.6.
Waterways and CZM have also been preparing a rating system to rank the
relative benefits of proposed navigation improvements. Finally, the
Division of Conservation Services is developing new criteria reflecting
the CZM Program for the allocation of Self Help Program funds in
the coastal zone. All of these rules, regulations, and procedures
could be adopted prior to formal approval under this alternative.

185

The adoption of new regulations and procedures in Massachusetts
is particularly significant since the authorities that will be relied upon
are based on statutes that were adopted at widely different dates and have
been administered according to various standards of environmental protec-
tion. Thus, new regulations might be considered central to the purpose of
the Massachusetts Program to make the implementation of present management
authorities more consistent and effective.

The most significant disadvantage of this alternative is that a
delay in Program implementation would occur. The advantages are that the
implications of the coastal program for diverse coastal users would become
clearer if the regulations were adopted prior to Program approval. Also,
it might be easier to insure the consistency of these regulations with the
overall Program if they were adopted prior to actual Program implementation.

5. The state could have revised the Program by defining a different
landward coastal boundary than the one proposed.

The Massachusetts coastal zone includes the lands and waters
within the area defined by:

The seaward limit of the state's territorial sea
(i.e., 3 miles), extending from the Massachusetts-
New Hampshire border south to the Massachusetts-
Rhode Island border, and landward to 100 feet
inland of specified major road, rail, or other
visible rights-of-way. The Cape and Islands are
included entirely within the coastal zone.

In isolated instances, where the road boundary might exclude significant
resource areas, the boundary line departs from the road to encompass them.
Tidal rivers and adjacent uplands are included inland, at a minimum, to
the extent of vegetation affected by saline water. Anadromous fish runs
are included to the fresh water breeding area, if such area is within a
coastal town.

Prior to selecting this boundary, the Massachusetts Office of Coastal
Zone Management evaluated ten alternative boundaries:

Cultural or Distance
Natural Features Boundaries Boundaries

1. Coastal watersheds 6. Town jurisdictions
2. Coastal storm floodplain 7. 1/2 mile from mean high tide
3. 50-foot topographic elevation 8. Major coastal road
4. Coastal ecological systems 9. Coastal census tracts
5. Visual features 10. Immediate water or beach
frontage

These boundaries were then evaluated on the terms of how well they satis-
fied the following criteria:

(a) "A state's coastal zone must include transitional and intertidal
areas, salt marshes, wetlands and beaches.... In no case, how-
ever, will a state's landward coastal zone boundary include only I
such areas....*" (CZM Program Approval Regulations: 15 CFR
923.11)

186

(b) "The area must not be so extensive that a fair application of the
0 ~ ~~~management program becomes difficult or capricious, nor so limited
that lands strongly influenced by coastal waters and over which
the management program should reasonably apply, are excluded."
(CZM Program Approval Regulations: 15 CFR 923.11)

(c) "The coastal zone must include within it those lands which have
any existing, projected or potential uses which have a direct
and significant impact upon the coastal waters and over which
the terms of the management program will be exercised."
(CZM Program Approval Regulations: 15 CFR 923.11)

(d) The boundary must be adequately delineated on maps or in words so
that there are no questions as to whether someone's property is
within or without. (CZM Institute, 1974)

(e) The cost of necessary surveying and administration should not
be excessive because of a too large or too complex boundary.

(f) The boundary should coincide with existing special districts,
jurisdictions, or other existing institutional frameworks if
and where possible.

6. The state could withdraw the approval application from OCZM and
continue Program development and/or attempt to use other sources
of funding to meet the objectives of the proposed coastal manage-
* ~~~~ment program.

Since coastal zone management is a voluntary program of state-
federal cooperation, a state can withdraw its application without any
penalty, except that no additional OCZM funding will be provided and fed-
eral agencies actions will not need to be consistent with the management
program. Since Massachusetts includes some of the nations most valuable
shoreline, withdrawal of the Program could mean that the overall objec-
tives of the CZMA would not be met.

The legislative history of the CZMA shows Congress did not intend
the requirements of the CZMA to be so stringent or difficult to achieve that
a state would be precluded from achieving program approval after reasonable
time and effort. Nevertheless, experience has shown that it is not easy to
develop an adequate program. The reasons for program withdrawal can be
diverse. Important weaknesses in the program may have gone unnoticed until
the state submitted its program for approval, or, a number of unresolvable
issues surfaced during the ~review process.

In the case of Massachusetts, withdrawal would not result in a differ-
ent type of management system than is proposed under CZM. The Program
relies extensively on existing authorities and these presumably will con-
tinue to be implemented whether or not the Program is adopted. However,
funding to hire additional staff to make the present management system
more effective would not be available. Also, the restriction of addi-
O ~tional ecologically significant resource areas and the designation of
certain scenic areas for protection might not occur or would occur at a
slower rate in the absence of a formal coastal program. Federal actions
would not -need to be consistent with the management program.

187

Parl V.

Probable Adverse Environmental Effects
Which cannot be Avoided
Chapter 14

.O~~~~~~~~~188
188

PART V

CHAPTER 14

PROBABLE ADVERSE EN'VIRORMENTAL EFFECTS
WHICH CANN~OT BE AVOIDED

The probable effects of Massachusetts CZM4 Program implementation will,
on the whole, be environmentally beneficial. However, there will probably
be a number of adverse impacts to both the natural and socio-economic
environments which cannot be avoided.

Adverse impacts will continue to be associated with the siting of
major facilities for purposes of defense, transportation, energy require-
ments and others in which both the state and federal governments have
interest. The Program makes provisions for consideration of the siting of
facilities which are in the national interest. It is important to note,
however, that under the CZMl Pro-ram and related federal acts (e.g., NEPA),
each such project will be evaluated as to the impacts on the natural
coastal environment. That is, investigations will be made, alternatives
considered, etc.

Outside of Sig3nificant Resource Areas, state interests are confined
to the meeting of air and water quality standards; ensuring that the cap--
ability of soils to accommodate sub-surface discharges are not overtaxed,
energy facility siting; the avoidance of adverse impacts to the qualities
0 ~~of designated historic districts or sites and public recreational beaches;
and the channeling of new sewer and transportation services to already
developed areas or areas contiguous to them. Thus, under the Massachusetts
CZM Program, local governments will continue to have sole responsibility
for a very wide range of land use decisions and broad areas of the coastal
zone. Apart from the state's interest enumerated above, whatever adverse
environmental impacts stem from such local decision-making will not be
avoided by implementation of the Program.

189

0
Part Vl

Relationship Between Local Short Term
Uses of the Environment and the
Maintenance and Enhancement of Long
Term Productivity
Chapter 15

e~~~~~~~~~190
190

PART VI

CHAPTER 15

RELATIONSHIP BETWEEN LOCAL SHORT-TERM USES OF THE ENVIRONMENT
AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY

While approval of the Massachusetts Coastal Zone Management Program
will restrict some local, short-term uses of the environment, it will also
provide long-term assurance that the natural resources and benefits pro-
vided by the Massachusetts coast will be available for future use and
enjoyment by more effectively administering existing resource protection
laws.

The Massachusetts Coastal Zone Management Program does the following:

A. Short-Term Uses:

1. Does not prohibit future development but encourages medium-high
intensity growth to occur in existing developed areas or areas
contiguous to them insomuch as growth is constrained by state
sewer and state highway programs.

2. Recognizes that some energy facilities and coastal-dependent
developments have adverse environmental consequences, but that
they may still have to be located in the coastal zone to protect
the inland environment as well as help provide for orderly eco-
nomic development and meet national interest.

B. Long-Term Uses:

1. Recognizes the coastal zone as a delicately balanced ecosystem.

2. Establishes a process of balanced management of coastal resources.

3. Allows growth to continue at present rates, while protecting key
resources.

4. Provides for a framework which can protect regional, state and
national interests by assuring the maintenance of the Iona-term
productivity and economic vitality of coastal resources necessary
for the well-being of the public, and to avoid long-term costs to
the public and a diminished quality of life resulting from the mis-
use of coastal resources.

Without the implementation of rationally based land and water use man-
agement programs, some intense short-term uses and gains, such as provided
by residential or industrial development, might be realized in natural
resource areas of the coastal zone. However, such uses would most likely
result in long-term limitations on coastal resource use and benefit because
of degradation of the environment. Without proper management, the tradi-
tional conflicts between shoreline resources uses -- residential, commer-
cial, industrial, recreational, and wildlife -- could be expected to occur.

191

Implementation of the Program will result in minimization of the
social costs which inevitably accompany environmentally destructive
development, the mitigation of which often requires public investment.

192

0
Part VII:

Irreversible or Irretrievable Commitments
of Resources that Would be Involved in
the Program Should it be Implemented
Chapter 16

SO~~~~~~~~~193
193

PART VI I

is ~~~~~~~~~~CHAPTER 16

IRREVERSIBLE OR IRRETRIEVABLE COMMINTMENTS OF
RESOURCES THAT WOULD BE INVOLVED IN THE PROPOSED
ACTION SHOULD IT BE IMPLEMENTED

The approval of the Massachusetts Coastal Zone Management Program will
not in itself lead to the loss of resources that a site specific project
would. Tradeoffs will have to be made based on the policies of the
Massachusetts Program. For instance, some urbanized areas or less inten-
sive industrial areas may receive greater development pressures and a com-
mitment of the surrounding resources because of the policy to concentrate
development of sewers and transportation projects to serve already developed
areas.

Also, the Program provides that priority will be given to coastal-
dependent development (certain energy facilities, port and harbor develop-
ment, etc.) which in turn is often the most damaging to the environment and
is located in the coastal zone to utilize its resources. However, the Pro-
gram establishes criteria and standards for siting and requires that alter-
natives be considered and mitigation measures be taken. Development will
occur in the absence of Program approval, but the Massachusetts Coastal
Zone Management Program will channel such activity toward environmentally
suited land areas.

* ~~~~The Program supports the acquisition of areas to meet the demand for
recreation. The acquisition of recreation sites would preclude further
development and reduce the tax base of local government, although if the
site were state owned, payment in lieu of property taxes would be made.
The commitment of those purchased areas to recreation would be irreversible,
unless the state Legislature, as required by state law, were to approve by
two-thirds vote a change in use.

194

czA

0
Part VIII:

Consultation and Coordination
Chapter 17

O~~~~~~~~~~195
195

PART VIII

CHAPTER 17

CONSULTATION AND COORDINATION

Extensive consultation, coordination, and input has been received in
developing the Massachusetts Coastal Zone Management Program. Because the
Program was developed with the natural and human environment in mind, many
alternatives have been considered.

The Office of Coastal Zone Management requires that a state conduct an
environmental impact assessment on their coastal management Drogram prior
to any approval of the Program. This assessment was used in developing the
draft EIS. Additional input has been received from various federal agencies
throughout the duration of the state's program development period on such
things as the impact of the Program on the federal agency program as well
as an analysis of the Program.

Coordination with all local, state, federal, public, and private
interests remains a key component of the Massachusetts Program. The Pro-
gram will provide for the public notice of major state actions, establish
regional and statewide advisory groups to monitor and review implementation,
provide technical assistance to coastal communities as to how local plans
may be made consistent with the CZM Program, assist the private sector
through the publication of handbooks and other means of communication on
meeting CZM policy requirements, and continue coordination with federal
agencies to resolve potential conflicts during implementation.

196

AZA

* Appendix A.
The Secretary's Authorities under 21A

O~~~~~~~~~~~197
197

APPENDIX A

THE SECRETARY'S AUTHORITIES U-NDER 21A

THE CREATION OF THE EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS
AND MGLA CHAPTER 21A, SECTIONS 2, 3 AND 4

The Executive Office of Environmental Affairs (EOEA) was estab-
lished by the 1969 reorganization of Mlassachusetts state government.
Reorganization combined 43 different agencies and programs into one
Secretariat. Previously, there was no state policy to have these pro-
grams administered in any consistent way. Reorganization brought
these programs together., assigned them among five major departments
distinguished by broad areas of responsibility. (DEQE, to administer
the stae' environmental regulatory programs; DEM, to manage state
lands and physical resources; Food and Agriculture, to promote and
regulate farm production; MDC to manage recreation and utilities with-
in the greater Boston area; and Fisheries, Wildlife and Recreational
Vehicles, to manage and promote our living resources.) The Legislature
also recognized that this marriage of diverse programs would require
central direction and thus gave to the Office of the Secretary powers
to plan and coordinate the operations of the individual programs, to
have central budgetary responsibility, and to resolve conflicts.

The first step in the Reorganization process was Chapter 704 of
the Acts of 1969 which created the Executive Offices in the Commonwealth
and charged them to make recommendations for restructuring state govern-
ment. Section 50 of that act states:

0 ~~~~~Such recommendations shall be made with a view to the
elimination of duplication and overlapping in the func-
tions, administrative practices and facilities of said
agencies, the combination and coordination of information
systems, the creation of administrative structures which
will assure coordinated and joint planning, the establish-
ment of clear and readily identifiable lines of authority
and allocations of responsibility, the coordination and
consolidation of the delivery of state services at state
and regional levels, and the enlargement of career op-
portunities.

In 1974, Chapter 806, now codified as M.G.L. Chapter 21A, created
new powers and clarified the roles of the Executive Office of Environ-
mental Affairs and its constituent agencies. Three sections (2, 3,
and 4) of that act are key to the CZM program.

SECTION TWO

Section Two charges Environmental Affairs with the following
power and responsibilities:

"The office and its appropriate departments and divisions shall
carry out the state environmental policy and in so doing they shall:

0 ~ ~~1) develop policies, plans and programs for carrying out their
assigned duties;

198

2) provide for the management of air, water and land resources
to assure the protection and balanced utilization of such
resources within the commonwealth, realizing that providing
safe water to drink and clean air to breath is a basic man-
date;
3) provide for the propagation, protection, control and manage-
ment of fish, other aquatic life, wildlife, and endangered
species and promote and further develop hunting, fishing,
recreational and competitive marksmanship, and trapping
opportunities in the commonwealth;
4) aid in the promotion and development of the food and agri-
culture resources of the commonwealth to preserve agricul-
tural lands, and insure an adequate supply of high quality
farm products;
5) provide for the regulation and management of marine and
coastal fisheries and natural resources including those
located in the territorial waters, the economic zone waters
and the continental shelf, wetlands, estuaries, shorelines,
and interior of the commonwealth;
6) promote the perpetuation, extension, and proper management
of the public and private forest lands of the commonwealth;
7) develop statewide policies regarding the acquisition, pro-
tection and use of areas of critical environmental concern
to the commonwealth;
8) develop and administer programs relating to recreation in-
cluding the acquisition of land, development of facilities,
and the provision of advisory services to municipalities and
private organizations;
9) promote the best usage of land, water, and air to optimize0
and preserve environmental quality by encouraging and pro-
viding for, in cooperation with other appropriate state
agencies, planned industrial, commercial, recreational and
community development;
10) -provide for the preservation and abatement of water, land,
air, noise, and other pollution or environmental degradation;
11) promote the preservation and enhancement of natural, scenic,
historic, and aesthetic qualities in both urban and rural
areas;
12) provide for the control of insects, plant diseases, and pests,
and regulate the use and disposal of pesticides;
13) develop programs relating to the reclamation or disposal of
solid waste material and the operation of sewer and water
systems;
14) encourage the restoration and reclamation of degraded or
despoiled areas, including harbors and inland and coastal
waters;
15) manage all lands and properties acquired by or assigned to
them to preserve their natural beauty, wilderness, or open
character of hydrological, geological, historical, scientific,
wildlife management, recreational or other significance value.
16) assist other state and regional agencies in developing appro-
priate programs and policies relating to land use planning
and regulation in the commonwealth;
17) analyze and make recommendations, in cooperation with other
state and regional agencies, concerning the development of is
energy policies and programs in the commonwealth;

199

18) advise, assist, and cooperate with such other departments,
agencies, authorities, officials, and institutions, including
state institutions of higher learning, as may be concerned
with or involved in matters under their control or supervision;
19) encourage recycling, resource recovery and environmentally
sound purchasing practices to conserve resources and reduce
waste;
20) monitor the environment to identify changes and to insure
efficient and effective control practices;
21) develop environmental data management capabilities to aid
environmental planning and decision-making;
22) encourage, support, and undertake research facilities to
produce information relating to the ecological system,
pollution preservation and abatement, resource management,
and other areas essential to implementing the environmental
policies of the commonwealth;
23) advise and assist local governments, private and public
institutions, organizations and associations, businesses,
industries, and individuals by providing and acting as a
clearing house for environmental information, data and other
materials;
24) promote the development of sound environmental education
programs;
25) represent and act on behalf of the commonwealth in connection
with federal grant programs;
26) keep accounts, records, personal data, enter into contracts,
adjust claims, accept gifts, grants, bequests and devises,
and subject to appropriation acquire real or personal property
by eminent domain or otherwise;
27) advise and assist state agencies, cities and towns, and other
units of local government in the preparation of grant of loan
applications with respect to any environmental protection or
enhancement programs;
28) promulgate rules and regulations necessary to carry out
their statutory responsibilities

In order to assist the office in the discharge of its duties,
the Secretary may request from any agency or political sub-
division of the commonwealth any information relevant to
the discharge of such duties. An information copy of each
application submitted by any political subdivision to any
public or private agency for a grant or loan with respect
to any environmental protection or enhancement program,
including the acquisition of land and facilities for these
purposes shall be filed with the office not later than the
twentieth day after submission. As the primary agency of
the commonwealth for environmental planning, the office
shall utilize the services and plans of regional planning
agencies, conservation districts, conservation commissions
and historical commissions in fulfilling its environmental
planning responsibilities."

It is significant that these broad powers and responsibilities
are given to the departments and divisions of Environmental Affairs
in addition to the Office of the Secretary itself. Thus, while each

200

line agency still has its own specific enabling legislation, Chapter
21A superimposes on the specific criteria in those individual acts
the requirement that every EOEA agency carry out the state environ-
mental policy in the manner directed by Section Two.

The State Environmental Policy is voiced in several places.
Article 49/97 of the Constitution declares:

"'The people should all have the right to clean air and
water, freedom from excessive and unnecessary noise, and
the natural scenic, historic and esthetic qualities of
their environment; and the protection of the people in
their right to the conservation, development and utiliza-
tion of the agricultural, mineral, forest, water, air and
other natural resources is hereby declared to be a public
purpose."

Chapter 30 M.G.L. Section 61, the Massachusetts Environmental
Protection Act (MEPA) directs:

"1All agencies, departments, boards, commissions, and
authorities (to) . .. determine the impact on the natural
environment of all works, projects or activities conducted
by them and shall use all practicable means and measures to
minimize damage to the environment . . .(which) shall mean
any destruction, damage or impairment and eutrophication
of rivers, streams or subsurface water resources; destruc-
tion of seashores, dunes, marine resources, and underwater
archaelogical resources, wetlands, open spaces, natural I.
areas, parks, historic districts or sites. Damage to the
environment shall not be construed to include any insig-
nificant damage to or impairment of such resources."

Other sources of the state environmental policy can be found in
Executive Orders promulgated by the Governor as statements of environ-
mental policy; in statements of environmental policy promulgated by
the Secretary of Environmental Affairs; or statements of policy promul-
gated by the Secretaries with other Executive Offices which are
adopted by the Secretary as statements of environmental policy.

How does Section Two operate with respect to the EOEA agencies?
How do the 27 directives and the mandate to carry out the state environ-
mental policy affect the existing enabling legislation of each agency?

Section Two does not expand basic agency jurisdiction or authority,
but it does serve to define or focus the direction of such authority.
It does not require agencies to undertake new programs which are be-
yond the scope of their authorizing legislation. But it does im-
pose an affirmative duty to implement the state environmental policy
when they are acting within their existing jurisdiction, whether re-
viewing a permit or initiating a project.

The key idea here is the phrase "acting within their existing
jurisdiction." The scope of discretion granted to agencies by the
legislature varies from statute to statute. Some acts grant a wide
range of discretion to an agency. Statates such as these may contain

201

such phrases as "Public Welfare", "good order", or "care and control".
A second category of statutes are those that set forth certain explicit
concerns which the agency is to address, but allow wide discretion
for how to act within those named concerns. A third category both
sets forth the subject area of review and the standards to be used
in the administration of the act. Thus, the administrator is es-
sentially without any discretion; if a case arises in the area ad-
dressed by the statute and fits the criteria named therein, then the
administrator must act accordingly. Laws of this third type are often
referred to as ministerial.

An example of the first category are the Waterways laws. Chapter
91 Section 2 states, "The department shall . . have charge of the
lands, flats, shores and rights in tidewaters belonging to the Com-
monwealth . "and at Section 10, "The department shall have general
care and supervision of the harbors and tidewaters of the Commonwealth..."
A fully developed body of case law has also addressed the role of the
state in the managempnt of waterways. These statutes and the courts'
interpretation reveal that since waterways are public lands, the state
is to act as a trustee over them and must weigh all proposed uses of
the waters as to the public good versus the private good that could be
obtained from such uses. Thus, the state has broad discretion when
reviewing uses in waterways and a concomitantly broad responsibility
to incorporate Chapter 21A.

21A, overlaid upon Chapter 91, thus ensures that if a project
were proposed which would entail risks to marine resources (for instance)
an administrator could not act in ways which would be inconsistent with
the directives to "provide for the propagation, protection, control
and management of fish, other aquatic life. . ." or to "provide for
the regulation and management of marine and coastal fisheries and natural
resources including those located in the (open sea), wetlands, estu-
aries, shorelines. . .", etc.

The Wetlands Protection Act (Ch. 131, Sec. 40) is an example of
the second category of statutes. Here the law calls upon Conservation
Commissions and DEQE to protect fisheries, prevent pollution, and
prevent storm damage, etc. Thus, an administrator could again turn
to the directives of subsections 3 and 5 (quoted just above) in de-
ciding how to protect fisheries. And, once the CZM policies are
adopted, those relevant to the protection of fisheries would apply
to the administration of the Wetlands Act. Contrary to the first cate-
gory of broad discretion, the limited list of protected interests
named in the Wetlands Act, would preclude an administrator from ap-
plying those parts of 21A dealing with recreation or visual concerns.

An example of a ministerial statute is Chapter 21 which states,
"Each person intending to engage (in the business of digging or
drilling wells) shall register annually with (the water resources
commission) and upon payment of a fee of ten dollars shall be issued
a certificate. . ." There are very few such statutes in EOEA.

In sum, the Legislative mandate to the EOEA agencies requires
an integrated approach towards critical areas, towards the balanced

202

and best usage of all resources, and towards conflicting uses of
land - natural and commercial, urban and rural or historical and
industrial. Section Two furthers the essential purpose of reorgani- i
zation by ensuring that no agency willfully can act to undermine the
concerns of any other unit within EOEA.

SECTION THREE

Section Three of Chapter 21A declares in part that "the Secretary
shall conduct comprehensive planning with respect to the functions of
the office and shall coordinate the activities and programs of the
(agencies) within the office. He shall continually review the opera-
tion of the office with a view toward improving administrative organi-
zation, procedures and practices, (and) promoting economy and efficiency."

The CZM program has been the first major effort by the Executive
Office and the line EOEA agencies to conduct a thorough program of
comprehensive planning for a vital resource area of the Commonwealth.
The planning effort and the management structure described in this
Chapter and in the Secretary's Regulations adopting the CZN Program
rest their authority in part directly upon this sec tion. The per-
formance evaluation procedures, (explained in Part 3) while within the
scope of authority of any administrator, are further reinforced by
the Legislative directive of Section Three.

SECTION FOUR

Section Four is referred to as the conflict resolution section.
This phrase, and this section of the statute encompasses several
concepts.2 The section reads:

"In order to enable him to coordinate and improve the
operations of all departments, divisions and other
administrative units within the office, the secretary
shall have the following powers and duties concerning

2These concepts parallel those expressed in Section 306 (c)(1) of
the CZMA. With regard to these requirements, the CZM plan itself
resolves many conflicts among competing uses. The CZM policies, taken
as a whole, represent a conscious balancing of the needs to preserve
some areas, to develop others or to further recreational uses. The
implementation of these policies by the EOEA agencies will mean that
for the many activities in areas that the plan addresses directly,
the conflicts have already been resolved. Secondly, through the
continuingplanning role of the Secretary, by technical assistance
and special planning grants, and by directing the use of public
infrastructure spending, the CZM Program will obviate many conflicts
by resolving them in advance. Thirdly, should individual conflicts
develop or should there be a conflict within the CZM plan as it is
applied to a particular situation, the conflict resolution powers of
the Secretary will be applied to ultimately resolve any such-issues.

203

any power or duty assigned to any such department,
division or other administrative unit:
Is ~~~~~~(1) the power and duty to resolve administrative
and jurisdictional conflicts between any such agencies
or officers;
(2) the power and duty to implement, upon request
of any such agency or officer, programs jointly agreed
to by the secretary and such an agency or officer;
(3) the power and duty to coordinate and improve
program activities involving two or more agencies or
officers."

The first five lines of Section Four reiterate the philosophy of
the Reorganization legislation. This section is key to insuring that
the dual legislative purposes of carrying out the state environmental
policy and of integrating program activities is performed. First,
the Secretary's powers extend to "any power or duty" assigned to any
EOEA agency. In subsection (1), thehSecretary may resolve "administra-
tive and jurisdictional conflicts." This concept is far broader than
simple subject matter jurisdiction, such as whether or not hooking up
to a sewer falls within the jurisdiction of Water Pollution Control or
the MDC. The power indludes situations where two laws or programs
have inconsistent criteria or require inconsistent outcomes; where
the actions of one agency have the potential for undercutting, inter-
fering with, or duplicating another program; or where there are issues
concerning how to fund or enforce certain programs. As an example,
the Division of Marine Fisheries may have spent significant funds and
is ~~efforts in an area to improve fisheries resources. Some other agency
of EOEA may wish to dredge, may have a request to permit a water dis-
charge, may want to allow off-share mining, or may want to encourage
a marina development with public access in the same area. Any of these
proposals could significantly undercut or nullify the efforts of Marine
Fisheries, yet to disallow them could deny other valid public benefits.
Difficult choices must be made. The legislature foresaw that it was
preferable to consciously make such choices, and to have them made by
the administrator who also plans the future course of the agencies
(in order to obviate the chances of such situations in the future)
than to have both activities proceed in an uncoordinated, expensive
and possibly futile fashion.

This reasoning does not deny that there have not been valiant ef-
forts on the partof individual administrators to coordinate their pro-
grams or that there are not some laws which expressly require consulta-
tion with other agencies. But, Reorganization was essentially a cor-
porate merger, and as any business executive would agree, without clear
and firm leadership empowered to resolve conflicts, effective manage-
ment and unified direction cannot occur.

Chapter 21A(4)(2) gives the Secretary the power and duty to jointly
implement programs with EOEA agencies, upon their request. The Memoranda
of Understanding with the Commissioners (explained in Part II) trigger
this section by requesting that the Secretary join them in implementing
the final CZM plan. These requests further underscore the commitment
of the EOEA administrators to carry out the CZM policies.

204

Appendix B:
Memoranda of Understanding

DAVID STANDLEY m r e 4
COMMISSIONER

February 28, 1977

Evelyn F. Murphy, Secretary
Executive Office of Environmental Affairs
100 Cambridge Street
Boston, MA. 02202

Dear Secretary Murphy:

Inasmuch as the implementation of the Coastal Zone Management Program

will require the coordination of programs within my agency with other EOEA

agencies, and with the Office of the Secretary, I hereby express my support

for the program. I hereby request to jointly implement the program. I

accept the final Coastal Zone Management Plan, as approved by the Governor,

as a statement of the state environmental policy for the coastal zone.

I further agree that:

(1) I will adopt and incorporate the rules and regulations promulgated

by the Secretary for implementation of the program, to the extent permissible

by law.

(2) I will adopt within my agencies, following proper procedures, rules,

regulations, and appropriate procedures, for those parts of the Plan dependent

upon the authorities and statutory responsibilities of my agencies in order to

improve the coordination of activities and programs within EOEA, pending formal

approval of the Plan by the Governor.

(3) I will provide legal standing in my affected agencies' proceedings

for other agencies within EOEA, if so requested.

206

-2-

(4) I request that to enable the Secretary to coordinate and improve

the operations within EOEA as they relate to the issues of the Coastal Zone

Management Plan, when conflicts arise between my agency and other agencies

of EOEA as to the consistency of my agency's action with the Coastal Zone

Management Plan, that the Secretary invoke the conflict resolution process,

as established by Chapter 21A of the General Laws, Section 4, first by

informal consultation and then if necessary, by formal proceedings. A

statement of findings shall be prepared for all such formal proceedings.

I am currently reviewing the proposed submission in detail and support

the policies relevant to my agency and the overall concept of the Plan.

This statement of agreement should not be construed to change, alter or

affect statutory powers within my agency.

Sincerely,

David Standley/
Commissionerf

207

RICHARD E. KENDALL-
COMMISSIONER/6& ewe4o/naaz

March 10, 1977

Evelyn F. Murphy, Secretary
Executive Office of
Environmental Affairs
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202

Dear Secretary Murphy:

Inasmuch as the implementation of the Coastal Zone Management
Program will require the coordination of programs within my agency
with other EOEA agencies, and with the Office of the Secretary, I
hereby express my support for the program. I hereby request to
jointly implement the program. I accept the final Coastal Zone
Management Plan, as approved by the Governor, as a statement of
the state environmental policy for the coastal zone.

I further agree that:

(1) I will adopt and incorporate the rules and regulations
promulgated by the Secretary for implementation of the program, to
the extent permissible by law.

(2) Following proper procedures, I will adopt within my
agencies,rules, regulations, and appropriate procedures for those
parts of the Plan dependent upon the authorities and statutory
responsibilities of my agencies in order to improve the coordina-
tion of activities and programs within EOEA, pending formal
approval of the Plan by the Governor.

(3) I will provide legal standing in my affected agencies'
proceedings for other agencies within EOEA, if so requested.

208

Evelyn F. Murphy, Secretary
Page 2
March 10, 1977

(4) I request that to enable the Secretary to coordinate and
improve the operations within EOEA as they relate to the issues of
the Coastal Zone Management Plan, when conflicts arise between my
agency and other agencies of EOEA as to the consistency of my
agency's action with the Coastal Zone Management Plan, that the
Secretary invoke the conflict resolution process, as established by
Chapter 21A of the General Laws, Section 4, first by informal con-
sultation and then if necessary, by formal proceedings. A statement
of findings shall be prepared for all such formal proceedings.

I am currently reviewing the proposed submission in detail and
support the policies relevant to my agency and the overall concept
of the Plan. This statement of agreement should not be construed
to change, alter or affect statutory powers within my agency.

Sincerely,

Richard E. Kendall
Commissioner

REK/RL~akc

209

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BRUCE S. GULLION VP4", //aS. jet 021690
COMMISSIONER

March 10, 1977

Evelyn F. Murphy, Secretary
Executive Office of
Environmental Affairs
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202

Dear Secretary Murphy:

I further agree that:

(1) I will adopt and incorporate the rules and regulations
promulgated by the Secretary for implementation of the program, to
the extent permissible by law.

(3) I will provide legal standing in my affected agencies'
proceedings for other agencies within EOEA, if so requested.

210

Evelyn F. Murphy, Secretary
Page 2
March 10, 1977

(4) I request that to enable the Secretary to coordinate and
improve the operations within EOEA as they relate to the issues of
the Coastal Zone Mangement Plan, when conflicts arise between my-v
agency and other agencies of EOEA ;is to the consistency of my
agency's action with the Coastal Zone Management Plan, that the
Secretary invoke the conflict resolution process, as established by
Chapter 21A of the General Laws, Section 4, first by informal con-
sultation and then if necessary, by formal proceedings. A statement
of findings shall be prepared for all such formal proceedings.

Sincerely,

Gullion
Commissioner

BSG/RL:kc

211

hn F. Snedeker
Commissioner
March 18, 1977

Evelyn P. Murphy, Secretary
Executive Office of Environmental Affairs
Leverett Saltonstall Building
100 Cambridge Street
Boston, Mass. 02202

Dear Secretary Murphy:

Inasmuch as the implementation of the Coastal Zone Management
Program will require the coordination of programs within the Metropoli-
tan District Commission with programs of other EOEA agencies and of
the Office of the Secretary, the Commission hereby expresses its
support for the program. We are currently reviewing the proposed
submission in detail, andendorse the policies relevant to the Commission
and the overall concept of the Plan. Subject to our review of the
O ~final plan to determine whether the plan is consistent with the Com-
is mission's responsibilities and authorities, I hereby accept the final
Coastal Zone Management Plan, as approved by the Governor, as a state-
ment of the state environmental policy for the coastal zone, and hereby
request that it be jointly implemented with the Secretary. Again,
subject to our review of the final plan, the Commission agrees to the
following:

(1) The Commission will adopt and incorporate the rules and
regulations promulgated by the Secretary for implementation of the
program, to the extent permissible by law.

(2) Following proper procedures, the Commission will adopt
rules, regulations, and appropriate procedures for those parts of the
Plan dependent upon the authorities and statutory responsibilities of
the Commission in order to improve the coordination of activities and
programs within EOEA, pending formal approval of the Plan by the
Governor.

(3) The Commission will provide legal standing for any of the
agencies within EOEA, at any hearings which may be held involving
issues of the Plan, if so requested.

212

Evelyn F. Murphy, Secretary
Page 2
March 18, 1977

(4) The Commission requests that to enable the Secretary
to coordinate and improve the operations within EOEA as they relate
to the issues of the Coastal Zone Management Plan, when conflicts
arise between the Commission and other agencies of EOEA as to the
consistency of the Commission's action with the Coastal Zone Manage-
ment Plan, that the Secretary invoke the conflict resolution process,
as established by Chapter 21A of the General Laws, Section 4, first
by informal consultation and then, if necessary, for formal proceedings.
A statement of findings shall be prepared for all such formal pro-
ceedings.

This statement of agreement should not be construed to change,
alter or affect statutory powers within the Metropolitan District
Commission.

Sincerely,,

F. SNEDEKER
Commissioner

JFS/RL/SGC:ml

213

$&zr4 ~ ~'e4K" ../?e avlc

March 10, 1977

Evelyn F. Murphy, Secretary
Executive Office of
Environmental Affairs
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202

Dear Secretary Murphy:

I further agree that:

(1) I will adopt and incorporate the rules and regulations
promulgated by the Secretary for implementation of the program, to
the extent permissible by law.

(2) Following proper procedures, I will adopt within my
agencies, rules, regulations, and appropriate procedures for those
parts of the Plan dependent upon the authorities and statutory
responsibilities of my agencies in order to improve the coordina-
tion of activities and programs within EOEA, pending formal
approval of the Plan by the Governor.

(3) I will provide legal standing in my affected agencies'
proceedings for other agencies within EOEA, if so requested.

214

Evelyn F. Murphy, Secretary
Page 2
March 10, 1977

(4) I request that to enable the Secretary to coordinate and
improve the operations within EOEA as they relate to the issues of
the Coastal Zone Management Plan, when conflicts arise between my
agency and other agencies of EOEA as to the consistency of my
agency's action with the Coastal Zone Management Plan, that the
Secretary invoke the conflict resolution process, as established by
C~hapter 21A of the General Laws, Section 4, first by informal con-
sultation and then if necessary, by formal proceedings. A statement
of findings shall be prepared for all such formal proceedings.

Sincerely,

Frederic WitrpJr.
CommissionerW
FW/RL:mc

215

Memorandum of Understanding Between
the Executive Office of Environmental Affairs
and the Energy Facilities Siting Council
Relative to the Coastal Zone Management Plan

This Memorandum of Understanding sets forth the areas of responsibility
and the operating procedures to be followed by the EFSC and the EOEA under
the Coastal Zone Management plan.

Statement of Existing Agency Powers

1. The EOEA and its appropriate departments and divisions are responsible
for carrying out state environmental policies and enforcing state environ-
mental laws.

2. Under the Coastal Zone Management Act, the EOEA has the responsibility
for insuring compliance with the state Coastal Zone Management plan, as
approved by the Governor and implemented by the regulations of the Secretary
of EOEA.

3. The EFSC has the mandate under M.G.L.A. Chapter 164, Section 69G, et. seg.
to insure a necessary energy supply for the Commonwealth with a minimum
impact on the environment at the lowest possible cost.

4. Pursuant to its statutory scheme, the EFSC reviews proposals for major
. ~energy facilities submitted to it by utilities and other energy companies.
In its review process the EFSC must determine whether the proposed facilities
are consistent with current health, environmental protection, and resource
use and development policies as adopted by the Commonwealth. The EFSC may
inquire into the need for the facility, the economics of the facility and
alternative proposals and sites. An approval from the EFSC is required
before an applicant commences construction on any energy facility subject to
the act.

Responsibilities under the Coastal Zone Management Program

In agreeing to the following procedures and responsibilities, the EOEA
and EFSC recognize the statutory limitations of both agencies and do not
intend this document to expand or limit their existing statutory powers in
any way.

1. The EFSC hereby expresses its support for the Coastal Zone Management
program and agrees to cooperate and coordinate with -the EOEA in the imple-
mentation of said program.

2. The EFSC hereby agrees to recognize the final Coastal Zone Management
Plan, as approved by the Governor, as a statement of health, environmental,
and resource use and development policies of the Commonwealth in the
coastal zone.

. ~3. The EFSC hereby agrees to act consistently with the policies of the plan
and to amend or adopt such regulations and procedures as may be necessary to
implement those parts of the plan which fall under its jurisdiction, including,
but not limited td':

216

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a) a regulation or administrative bulletin providing for cooperation
between the EFSC and the EOEA on the review of any Long-Range Forecast,
Supplement, Notice of Intention to Build an Oil Refinery, or Certificate of
Environmental Impact and Public Need in which an energy facility is proposed
for the coastal zone. Such regulation or bulletin will include provisions

i) that all such submissions will be forwarded to the EOEA for
comment and review prior to any hearing before the EFSC;
ii) that the EOEA and the EFSC will cooperate on developing guide-
lines for data for initial review pursuant to M.G.L. Chapter
164, Section 691 (3); and
iii) that such guidelines will contain a requirement that for any
proposed coastal facility, an applicant provide information
for at least two alternative sites, one of which shall be an
inland site.

b) a regulation or administrative bulletin that recognizes that the
administration of the Coastal Zone Management plan by the EOEA or any subdivi-
sion thereof may be substantially and specifically affected by a proceeding
before the EFSC in which the proposed site or alternatives are located in
the Coastal Zone and will therefore recognize the standing of the Coastal
Zone Management office in any such proceeding.

4. In conducting its review of facilities proposed for critical areas of
environmental concern, the EFSC will give prime consideration to the environ-
mental impact in these areas. While thus insuring a minimum impact on theS
environment in such critical areas, the EFSC will continue to consider the
need for a necessary energy supply at the lowest possible cost and will
retain its final power under Massachusetts law over the siting of energy
facilities.

5. The EFSC agrees to adopt forthwith rules and regulations which will
implement paragraphs 2, 3 and 4 of their MOU, and the CZM agrees that upon
adoption of satisfactory rules and regulations by EFSC, decisions by the
Council will be deemed for any federal license or permit, to be consistent
with the CZM Program under the provisions of Section 307 of the CZMA.

For the Executive Office of Environmental Affairs:

For the Enerly- Facilities Siting CoSIcil:

217

FREDERICK P. SALVUCCI 4tJe ,'4Ac.Ie/
SECRETARY
11 January 1978

Secretary Evelyn Murphy
Executive Office of Environmental Affairs
100 Cambridge Street - 20th Floor
Boston, Massachusetts 02108

Dear Secretary Murphy:

By this letter, the Executive Office of Transportation and Construction (EOTC), on
behalf of itself and its constituent agencies and authorities, hereby expresses
its support for the Massachusetts Coastal Zone Management Program formulated by
your Office. EOTC agrees to cooperate and coordinate with the Executive Office of
Environmental Affairs (EOEA), insofar as consistent with existing statutory respon-
sibilities and limitations, in implementing the policies of the Program as they
relate to transportation policies, programs, and projects.

In particular, EOTC supports the promotion of major public infrastructure including
transportation projects primarily to serve already-developed coastal areas, as pro-
vided for in Policy 26 of the Program, and the general implementation mechanisms
discussed in the Program for that policy. Consistent with these principles, EOTC
agrees to work with the Office of Coastal Zone Management within EOEA to establish
specific administrative procedures that ensure that:

1. CZM receives notice of all major transportation projects, as defined
in Policy 26, proposed for location within the coastal zone;

2. CZM receives sufficient opportunity and information during the systems
planning phase, or an equivalent planning stage, to review the consis-
tency of such proposed major transportation projects with Policy 26;

3. where a proposed major transportation project will be financed in whole
or in part with federal funds, CZM makes a determination of consistency
or inconsistency with Policy 26 for purposes of compliance with the
federal consistency provisions of the Coastal Zone Management Act of
1972, P.L. 92-593 (Section 307 of the Act) by the completion of the
systems planning phase or its equivalent, which determination shall be
conclusive as to issues relating to Policy 26;

4. where a proposed major transportation project will be financed without
the use of federal funds, and where CZM determines the project to be
inconsistent with Policy 26, the Secretary of Transportation and Con-
struction will consult with the Secretary of Environmental Affairs to
determine how the inconsistencies might be resolved; that, if they are
unable to agree, the Secretary of Transportation and Construction will
bring the proposed project before the state's Development Cabinet to

218

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review how state priorities for meeting transportation needs and
coastal management can best be reconciled with respect to this
particular project; and that, if the Development Cabinet is unable to
resolve the issue to the satisfaction of the Secretaries of Transportation
and Construction and Environmental Affairs, either may bring the issue to
the Governor for similar review; and

5. no consistency finding shall be required for the release of federal
funds to finance the systems planning phase or its equivalent.

These specific administrative procedures may be embodied in a Memorandum of Under-
standing between EOTC and EOEA, or such other form as EOTC and CZM may deem appro-
priate.

The EOTC further agrees to collaborate with CZM in developing administrative pro-
cedures for implementing federal consistency requirements with respect to non-major
transportation projects and with respect to other applicable policies of the Program
other than Policy 26.

Sincerely,

Frederick P. Salvucci

FPS:bwp

219

Appendix C.
Coordination with Existing Plans,
Local, Regional, State Interstate
and Federal

APPENDIX C

COORDINATION WITH EXISTING PLANS
Local, Regional, State, Interstate, and Federal

The Massachusetts CZM4 Program, from its very beginning in the Spring
of 1974, was determined to make maximum use of existing governmental
plans both to guide the direction of the program and to provide needed
data. Plans were identified; contracts made with governmental agencies
responsible for these plans; plans were examined; pertinent portions in-
corporated into the program; and conflicts, if any, identified. This
coordination process is described in the following sections.

LOCAL GOVERNMENT PLANS

In the first year of program development, coastal regional planning
agencies were contracted by CZM4 to report on local government plans
and their pertinenc-r to coastal zone management. In the spring and
summer of 1975, two law student interns gathered and analyzed the zoning
by-laws, ordinances, and maps of all communities in the coastal zone.
Also$, CZM staff collected copies of existing community open space,
redevelopment, port and harbor development and historic district plans.

Coordination with these plans was achieved through membership by
local governmental agencies on regional citizen advisory committees.
(see Appendix B: Public Participation - Public Information). In
addition, CZM staff met during the second and third year of program
development with individual municipal redevelopment authorities, and
selected port and harbor and economic development commissions. In the
course of preparing the chapter on coastal regions, meetings were held
in each coastal community to discuss the CZM program and its policies.
Selectmen, City Council members, planning board members, conservation
commission members, industrial development commission members and
recreation department officials were invited to these meetings. Starting
in the summer of 1976 and continuing through the winter of 1977, CZM
staff arranged these meetings for the Upper North Shore, Lower North
Shore, South Shore, and Plymouth Bay regions. During the same time the
Cape Cod Planning and Economic Development Commission and the South-
eastern Regional Planning and Economic Development District, under
contract to CZM, set up similar community by community meetings for
Cape Cod, Buzzards Bay, and Mt. Hope Bay. For the Boston Harbor
region, a CZM staff member met individually with redevelopment
authorities, conservation commissions, and municipal planning offices.
In all these town-by-town meetings, the policy objectives of the CZM
program were presented; community plans and goals for specific
geographic areas discussed; and the possibility of incorporating these
into the CZM program explored.

As a result of these coordination efforts, the CZM program, in
its chapter on coastal regions, reflects the several priorities of
local government studies or plans with respect to (1) major port and
harbor development and urban waterfront development (such priorities
are reflected in the SADA designations;see Policy (20)) and (2)
coasallyrelated open space and recreation acquisitions (see Policy 24).

221

LOCAL ZONIN"G BY-LAWS

Coordination
With
Wetlands Flood- Local & Potential
By-Law or plain Wetlands Regional Conflict
Town Zoning District By-Law Restricted Agencies with CZM Plan

Salisbury Yes No Yes Yes 8/76 lb
Newburyport Yes No Yes Yes 8/76 lb, 3
Newbury Yes Yes No Yes 8/76 lb, 3
Rowley Yes No Yes Yes 10/76 lb
Ipswich Yes Yes Yes Yes 9/76 lb, 3
Essex Yes Yes No Yes 9/76 lb
Gloucester Yes Yes Yes No 9/76 lb, 2
Rockport Yes No No No 9/76 la
Manchester Yes Yes No No 9/76 lb
Beverly Yes No No No 10/76 la
Salem Yes Yes No No 10/76 lb
Marblehead Yes No No No 7/76 la
Swampscott Yes No Yes No 9/76 la
Lynn Yes No No No 10/76 la, 2
Nahant Yes No Yes No 7/76 lb
Saugus Yes Yes Yes No 8/76 lb
Revere Yes No No No 10/76 la
Chelsea Yes No Yes No 9/76 lb
Everett Yes No No No 11/75 la
Boston Yes No No No 6/76 la
Quincy Yes No Yes No 9/76 la
Weymouth Yes No Yes No 10/76 lb
Hingham Yes Yes Yes No 1/77 lb
Hull Yes No No No 1/77 la
Cohasset Yes Yes Yes Yes 8/76 lb
Scituate Yes Yes Yes No 9/76 lb, 3
Marshfield Yes Yes No Yes 8/76 lb
Norwell Yes Yes No Yes 9/76 lb
Pembroke Yes No Yes Yes 9/76 lb, 3
Kingston Yes No Yes No 9/76 lb
Duxbury Yes Yes Yes Yes 9/76 lb
Plymouth Yes Yes No No 9/76 lb
Wareham Yes Yes Yes Yes 3/77 lb
Marion Yes No Yes Yes 1/77 lb
Mattapoisett Yes No Yes No 12/76 lb
Fairhaven Yes Yes Yes No 1/77 lb
Achushnet No Yes No No lb
New Bedford Yes No Yes No 2/77 b
Dartmouth Yes Yes Yes No 2/77 lb
Westport Yes No Yes Yes 1/77 lb
Fall River Yes No No No 1/77 2, la
Freetown No No No No 12/76, 1/77 la
Somerset Yes No Yes No 10/76 la

222

Coordination
With
Wetlands Flood- Local & Potential
By-Law or plain Wetlands Regional Conflict
Town Zoning District By-Law Restricted Agencies with CZM Plan

Swansea Yes No Yes No 10/76 lb
Dighton Yes No No No 11/76 la
Berkley No No No No 11/76 la
Rehoboth Yes No
Seekonk Yes No No No la
Bourne Yes No Yes No 7/76 lb
9/76
10/76
Falmouth Yes Yes No No 9/76 lb
Sandwich Yes Yes Yes No 9/76 lb
Mashpee Yes Yes Yes No 7/76, 8/76 lb
Barnstable Yet Yes No No 7/76 3
10/76
10/76
Yarmouth Yes Yes Yes No 9/76 lb
Dennis Yes Yes No No 7/76, 8/76 lb
Brewster Yes Yes Yes No 9/76 lb
Harwich Yes Yes No No 7/76 lb
Chatham Yes Yes No No 9/76, 10/76 lb
Orleans Yes Yes Yes Yes 7/76, 8/76 None
Eastham Yes No No Yes 6/76, 7/76 lb
Wellfleet Yes No No No 7/76 la
Truro Yes No No Yes 7/76, 8/76 lb
Provincetown Yes No Yes No 7/76, 9/76 lb
Nantucket Yes NO Yes No 12/76 lb
Chilmark Yes Yes* Yes* Yes 12/76 None
Edgartown Yes Yes* Yes* Yes 12/76 None
Gay Head Yes Yes* Y es* Yes 12/76 None
Oak Bluffs Yes Yes* Yes* Yes 12/76 None
Tisbury Yes Yes* Yes* Yes 12/76 None
West Tisbury Yes Yes* Yes* Yes 12/76 None

*A coastal district which includes wetlands and floodplains was established by
the Martha's Vineyard Commission for the entire island.

223

With respect to local government plans which have been adopted and
have the force of law, that is municipal zoning, the CZM program is
consistent with locally designated historic districts (see Policy(12))
and with the general pattern of zoning in interior areas of the coastal
zone. In some other respects, however, the CZM program does conflict
with existing municipal zoning. These conflicts are identified in the
following table as are the dates of CZM town-by-town meetings. These
conflicts are of three basic types as indicated in the last column of the
table:
(1) a. municipal zoning allows for uses on salt marshes, beaches,
barrier beaches, shellfish beds, salt ponds, and floodplains
which are contrary to CZM Policy (1), and the
municipality has not adopted wetland or floodplain by-laws
or ordinances to condition or deny construction in such areas.

b. municipal zoning sanctions uses of salt marshes, beaches,
barrier beaches, shellfish beds, salt ponds, and floodplains
which are contrary to CZM policy (1), but the
municipality had adopted wetland or floodplain by-laws or
ordinances to condition or deny construction in such areas.

(2) municipal zoning allows for uses in port areas which are not
maritime dependent (Policy (7), and

(3) municipal zoning allows for uses that may be incompatible with
the features and characteristics to be protected in areas to be
designated as Areas for Preservation or Restoration/Areas of
Critical Environmental Concern (Policy (2)).
The first type of conflict is resolved by the new Zoning Enabling
Act (MGLA Ch. 40A, s. 3) which specifically prescribes zoning ordinances
or by-laws which would "exempt land and structures from floodplain or
wetlands regulations established pursuant to general law." These
"regulations" include the Wetlands Protection Act (MGLA Ch. .3., s. 40)
whereby Conservation Commissions review and issue permits for wetlands
alterations subject to (a) appeal to or by the Commissioner of the
Department of Environmental Quality Engineering and (b) conformance with
regulations promulgated by the Commissioner. They also include
restrictions under the Coastal Wetlands Restriction Act (MGLA Ch. 130,
s. 105) which authorizes the Commissioner of Environmental Management
to place orders on property owners' deeds restricting alterations to
wetlands. Both the state Wetlands Protection and Restrictions Acts
thus supercede local zoning.

Under the CZM Program, technical assistance (Policy 16) will be
provided to communities to assist in bringing local zoning ordinances into
conformance with the intent of Policy (1). Notice will be given whenever a
new wetlands area is to be restricted under the Wetlands Restriction Pro-
gram, thereby giving communities an opportunity to voice their concerns
and strive for resolution of conflicts. Notice will also be given of
revised regulations for the Wetlands Protection Act and a public
hearing held at which these concerns can be addressed.

The second type of conflict will be addressed on a case-by-case
basis. Policy (7) stipulates that port interests and public agencies
be consulted and, if necessary, a public hearing be conducted whenever

224

a project in a port area may be denied required state permits or be
deemed, for federal permits or assistance, inconsistent with the CZM
program because it is presumed to conflict with another possible use.
Assistance will also be provided to port communities to develop harbor
plans and zoning ordinances or by-laws in conformance with the CZM
policy intent of promoting maritime dependent development in port areas.
(Policy 20)
The third type of conflict will be resolved through the APR/ACEC
designation process. Public notice will be given of any proposed APR/ACEC
designation to be implemented by the Secreatary of Environmental
Affairs' power to establish Areas of Critical Environmental Concern.
Affected local governments will be consulted and a public hearing
held. If the designation proceeds, technical assistance will be pro-
vided to aid in bringing municipal zoning by-laws or ordinances into
conformance with the purpose of the designation.

REGIONAL PLANNING AGENCY PLANS

During each of the three years of program development, the coastal
regional planning agencies have been contracted by CZM to coordinate
existing regional plans and on-going regional planning efforts with the
CZM program. Regional planning agency staff have also been members of
the Planning Committee of the Governor's Task Force on Coastal Resources.
Through their participation on the Planning Committee, the coastal
regional planning agencies had an opportunity to shape the CZM program
and assure consistency with existing regional plans. Many of the
regional planning agency plans' recommendations are incorporated in
the chapter on Coastal Regions. For example, the recommendations of
the Metropolitan Area Planning Council's Open Space Plan for coastal
open space are reflected both in the priority given to urban waterfront
open space acquisition and the acquisition recommendations made for
the Lower North Shore, Boston Harbor and South Shore. (Policy 24).

In recognition of the similarity in goals and planning timeframe
between the CZM program and the "208" areawide waste water management
planning being conducted by regional planning agencies, special efforts
to coordinate the two programs were made. CZM prepared a paper cir-
culated to "208" planning agencies describing the program's objectives
and policy thrusts and setting further the criteria by which "208"
agency planning outputs would be reviewed for consistency with the
CZM program. In addition, CZM participated selectively in "208" public
participation meetings as did 208 agency personnel in CZM public
participation meetings. Since the '208" plans are not yet completed,
the process of coordination between CZM and areawide wastewater
management planning is on-going.

CZM also developed a special relationship with the Martha's Vine-
yard Commission so that the policies of the CZM program fitted with the
unique regional-level regulatory powers exercised by the Commission.
Specifically, CZM contracted with the Commission to analyze how the
regulatory powers of the Commission could be relied upon to implement
the CZM program on the Vineyard, to explore the feasibility of the
Vineyard Commission qualifying as a "segmented" program, and to develop
an open space and recreational development strategy for the island.
The Vineyard Commission will, under the Massachusetts 306 program,

225

continue to enjoy a special status, and will be contracted to
implement parts of the CZM program on the island.

CZM also met with regional transit authorities on Cape Cod, south-
eastern Massachusetts, and metropolitan Boston to coordinate recommen-
dations for demonstration projects and transit studies for transporta-
tion to coastal recreation. Transit authorities have plans for extending
or creating bus and subway services both within urban areas and outlying
areas. Those plans which entail physical construction within the coastal
zone have been reviewed, and the CZM program does not conflict with them
(see listing of transportation projects in General Development and Public
Investment) .

The process of coordinating with regional plans did not surface
any outstanding conflicts with the CZM program. While the priorities
for action in existing regional plans and the CZM program are not
completely identical, the policies of the CZM program have generally
been viewed as supportive and compatible with those in existing reg-
ional plans.

STATE AGENCY PLANS

The CZM program has been coordinated with six distinct state
plans. These plans and their relationship to the CZM program are dis-
cussed below.

-- Statewide Comprehensive Outdoor Recreation Plan (SCORP') has
been prepared by the Department of Environmental Management (DEM) and
recommends that recreational needs be met where demand is greatest and
supply most deficient and that priority be placed on satisfying the
needs for the most widely demanded recreational activity. The Plan
identifies swimming as the most popular recreational activity and
finds that urban areas, particularly the greater Boston area is the
area of highest need for new recreational facilities. DEM reviewed
drafts of the CZM program. The CZH program incorporates both the
SCORP' data base and demand methodologies and endorses the SCORP' prior-
ities by giving high priority for both public beach acquisition and
open space/recreation development in urban areas. (Policy 24)

-- State Growth Policy Plan has been prepared by the Office of
State Planning (OSP). It recommends that new growth and development
be channelled to existing urban centers or to regional development
centers and that state actions, in particular state programs of public
investment, adhere to the policy and support urban redevelopment. OSP,
through its membership on the Planning Committee of the Governor's
Task Force on Coastal Resources, reviewed various drafts of the CZM
program and advocated explicit incorporation of the State Growth Policy
into the CZM program. Policies 26 and 27 were developed to reflect the
State Growth Policy.

-- Water Quality Basin Plans have been prepared by the Division of
Water Pollution Control (DWPC) to comply with both state and federal
water quality requirements for establishing water quality classifications

226

for stream segments. Plans have been completed for all but one of the
major coastal basins and the proposed classifications do not conflict
with the CZM program. These plans are not enforceable until a public
hearing has been held and the classifications adopted by regulation.
DWPC has also reviewed drafts of the CZM program and endorses its
policy thrusts. However, in identifying areas where water quality
problems are sufficiently severe as to indicate a need for treatment
plant facilities, some of the Basin Plans propose the extension of
sewer service to sensitive environmental or hazard areas. Such exten-
sions would be contrary to the CZM program. These conflicts will
be resolved as sewage treatment plant facility plans are developed.
The process of resolution will be guided by a review of such plans for
conformance to the CZM program, 208 areawide waste water management plans,
to the state's Growth Policy, and DWPC's own policy of denving fundine
for treatment works or collection systems to newly sub-divided areas,
and by evaluation of the severity of water quality problems the treatment
system is designed to ameliorate. (For further detail see
Policy (27).

-- Transportation Plans have been and continue to be prepared by
the Department of Public Works (DPW) in conjunction with regional plan-
ning agencies. The Secreatry of Transportation and Construction, the
cabinet officer in charge of transportation, was a member of the
Governor's Task Force on Coastal Resources and was thus provided an
opportunity to shape the course of the CZM program. DPW has also re-
viewed drafts of the CZM program. Current transportation plans have
been reviewed for consistency with the CZM program. As others are
developed, coordination with the CZM Program will be achieved through
the process outlined under Policy (26).

-- Metropolitan District Commission (MDC) Plans have been reviewed
in the course of preparing the section on the Boston Harbor Region in
Chapter V. MDC was a member of the Boston Harbor Committee which ad-
vised the CZM program during its preparation of that section.

-- Port Plans have been prepared and adopted by MASSPORT for the
airport (Logan Masterplan). The Logan Masterplan does not conflict with
the CZM program. No plan has yet been prepared or adopted for the sea-
port. MASSPORT has been consulted in the development of the CZM program,
and CZM's port and harbor policies have been supported by MASSPORT.
MASSPORT was also an active participant in the preparation of the section
of the regional chapter on Boston Harbor.

INTERSTATE AGENCY PLANS

The New England River Basins Commission's Southeastern New England
Study (SENE) is the only interstate plan affecting the Massachusetts
coastal zone. The Governor's Task Force on Coastal Resources and
CZM staff, in the fall of 1974 and winter of 1975 devoted much effort
to reviewing the draft SENE plan and endorsed its general thrusts.
The Commission's Executive Director was a member of the Governor's
Task Force on Coastal Resources and participated in the development of
the CZM program. Extensive use was made of the information and policy
direction provided by SENE and no conflicts have been identified be-

227

tween the SENE plan and CZM.

Interstate consultation as required by 923.34 of 15 CFR Part 923
on the development of individual State CZM Programs as been achieved
as detailed in the following letters.

Although other interstate planning is occuring involving the
Massachusetts Coastal Zone, such as New England Regional Fisheries
Management Council, no plans have been adopted by those other agencies
which significantly affect this program.

228

OFFICE F 01C" Mi'II[NSIV.. PLANNING
STATE OF NEW [IMPN!ImFi'
STATE 1tO0tSF ANNEX, CON'CORD I]9

JAN6 1970

January 3, 1978 COASTALZ
Xec. Office ?, V,. ....
' '",,u metalA/fairs

Ms. Kathrmn Cousins
North Atlantic Regional Coordinator
Office of Coastal Zone Management - NOAA
3300 Whitehaven Street, N.W.
Washington, D. C. 20235

Dear Kathy:

This office has consulted with the Executive Office of Environmental
Affairs of the Commonwealth of Massachusetts on their proposed Coastal Zone
Management Program as required in section 923.34 of 15 CFR Part 923, CZM
Program Approval Regulations and because it is in the interest of this
state that such consultation occur.

Interstate consultation has occurred regularly at the New England -
New York Coastal Zone Task Force meetings at which each state has the
opportunity to discuss the progress of their program development and comment
on the progress of neighboring states. This process, with the related
printed information to be discussed at the meetings, has permitted us to
follow the development of the Massachusetts program. In addition, we have
received relevant printed reports directly from both the Executive Office
of Environmental Affairs and from your office.

This office has reviewed this information and I met with the program
director, Mr. Eric Van Loon, and with Mark Kraczkiewicz and Daniel Calano
of the Massachusett's program at their offices on December 14, 1977 to
discuss how our programs coincide at the state border. Differences between
their program boundary and our proposed three zoned boundaries were discussed
as was progress on agreeing to an interstate boundary in the ocean. Also,
discussed were their proposed regulations and plans for the'tidal Blackwater
River which flows from the saltmarshes behind Salisbury Beach, MA, to Hampton
Harbor, N.H. Other topics briefly discussed included erosion, commercial
and sport fishing, and marina and second home developments in Massachusetts
between the state line and Newburyport. Massachusetts brought up the
following three topics: New Hampshire's existing and proposed legislation
and regulations regarding saltmarshes, the Seabrook power plant, and a review
of our proposed coastal program authorities in each of the three zones.

229

Ms. Kathryn Cousins page 2 January 3, 1978

Please let me know if you have any questions.

Sincerely,

Laurice E. Goss, Jr.
Director, Coastal Resources
Management Program

LEG:am

cc: Eric Van Loon, Massachusetts CZM

230

COASTAL ZONE e1J'O'jt '/ a/' JC"Jd tI2'}
MANAGEMENT

December 16, 1977

Mr. Robert Knecht
Acting Associate Administrator
U.S. Department of Commerce
Office of Coastal Zone Management
3300 lhiLehaven Street, N.W.
Page Building #1
Washinil: on, D.C. 20235

Dear Bob:

This joint letter from both the Massachusetts and Rhode Island CZM
programs summarizes the consultation that has taken place between the
two programs on interstate boundaries pursuant to the requirements of
15 CFR Part 923.34.

CZM program staff from both states met on March 25, 1976 in
Providence specitfically to review the respective elements of each
state's CZM program and the potential for incompatibility in managing
common coastal resources. A later meeting was held for the same purpose
on December 6, 1977. In addition, both states have participated in the
New York-New England CZM Task Force, organized under the aegis of NERBC.
In that forum concerns over the management of common resources have been
broached, and, when possible, regional approaches have been taken to
address them.

In the course of these meetings, three interstate issues between
Rhode Island and Massachusetts have been raised. Their status are dis-
cussed below:

1) Ocean Dumping for Dredge Spuil - Brown's Ledge: Controversy has
surroundcd the use of Brown's Ledge as a site for the ocean disposal of
dredge spoil from Providence Harbor and Fall River, and Massachusetts and
Rhode Island have taken differing positions on the use of this site.
Both stuates are, however, aware that this is a mutual problem and will
be working toward a mutually satisfactory solution with the Army Corps of
Engineers.

231

Mr. Robert W. Knecht -2- December 16, 1977

2) Lateral Seaward Boundaries: Massachusetts and Rhode Island, as
well as the remaining New England coastal states, are working through the
New York-New England CZM Task Force to settle disagreements over the exten-
sion of lateral seaward boundaries to the Georges Bank OCS area.

3) Pollution from Mt. Hope Bay into Narragansett Bay: The Rhode
Island CZM Program has been concerned that pollution and new discharges
in Mt. Hope Bay could impact adversely the water quality of downstream
Narragansett Bay. Both the Massachusetts and Rhode Island CZM Programs
incorporate feceral air and water pollution control requirements and thus,
those impacts should be mitigated to the extent mandated by federal law.

Sincerely,

Eric E. Van Looa
Director
Coastal Zon Ianagement

Stepe Olse n
Coastal Resources Center, R.I.

EEVL/fl:tnmc

232

~~~~~* ~Appendix D.
Federal Participation in Developing
the Program

233

APPENDIX D

FEDERAL PARTICIPATION IN
DEVELOPING THE PROGRAM

Under the requirements of the Coastal Zone Management Act, special
provision is made for federal participation in the development of a state's
Coastal Zone Management Program. The nature of that involvement has been
interpreted in a variety of ways by other coastal states whose approches
have helped guide Massachusetts in best directing its own federal parti-
cipation efforts. From the beginnings of its Coastal Zone Management Pro-
gram in the summer of 1975, Massachusetts has been cognizant of the integral
role which federal agencies have played and will continue to have in shaping
the future uses and development of the Massachusetts coast.

The first steps were to educate federal agencies about the M1CZM
Program -- its origins and direction - and to gain a clear understanding
of the respective roles and authorities the federal government held in re-
lation to our coastal zone. The New England River Basins Commission was in-
strumental in establishing lists of federal agency regional offices whose
technical and policy level work would weigh significantly in the formation
of the Prga's planning and management approach. These lists formed the
core for what has become a group of some thirty-five participatory agencies
and was the basis for distribution of a CZM introductory letter in June
of 1975. This correspondence formally introduced the Program, outlined its
purposes and requested pertinent information on federal programs; thereby
marking the beginning of federal involvement in the Massachusetts Program.
Of these thirty-five agencies, several had missions which bore directly on
the coastal zone. CZM staff met with the Environmental Protection Agency,
the U.S. Geological Survey, the Department of Housing and Urban Development's
Flood Insurance Branch, and the Army Corps of Engineers during that summer
to expand its knowledge of the agencies' coastal interests and to define the
relationship of those federal programs and activities to the staters coastal
zone planning.

During its first months, as the staff began to compile and analyze data
and formulate positions on coastal uses, CZM again sought federal involvement
through submission of its reports and newsletters for information and response.
Under a cover letter in April, 1976 copies were distribu-
ted of the CZM newsletter "Coastlines" -- which reported on the Program' s
planning developments and current activities - together with a coastal zone
planning guidebook, "Living by the Sea". The letter requested confirmation of
each agency's CZM designee and invited comment on and participation in the
Program. The majority of responses, however, indicated that substantive federal
involvement would begin with formal reaction to a CZM Plan draft; that in the
absence of such a document, little meaningful interchange could occur.

In the interim between that time and the draft submission, there still
existed a number of steps which were necessary to ensure adequate considera-
tion of federal interests. Two interns, over the summer of 1976, were assigned
the task of interviewing each federal aec's representative and collecting
pertinent background information, including copies of relevent federal regu-
lations, statements of agency missions and administrative repsonsibilities,
and such guidance as had been provided nationally to the agency regarding the
O ~interrelationships between that agency and developing CZM programs. (Refer to
Federal Consultation Chart.) This task continued May through September resulting

234

in the compilation of meeting notes and information into two federal informa-
tion volumes. This resource was heavily relied upon when setting priorities
for future uses of the coastal zone, formulating policies to guide or condition
major activities having direct and significant impact on coastal waters, and
in developing mechanisms by which such priorities and policies could be assured
of implementation. Further steps were taken when Plan authors, in the course
of their work, supplemented and refined their underst anding of federal programs
by directly contacting federal agencies where federal agency missions were shown
to be directly pertinent to setting priorities and instrumental to policy fim-
plementation. This 'kind of contact has helped CZM staff in expanding its grasp
of f ederal/state interactions. Similarly, it has allowed federal agencies to
follow the development of the Program and provided them with opportunities to
participate directly in developing coastal policies.

In November, 1976, the Program Preview was formally distributed to each
of the thirty-five federal agencies for review and comment.
The document represented the sum of C2M's completed efforts and was the focus
of the Program's first comprehensive review by federal, as well as state and
local, officials. A formal day-long presentation - with commentary by members
of the Coastal Zone Task Force, Governor Dukakis, Secretary of Environmental
Affairs Evelyn F. Murphy, and NOAA -- was given on December 16, 1976 with invi~-
tations to attend sent to all of our federal contacts. The presentation offered
an overview of the Program's policies and provided a forum for publicly airing
comments and concerns.

Over the course of the next two months, letters of comment came from the
majority of federal agencies. Each was included in a compendium of comments
and distributed amongst CZM staff for consideration when revising. the Preview
into a formal Program Submission; all received CZM written response. Those
federal agencies who had not responded by January were contacted by telephone0
as a reminder of the importance of such comment to ensure consideration in amen-
ding the document. In cases where we had no response after a reasonable period
of time, letters were sent encouraging prompt review.

The serious nature of some responses warranted special consideration. In
order to reconcile these conflicts and isolate the areas of concern, CZM arra-n-
ged meetings with several federal agencies. These meetings were held during
January with the Corps of Engineers, the-Department of Transportation, the De-
partment of Housing and Urban Development's Planning and Community Development
section and the Flood Insurance Program, the Department of Interior and its six
agencies, the Environmental Protection Agency and the Federal Energy Administration.
The sessions were useful in clearing up misunderstandings, airing serious con-
cerns and mutually resolving problem issues. At the conclusion of these meetings
CZM corresponded in writing with the CZM federal contact and each of the par-
ticipants to reiterate the points discussed and results achieved. The meetings'
accomplishments have been reflected in both specific changes and additions made
when converting the Program Preview into a Program Submission. (See Attachment 3).

Other Participation Opportunities

During the life of the Program, many of its activities have brought federal
involvement on particular coastally-related issues, and CZM's evolving policies
have been the basis for staff A-95 and NEPA review comments. In the course of__
many such reviews, relevant federal agencies were contacted to discuss certain
projects and CZM's position on them. In all such reviews, the appropriate federal

235

agency was informed in writing of CZM's concerns and recommendations. These
review processes have, helped to shape CZM's policies on an issue-specif ic basis
* ~~and maintain a dialogue with various federal agencies.

The Office has also been deeply involved in the North Atlantic OCS oil
and gas development process and has worked closely with the Bureau of Land
Management, the U.S. Geological Survey, the U.S. Coast Guard and the federal
Office of Coastal Zone Management. Our responses to OCS-related issues have
served as an indication of overall CZM policy and our continuing exchange with
these agencies has provided a direct statelfederal information link.

The Program has also established a strong citizen participation effort
which has included sub-regional meetings to discuss the Plan and solicit input.
These meetings have called for open participation and have been announced regu-
larly in CZM's newsletter, "Coastlines", distributed to all CZM federal contacts.
The very frequency of thesei meetings and the diversity of meeting locations made
it possible for all Massachusetts-based regional federal offices to attend.

It is strongly felt by CZM that its efforts to establish both formal and
informal working relationships with federal agencies of the Massachusetts CZM
Program have provided the opportunity for and succeeded in establishing a full
participatory process with its federal contacts.

236

FEDERAL CONSULTATION CHART

1975-6 4/15/76 Agency Summer '76 Program Agency CZM/Federal
Agency Meeting Letter Response Interview Preview Response Meeting

Air Force * * * *

Navy * * * * *

Corps of
Engineers * * * * * * *

HUD/Regl .
Administ. * * * * *

HUD/Flood * * * * * *

HEW * * * *

MARAD * * * * *

EDA * * * * * *

USDA/SCS * * * * * *

NERCOM * * * *

NERBC * * * * *

NEIWPCC * * *

FRC * *

GSA * * * * *

EPA * * * * * * *

DOT * * * *

FPC * * * * *

FEA * * * * * *

ERDA * * * * *

Marine Fish-
eries Comm. * * (requested that N.A.M.F.C. be ommitted from list)

NMFS * * * * *

OCZM * * * *

NOAA * * * *

237

1975-6 4/15/76 Agency Summer '76 Program Agency CZM/Fed.
Agency Meeting Letter Response Interview Preview Response Meeting

DOI * * * * * *

NPS * * * * *

USGS * * * * * *

BLM * * * * * * *

Mines * * * * * *

BOR * * * * *

USF&W * * * *

238

0 Appendix E:
The CZM Boundary: Road by
Road Description

BOUNDARY APPENDIX

The following roads depict the inland boundary of the Coastal Zone.
(For consistency, the actual boundary is 100 feet inland of the inland
side of the road.)

As stated in the Coastal Zone Chapter, where the road may have
excluded some significant resource areas, the boundary line departs from
the road to encompass them. Tidal rivers and adjacent uplands are
included, at a minimum, to the extent of vegetation affected by measur-
ably saline water. Anadromous fish runs are included, as well as their
floodplains, to the fresh water breeding area, if such area is within a
coastal town.

Upper North Shore

At New Hampshire border follow Rt. 1 south to Rt. 110. Follow
Rt. 110 west to 195. Follow I95 south over Merrimack River. Follow
Ferry Road east to High Street into Newburyport. Take Rt. 1 south to
Boston Road. Go west on Boston Road, then south on Middle Street. Turn
west onto Orchard Street to Central Street. Turn southeast on School
Street, then east on Elm Street to Rt. 1. Take Rt. 1 south to Central
Street in Rowley. Take Central Street into Rowley center. Follow
Rt. IA and Rt. 133 through Ipswich. At Candelwood Golf Club, turn south-
west onto Candelwood Road. Take Chebacco Road south to Choate Road.
Follow Choate back to Rt. 133. Follow Rt. 133 into Essex. Take right
onto Martin Street heading southwest. Take Western Avenue. Turn left
onto Apple heading southeast. Then head north on Southern Avenue back
to Rt. 133. Follow Rt. 133 to Rt. 127. Follow Rt. 127 through
Manchester into Beverly (Lower North Shore region).

Cape Ann Boundary (All land seaward of this boundary is included in
the Coastal Zone.) At Rt. 128 and Washington Street interchange, follow
Washington Street south into Gloucester center. Take a left on Prospect
to Friend Street. Take Webster Street to Eastern Avenue. Take a right
onto Witham Street to Starknaught. Follow Starknaught into Rockport
joining Thatcher Road (Rt. 127A). Follow Thatcher Road into South St.
Take a left onto Prospect Street. Take Summer Street west to Parker St.
Then take Railroad Avenue to Granite Street. Follow Granite Street
(Rt. 127) to Curtis St. Follow Quarry Road from the end of Curtis St.
southwest to Leverett St. Follow Leverett St. to Washington - to N.
Kilby Street - to Colburn St. then back to Washington St. Take a left
onto Dennison St. to Holly Street back to Washington. Follow Stanwood
St. to Cherry St. to Poplar St. back to Washington St. and the Rt. 128
rotary.

Lower North Shore

Southwest on Rt. 127 from Manchester into Beverly to Lothrop St.
Southwest on Lothrop St. to Water St. Northwest on Water St. to Rantoul
St. North on Rantoul St. to Elliot St. Northeast on Elliot St. (also
Rt. 62) to Rt. 128. Rt. 128 south to Andover St. (Rt. 114). Southeast
on Rt. 114 to Rt. 107. East on Rt. 107. South on Rt. IA through Salem,
and Swampscott to Lynn. North 1 block to Commercial St. in Lynn. West
on Boston and Maine Railroad to Summer St. West on Simmer St. to

240

Hamilton St. (was Hesper St.). West on Hamilton St. and then on to
Holland. Left onto Elm St. and on to Central St. Central St. to
Winter Street. Winter St. to Lincoln. Follow Lincoln to the Saugus/
Revere line (Boston region).

Exception - Follow line 100 feet inland of 100 year flood contour
around Forest River (between Salem and Marblehead) ending landward
extension at Boston and Maine Railroad tracks.

Boston Boundary

Southwest on Salem St. (Lincoln St.) from the Saugus/Revere line.
Southeast on the Bennett Highway. Through rotary then southeast on
Rt. 1. South on Rt. 1 to IA (Revere Beach Parkway) to intersection with
northeast expressway. Southwest on N.E. expressway to Webster Avenue.
Southeast on Webster Avenue to Eastern Avenue. West on Cresent Ave. to
Broadway. South on Broadway to railroad. Southeast on railroad to
Willow St. South on Willow St. to Congress Avenue to Park Street. West
on Park Street to Chelsea Square. Northwest on Second Street to rail-
road. West on railroad to Rt. 16. West on Rt. 16 to Amelia Earhart
Dam Road. Cross river on Amelia Earhart Dam Road to railroad. South
on railroad (Somerville) to Mystic Avenue (Rt. 38). Southeast on Mystic
Avenue to Sullivan Square (Charlestown). From Sullivan Square east on
Medford Street to Rt. 95. Southwest on Rt. 95 to Fitzgerald Expressway
(Rt. 3). South on Rt. 3 to Penn Central railroad (before interchange
16). Northeast on railroad track which intersects with Dorchester Ave.
At this intersection a short unnamed street connects with B Street.
Northeast on B Street to Second St. Southeast on Second St. to
Dorchester St. Northeast on Dorchester St. to East Second St. East on
East Second St. to P Street. South on P Street to Swallow St. West on
Swallow St. to Scott St. South on Scott St. to East 8th St. West on
East 8th St. to Patterson St. Southwest on Patterson to Old Colony
Ave. South on Old Colony Ave. to Rt. 3. Rt. 3 to Neponset interchange.
Rt. 203 west to Hallet St. South on Hallet St. to Hilltop St. West on
Hilltop St. to Granite St. North on Granite St. to Minton St. West on
Minton St. to Adams St. South on Adams St. to Dorchester Ave. South
on Dorchester Ave. to Milton town line (middle of Neponset River).
Milton town boundary southeast to intersection with boundary of Neponset
River Reservation. Follow reservation boundary east, southeast, then
northeast across Rt. 3 to intersection with Granite Ave. Then south-
east on Granite Ave. to West Squantum St. Follow West Squantum St.
to intersection of Hancock Street (Rt. 3A). Follow Hancock Street
south to Southern Artery.
Southeast on Southern Artery
(Rt. 3A) to railroad just south of Fore River. East on railroad to
intersection with Main St. (Hingham). East on Main St. which becomes
Winter St. to Rt. 228 (East St). Northeast on Rt. 228 to Summer St.
North on Summer St. to Rockland St. Northeast on Rockland St. to
intersection with Summer St. South on Summer St. to Rt. 3A. East on
Rt. 3A to Cohasset (South Shore region).

South Shore

South on Rt. 3A through Cohasset to Scituate. East on Henry Turner Bailey Rd.
to railroad bed. South on railroad bed to Driftway. West on Driftway to inter-
section of Rt. 3A & Rt. 123. West on Rt. 123 to River St. South on River St. to
Elm St.. S. on Elm St. to West Elm St. South on West Elm to Oldham St. East on
Oldham to Barker

241

St. (Rt. 14). North on Barker St. to Rt. 53. North on Rt. 53 to Water
St. Northwest on Water St. to Rt. 139. East on Rt. 139 to Union St.
North on Union St. to Highland St. East on Highland St. to Spring St.
Northeast on Spring St. to Rt. 3A. Rt. 3A to Old Plain St. West on Old
Plain St. to Cross St. South on Cross St. to Ocean St. West on Ocean
St. to Mt. Skirgo St. West on Mt. Skirgo to North St. Southwest on
North St. to Myrtle St. West on Myrtle St. to Union St. Southeast on
Union St. to Keene St. North on Keene St. to River St. East on River
St. to Temple St. Southeast on Temple St. to Franklin St. North on
Franklin St. to Acorn St. North on Acorn St. to Rt. 3A (Plymouth
region).

Plymouth Bay

South on Rt. 3A through Duxbury to Main Street, Kingston. West on
Main Street to Elm Street. South on Elm Street to Brook Street (Rt. 80).
East on Brook Street to Rt. 3A. South on Rt. 3A to Bourne. Follow the
Bourne-Plymouth town line southwest to Red Brook Road (Buzzards Bay
region).

Mount Hope Bay

Start in Seekonk on Rt. 6 at the Rhode Island border southeast to
Barney (Rehoboth). North on Barney. East on County. South on Mason.
Southeast on Rt. 6 (Swansea). North and East on Millford. South on
Hortonville. East on Main. South on Elm. South on Lees River Road,
Somerset. Southeast on Rt. 6 (Somerset). North on 138. West on Main
Street (Dighton). North and East on Elm. North on Rt. 138 to Taunton/
Dighton corporate line. Along Dighton/Taunton line in Threemile River
to Taunton River, north along Berkley-Taunton line in the Taunton River.
East across Dirt Rd. at approximately 41o51'45" N, 71�06'15" W. North
on Berkley. South on Forest. East on Elm. South on S. Main. South
on N. Main (Freetown). East on Mill. East on Slab Bridge Road. South
on N.Y./New Haven Railroad. North on High. South on S. Main. South on
N. Main, Fall River. South on Western Expressway to I 195. Southwest
on Rt. 138 (Broadway). West on Willianm St. South on Bay St. to Rhode
Island border.

Buzzards Bay

West from Bourne/Wareham town line on Red Brook Road. West on
Route 6-28. Northwest on Route 25. Southwest on I 195. East on Point
Road (Marion). West and south on Route 6 through Marion, Mattapoisett
and some of Fairhaven. South on Shaw Road, Fairhaven. West on Shaw
Rd. North on Weeden. West on railroad grade. South on Pleasant. West
on Cedar Street. North on Fort Street. West on Church. North on Main.
North on South Main, Acushnet. West on Main, Acushnet, New Bedford.
South on River. West on Howard. South on Riverside. West on Coffin.
South on Belleville. West on 1-195. South on Front. West on Wamsutta.
South on Route 18. West on Elm. South on Haus. East on Union. South
on 2nd. South on MacArthur Drive. South on Front. East on Gifford.
South on Harbor. East on Cove. South on Cleveland. East on Rodney.
South on CleVeland. East on Butler. South on Swan. South on Mina.
South on Lighthouse Lane. South on Belmont. West on Portland. South
on Fort. West on Rodney French Boulevard. North on Brock. West on

242

Cove. South on Padanaram to Dartmouth. West on Rogers. South on
Dartmouth. West on Prospect. North on Elm. West on Russells Mills.
South on Tucker. Southwest on Russells Mills. Southwest on Horseneck
Road to Westport. North on Horseneck Road. North on New Fine Hill is
Road. North on Pine Hill Road. West on Country Road. North on Reed.
North on Forge. West on Route 177. South on Drift. West on Hicks-
bridge. North on Main. West on Adamsville to Rhode Island border.

Cape Cod and the Islands

The entire Cape and the islands of Nantucket and Martha's Vineyard
are included in the Massachusetts Coastal Zone Boundary.

Special Note: During the public review of the Draft Environmental Impact
Statement, Cape Cod's citizens commented on the proposed Cape' s coastal
zone boundary. Many felt that the Cape was an ecological unit and
should be managed as a single coastal zone. Others felt that activities
in the interior of Cape Cod would not have direct and significant impact
on coastal waters.

The Cape Cod Advisory Committee voted on December 6, 1977 to include
all of Cape Cod within the coastal zone (assumption made for purposes of
this proposed amendment). In view of the role of regional citizen
advisory councils for program implementation, notably to monitor program
implementation and to raise regional issues, the Cape Cod council will
have a major voice in recommending changes to the program. Based on
experience with program implementation and the kinds of uses taking
place on Cape Cod, the Advisory Council may, at its option, vote on
whether a change in the boundary would be desirable after the first
year of CZM implementation.

(See Management for specific discussion on amendments to the Program.)

243

* Appendix F.
Comments and Responses to the
Massachusetts Draft Environmental
Impact Statement

244

APPENDIX F

RESPONSES TO COMMENTS RAISED ON THE MCZNP AND DEIS.

* ~~~This appendix is comprised of issues raised and responses to all
written testimony presented during the review period for the draft
Environmental Impact Statement. Generally, the response to the
comments is provided in one or a combination of forms:

1. expansion, clarification, or revision of the MCZMP or
EIS,

2. comments by MCZM,or OCZM in response to issues of concern
raised by reviewers.

The State and Federal responses to these comments have been coor-
dinated between the MUZM Office and OCZM.

No attempt has been made to distinguish between comments made on
the DEIS and those made on the Management Program, due to the combined
format of the document and the interrelated nature of most comments
received.

The first eleven questions were posed with such frecuencv that thev h'qvie
been considered general issues of the Massachusetts Program. They
are answered in detail in order to help explain the program. All other
questions and concerns are specifically answered, often with reference
to the ten general questions for additional information.

Many of the comments stimulated changes in the program and format
of this document. As explained in the note to reader at the beginning of
the document, the M-arch 1977 draft MCZNP Volume I has been replaced by
this final Environmental Impact Statement. The FEIS is shorter and more
concise than Volume I, incorporating only the essential elements of program
implementation. Thus, questions and concerns raised about Volume I may not
be reflected in this document; for example, a concern to have more explora-
tion of energy needs, in the March draft Volume I text could not be
addressed in this document since the technical text is not included. How-
ever, where it is indicated in the response that change will be made to the
March draft, a master copy will be changed and kept in the CZM office as
part of the official administrative record of the plan development.

Wthere changes have been requested and approved in the March 1977
Draft Coastal Atlas (Vol. II.), they will be incorporated in a reprinting
of the Atlas.

Comments received included: Index of commentators on next page.

Federal 11
State 5
Local 51
Other 90

Total 157

245

INDEX OF COMMENTORS

FEDERAL

1. Department of Interior 31. Chatham Board of Selectman
2. Federal Energy Regulatory Commission 32. Bourne Board of Selectman
3. Environmental Protection Agency 33. Harwich Board of Selectman
4. Department of Agriculture 34. Martha's Vineyard Commission
5. Department of Defense, Navy 36. Brewster Conservation Commission
6. U. S. Coast Guard 36. Tisbury Planning Board
7. Department of Defense, Army 37. Truro Board of Selectman
8. National Marine Fisheries 38. Orleans Board of Selectman
9. Department of Energy 39. Provincetown Board of Selectman
10. Department of Defense 40. Chatham Conservation Commission
(Office of Assistant Secretary) 41. Mashpee Board of Selectman
lOa Department of Housing & Urban 42. Barnstable County Shellfish
Development Ad. Comm.
STA~TE 43. Edgartown Board of Selectman
44. Westport Board of Selectman
lob Letter from Senator Kennedy et al 45. Wareham Board of Selectman
MassHistorical Commission 46. Wareham Marine Resources Ccmm.
11 Massachusetts ~~~47. Quincy Conservation Commission
ila Executive Office of Environmental 47. Quincy Conservation Commission
Affairs ~~~~~~48. Newbury Conservation Commission
Affairs
12. Massachusetts Division of Water 49. City of Boston
Resources 50. Scituate Board of Selectman
13. Massachusetts Executive Office of 51. Scituate Conservation Commission
Transportation & Construction 52. Wareham Shellfish Constable
53. Nahant Growth Policy Committee
LOCAL 54. Gloucester Development Commission
55. Salisbury Conservation Comm.
56. Manchester Conservation Comm.
14. EssexBoard of electman57. Revere Conservation Commission
15. Marshfield Planning Board 5.Fall River Conservation Comm..
16. Wareham Board of Health 59. Dennis Conservation Commi
17. Town of Mattapoisett 6.DxuyPann or
17. Town of Mattapo i s e t t59. Dennis Conservation Commission
18. Southeastern Regional Planning 60. Hing Board
' cnmcDeeomn 61. Hingham Board of Selectman
& Economic Devel opment
19. Mayor of Salem, Jean Levesque 61a Hingham Planning Board
20. Gloucester City Council 62. Hingham Conservation Commission
21. Ipswich Board of Selectman 63. Hingham Harbour Dev. Commission
22. Boston Redevelopment Authority 64 Hingham Bare Cove Park Committee
23. Provincetown Board of Selectman 65. Scituate CZM Commission
24. Barnstable Conservation Commission OTHER PARTIES
25. Old Colony Planning Council
26. Metropolitan Area Planning Council
27. Freetown Selectman's Representative 67. Massac es Def eum Council
67. Natural Resources Defense Council
28. Mass. Shellfish Constable Officers 68. Boston Chamber of Commerce et al
Ass. 69. New England Regional Commission
29. Wareham Office of Economic 70. Gilbert Tower
Development 71. Jeanne Gormley
30. Wareham Planning Board 72. Edward Sanchez
246

73. Charles Soares 120. Boston Harbor Associates
74. Petition from 43 Residents 121. Boston Broadcasters
of Somerset, Swansea and 122. East Boston Chamber of Commerce
Fall River 123. Boston Harbor Citzen Ad.
75. Greg Robinson Committee
76. Thomas Lynch 124. Sierra Club
77. Rep. David Lane 125. EUA Corporation
78. Rep.Peter McDowell 126. Beverly Shoreline Rights Assoc.
79. Senator John Alymer 127. Sangus Action Volumteers for
80. Brenda Boleyn the Environment
81. William O'Connell, Quincy 128. New England Power Service Company
Historical Society 129. League of Women Voters of
82. Ralph Goodno Greater Newburyport
83. Grace Saphir 130. Essex County Greenbelt Assoc.
84. Lt. governor Thomas O'Neill 131. Ispswich River Watershed Assoc.
85. Jean Foley 132. Cape Code Contractors &
86. William McCarty Builders Assoc.
87. George Lane 133. South Shore Chamber of Commerce
88. Dr. Thomas Leschine 134. Mass. Roadside Council Vision
89. Dr. Judith Spiller 135. Boston Society of Landscape
90. Dr. Arnold Lum Architects
91. A. Dix Leeson 136. Mrs. Harvey Fairbank
92. Susan Nystedt 137. Marguerite Morris
93. Fred Bauer 138. Mass. Federation of Planning
94. Rep. James Smith Boards
95. Helen Sayers 139. Marquis Graham
96. Dr. Christopher Martin 140. Thomas Walsh
97. Kenneth Robinson 141. Elliot Krefetz
98. Mary Hood Hagler 142. William Webber
99. Nancy and George Jackson 143. Greater Lawrence Chamber of
100. Richard Preston Commerce
101. Montaup Electric Company 144. Mobil Oil Corporation
102. Howard Whiteside 145. Residents of the Great Neck
103. Landowners Ass. of Indian Neck Neighborhood
104. U.S.S. Mass Memorial Commission 146. Richard Loring
105. League of Women Voters of 147. Mass. Shellfish Officers
Buzzard Bay Association
106. Lower Cape Cod League of Women's 148. Stephan and Barbara Brune
Voters 149. Appalachian Mountain Club
107. Association for the Preservation 150. Joanne Willis et al
of Cape Cod 151. Association for the Preserva-
108. The Nickeroon Companies tion of Cape Code
109. Associated Contractors of Mass. 152. New England Power
110. League of Women Voters of Mass. 153. George and Nancy Jackson
111. Mass. Forest & Parks Association 154. David Harrison
112. Boston Shipping Association 155. Crocker Snow
113. Mass. Association of Conservation 156. Colonial Coastal Corporation
Commissions
114. Boston Edison Company
115. Plymouth Rod and Gun Club
116. Mass. Audubon Society
117. Mass. Port Authority
118. MIT Sea Grant
119. Mass. Beach Buggy Ass6ciation 247

1. Explain the existing authority that allows the Secretary of Environmental
. ~Affairs to implement the CZM program without additional legislation. Should
there be legislation establishing an Office of Coastal Zone Management?

Since many reviewers of the DEIS and Massachusetts program questioned
the authority of the Secretary of Environment Affairs under General Laws
c. 21-A to adopt and implement a CZM program, a formal Attorney General's
opinion was requested on this issue. The Massachusetts Attorney General's
memorandum issued on January 20, 1978 concluded that:

-- the policies of the CZM program can be implemented by the
authorities and programsof the individual agencies specifically
identified under each policy;

-- the Secretary of Environmental Affairs, by virtue of the authority
vested in Section 2 of Chapter 21A of the General Laws to develop
policies, is enabled to prepare a CZM program.

-- the Secretary of Environmental Affairs is empowered to promulgate
regulations and, as the memoranda of understanding from the
Commissioners of EOEA Departments request to jointly implement
with the Secretary the CZM program under General Laws c. 21A, s. 4.

-- the Secretary is enabled by General Laws Chapter 21A to carry out
the functions assigned to the Office of the Secretary by the CZM
program, namely performance evaluation, conflict resolution,
fiscal controls, and the designation of areas of critical envir-
onmental concern; and

-- the Office of Coastal Zone Management is lawful in that the
Secretary is empowered to appoint experts (General Laws c. 21A,
s. 6) and in that the duties assigned the office are extensions of
the Secretary's own authority (including that of acting on behalf
of the Commonwealth in connection with federal grant programs)
and duties assigned to the Office of the Secretary by the
Massachusetts Environmental Policy Act and federal law.

The findings reached in the Attorney General's memorandum opinion indicate
that the Secretary has the authority to adopt the program; that the
agencies of the Executive Office of Environmental Affairs are empowered to
implement the program; and the legislation to establish an Office of Coastal
Zone Management is unnecessary.

Many commentators raised the question of the enforceability of the memoranda
of understanding (MOU), between the Secretary and EOEA Commissioners.

It is the regulations rather than these memoranda themselves that operate to
make the program legally binding upon the five departments. However, by
recognizing the program as a statement of state environmental policy and
requesting the Secretary to jointly implement the program they ensure that
the Secretary is not exceeding her authority under section 21 A. Further-
more, the memoranda spell out further steps, particularly the adoption of
incorporations of rules and regulations promulgated by the Secretary, which
they will take to implement the program.

248

2. Why will the agencies of Environmental Affairs promulgate new or revised
regulations after, rather than prior to, CZM program approval?

The CZM policies can be implemented by the agencies identified by the i
GZM program (see reply to general question #1) these policies have been
adopted by regulation of the Secretary and are binding upon such agencies.
The promulgation of further agency regulations is unnecessary prior to
program approval to ensure enforceability. The policies upon which the CZM
program relies for implementation are sufficiently specific to ensure
predictable administration of the program until the individual agencies
promulgate new or revised regulations. A time table for regulation
promulgation is in section 6.6.

Delaying program approval until subsidiary regulations for the Wetlands
Protection Act, Tidelands Licensing , Ocean Sanctuaries and other programs
are promulgated could put at risk the broad support the program has already
received due in part to expectations that it would be iinnlemented Pxnedit-fniiql~v.
The uncertainty that would surround'program approval could also place in
jeopardy the reforms being made to streamline the state permitting process.
Delay on program approval would deny to Massachusetts the ability to
exercise federal consistency over oil and gas exploration and development
activities on Georges Bank, scheduled to begin in January, 1978. These
federal actions may have far-reaching impacts on the Massachusetts Coastal
Zone and, unless the program can exercise federal consistency, Massachusetts
cannot be assured that potentially adverse impacts to recreational beaches,
and shellfish and finfish resources are avoided and port facility develop-
ment channeled to designated port areas. Public hearings will be required
prior to adoption of the regulations.

A schedule for the promulgation of these subsidiary regulations has
been set and drafts of regulations are being prepared. Most agency
regulations will be promulgated within 6 months of program approval.

The Secretary of Environmental Affairs has adopted and put into effect
the Massachusetts coastal program by promulgation of the 21A regulations.
An ad hoc committee comprising representatives of the state Legislature and
spokesmen from utilities, industries, cnrto's associations, and
environmental groups reviewed these regulations. Similar input will be
sought to be in the review of other regulations.

249

3. What is the Relationship Between the Energy Facilities Siting Council
and EOEA?

The EFSC is required to find that plans for the construction or
expansion of energy facilities are consistent with the environmental
protection, resource use and development policies of the Commonwealth prior
to approving any long range forecast for electric or gas facilities or a
notice of intent for an oil facility.

In accordance with section 62.9(3) of the EFSC's regulations, the
policies of the program constitute such environmental protection and
resource use and development policies of the Commonwealth by virtue of
their incorporation into the 21A regulations duly promulgated by EOEA.
Consequently, the EFSC must act consistently with all policies of the
program in approving long range corecasts and notices of interest.
See Attorney General's memorandum in Appendix.

The role of the Memorandum of Understanding between EOEA and the EFSC
has been misunderstood. This MOU itself is not intended to provide the
mechanism for requiring conformance by the EFSC to the program. As
explained above, the duty is established by statute and Council regulations.
The MOU primarily ensures that the EFSC recognizes the program as a state-
ment of policies with which it must be consistent and forecloses any
question that the Secretary of EOEA acted independently of the EFSC in
establishing such policies.

250

4. How was the coastal zone boundary chosen, and why is all of Cape Cod
included in the boundary?

Subsection 304(1) of the Coastal Zone Management Act states that
"the term coastal zone means the coastal waters (including the lands therein
and thereunder), and the adjacent shorelands (including the waters therein
and thereunder), strongly influenced by each other.... The zone extends
inland from the shoreline only to the extent necessary to control shorelands.
the uses of which have a direct and significant impact on coastal waters."
Program approval regulations, CFR 923.31, specify the extent to which shore-
lands must be included. The zone must include:

1) areas, the management of which is necessary now or is likely to
be necessary in the near future to control uses identified pursuant
to CFR 923.11 (i.e., uses subject to management because of direct
and significant impacts);

2) special management areas identified pursuant to CFR 923.21 (i.e.,
geographic areas of particular concern);

3) transitional and intertidal areas;

4) salt marshes and wetlands;

4) islands - interior portions may be excluded if uses of those
lands do not cause direct and significant impact on coastal
waters; and

6) beaches.

The state's prerogative is to manage other inland areas, including
entire watersheds if there are some uses of the watershed which would have
direct and significant impact on coastal waters.

In delineating the coastal zone, the Massachusetts CZM program first
mapped Geographic Areas of Particular Concern (GIPC's) to ensure that they
were included, at a minimum, within the coastal zone. Since floodplains
were determined to be GAPC's, the minimumboundary had to include all areas
subject to tidal flooding. In most coastal areas, this included land areas
up to a 10 foot elevation above sea level.

With the floodplain established as a minimum zone, other possible
boundaries were delineated, encompassing lands whose uses might have direct
and significant impacts. These boundaries included coastal watersheds, the
50 foot elevation above sea level, the coastal "viewshed", coastal ecologi-
cal systems, town jurisdictions, major coastal roads, and coastal census
tracts. Each boundary's advantages and disadvantages were discussed in a
staff report and presented to Citizen Advisory Committee during the planning
process.

Boundaries inland of the floodplain were discussed in the context of
whether activities within them could affect coastal waters. Effects from
these activities ranged from effluent pollution from inland activities to
long range effects of inland population growth that would place future
demands on coastal recreation facilities. A final boundary was approved

251

combining an easily identified feature (coastal road or prominent right
of way) with the inland extent of shoreland critical for the management of
the effects of coastal activities. Thus, the coastal road encompasses all
intertidal areas and some -undeveloped areas where future uses could impact
coastal waters.

Cape Cod, Martha's Vineyard, and Nantucket were perceived as single
ecological units, surrounded by coastal waters. Although it is not certain
that all the above mentioned activities, if located in the Cape and Islands'
interiors, would directly and significantly affect coastal waters, there are
many likely cause-effect relationships.

5. how will CZM implementation lead to a streamlining of DEQE permitting pro-
cedures: Will DEQE eventually create a "one-stop" permit?

The CZM plan will not produce a one-stop permit, but will streamline
permitting. Agencies within the Executive Office of Environmental Affairs
will be coordinated to grant, deny or condition permits for projects in
accordance with adopted CZM policies. Furthermore, the procedure for admin-
istering applicable permits will be coordinated by one office in each of two
regions and monitored by a computer program that tracks the status of permit

applications.
Currently, many coastal projects may need up to 20 permits or approvals
before they can be initiated; at least half of the permits are administered
by local governments. As stated in the response to general question 10, CZM
does not interfere with those local permits and thus cannot streamline the
local process. 'However, after local permits are obtained, projects may still
require sanction from state and federal authorities. Typically, a tidelands
license in state tidelands, water quality certificate, review of wetlands
conditions, and general environmental review will be required. Presently,
the applicant must submit at different times various pieces of information
to each responsible agency. The reviews may overlap, may be carried out
independently or may be sequenced in an illogical order, since procedural
regulations governing such reviews do not currently provide for their coor-
dination. Time delays and inconsistency are often the result. The CZM plan
initiates several steps to remedy these current problems.

First, regulations are being written or revised for each responsible
EOEA agency, in order to coordinate all agencies' reviews and make all
determinations consistent with CZM policy. For example, Division of Water-
ways regulations will require the Commonwealth to process simultaneously
the issuance of water quality certificates by the Division of Water Pollu-

tion Control, once regulations are promulgated.

252

Second, the practical application of coordinated permitting (see
section 6.7) will occur in two regional offices, one each in the northern
and southern areas of the coastal zone. Single forms, called Applications
for Environmental Authorization, will be submitted to an appropriate
regional office. The regional engineer and staff will determine the permits
that are required for the project and additional project information
necessary to complete the reviews. After receipt of the additional informa-
tion, the regional engineer and staff will submit the application for
environmental authorization to appropriate divisions for permit determina-
tions; the regional engineer will monitor the review through the computer
tracking program to ensure timely deliberations. After all permit determina-
tions are made, the regional engineer shall appropriately grant/deny the
environmental authorization to the applicant. Institutionalizing this
permit review procedure with additional funding support will result in
coordinated reviews, with reduced time frames, and centralized regional
coordinating offices.

Federal review will also be coordinated with state procedures where
possible. Where permits are similar at both the state and federal level;
e.g., a tidelands license and an U.S. Army Corps permit, concomitant review
periods may be established after consultation with federal agencies.

In addition, determinations of federal consistency will be automatic for
federal licenses and permits where all applicable state permits have been
granted. Similary, no federal project will be allowed to be finalized
unless it is consistent with the CZM plan, thus eliminating inconsistency
of decisions and long periods of ambiguous review and debate. (See
chapter 9 for specific procedure).

As a final step in streamlining, the Secretary of Environmental Affairs
has been granted the authority to resolve conflicts within her departments
and divisions (Chapter 21A). Previously, agencies could make different
decisions regarding projects, resulting in conflict, often for unrestrained
lengths of time. Final regulations have been promulgated and are inserted
in the Appendix. These regulations specify how and in what time frames
such conflicts will be resolved, thereby reducing delay of final decisions.

253

6. Can the original 8OQ page CZM plan be reduced in size and simplified, with
policies divided into regulatory and nonregulatory categories?

0 ~~~The concern that the March 77 draft program Document (Volume I) is
overly long, complex, and redundant has been frequently voiced throughout
the DEIS review period. Development interests in particular, expressed
concern over the inability to determine which policies involved regulatory
functions, which policies related to state and federal funding, which
policies related to incentives and advisory actions to be undertaken by the
state, and which policies required consistency of federal actions. Moreover,
since the program is essentially based on existing state statutory
authorities, many readers were perplexed by the document?'s physical size;
it seemed to indicate that another layer of bureaucracy was being created.

In order to make the plan more easily understood, the document has
been substantially condensed and simplified. Part II now incorporates all
of the essential elements of the program, and has been prepared by the
Commonwealth to replace Volume I as the program document to be used during
implementation. (Volumes I and II will be referred to as the March 1977
Draft Program Submission and Coastal Atlas, and will be part of the
administrative record of the development of the plan.) The number of
policies has been reduced from 38 to 27 by combining those policies
designed to achieve similar objectives. The substance of the policies has
been retained, except as refined in response to comments received during the
DEIS review period.

Policies have been grouped into two categories: Regulatory and
Nonregulatory, to distinguish between the policies which involve permitting,
0 ~~licensing, and special designation actions by the state, and those which
involve funding, technical assistance, and other advisory functions under-
taken by the state. Policies for which federal consistency is required are
aster isked.

Implementation sections under each policy have been revised to clarify
exactly how CZM funding and the applicable authorities are to be used to
carry out the policies. A new table has been added to Chapter 6 to cross-
ref erence policies and applicable authorities, while the other table in this
section outlines which new regulations are to be developed or old regulations
revised.

S ~~~~~~~~~~~~254

7. Does the DEIS adequately evaluate the socio-economic impacts of program
implementation, with special attention paid to the potential impact on the
local tax base? I

It is not possible to discuss in an EIS the literally limitless deci-
sions affecting environmental, social and economic variables that are made
during the three year process of developing a state coastal zone management
program. The program itself generally provides a broad rationale for the
more important decisions which are reached.

The principal concern of the commentators is a more detailed discussion
of such potential socio-economic factors as the gain or loss of jobs,
shifts of economic benefits to individuals or corporations, or the increase
or loss of tax revenues to local governments which might result from the
implementation of the program. OCZM feels that the discussion in the
summary of Social and Economic Impacts in Chapter 10 while general and
intentionally concise, fully satisfy any requirements that NEPA may impose
as to discussion of socio-economic impacts. The impacts of a program on
specific sites cannot be d'iscussed because of the range of possible
decisions under implementation. Thus, this EIS can not be as specific as an
EIS on a particular project.

Furthermore, the purpose of NEPA is to insure that the broad range of
environmental factors are adequately analyzed prior to federal actions which
will significantly affect them; courts have consistently held that socio-eco-
nomic impacts alone are not protected by the National Environmental Protec-
tion Act. Rather they are significant only in conjunction with related
environmental impacts. Thus, the fact that a particular application of
the Wetlands Restriction program might result in shrinking the tax base of
town X or an economic loss for company Y is by itself not required to be
discussed under NEPA.

255

8. What is the procedure for amendling and improving the CZM program in the
future?

Changes to the M4assachusetts Coastal Zone Management program are
expected during the next years as a normal process of plan evaluation.
As many citizens, agencies and levels of government had input during plan
development, many will continue to evaluate and recommend modifications
during plan implementation. Recommendations for changes to the plan can
come from individual citizens, citizen advisory councils, the statewide
coastal resources advisory board, state agencies, the Legislature or the
Governor. All proposed changes will be evaluated on a continuous basis
by the Massachusetts CZM office and, once approved, forwarded to the
federal office of CZM. If approved by the federal of fice, the change will
be incorporated into the program.

The specific procedure for incorporating changes varies with the
magnitude and impacts of the change. If the proposed change to the program
does not significantly alter the environmental impacts or intergovernmental
relations identified in this document, it will be considered a refinement
(See proposed CZMA regulations, Section 923.93). This will be determined
initially by the MCUM office (the state lead agency) in coordination with
the federal OCZM. A refinement can be implemented by a letter requesting
the change from MCZM to OCZM, and a return letter granting approval.

Where the MCZM office, initially, or the federal OCZM determines that
the proposed change will constitute changes in the environmental impacts or
intergovernmental relations described in this document, the change will be
considered a formal amendment and will require a different procedure for
implementation (proposed CZMA regulations, section 923.92). Examples of
changes constituting amendments include elimination/addition of policies,
or incorporation of new laws into the program.

The process to amend the program will be initiated by a formal sub-
mission to the Assistant Administrator for CZM. Prior to the submission,
the state will provide public notice and hold at least one public hearing
to determine the nature of public comments. Notice will be accomplished by
publication in the Environmental Monitor. The final submission to OCZM
will include: a written request from the Governor; description and justifi-
cation for the change; evidence of public notice and hearing; and discussion
of environmental impacts. Based on the discussion of impacts, the
Massachusetts MEPA office and/or the Assistant Administrator may also
require an environmental impact report or environmental impact statement,
respectively. After receipt of the formal submission the Assistant Adminis-
trator shall determine whether the amendment is to be granted or denied.

As an example of this process, new regulations for the Waterways
Program will be law in the State of Massachusetts 30 days after release of
the regulations and public hearings. However, they will not be part of the
CZM program, nor will federal consistency apply until the regulations are
submitted and approved by the Associate Administrator as either a refinement
or an amendment to the program. All federal agencies will have an opportu-
nity to comment on new or revised state regulations during the state
adoption process.

256

9. How has CZM insured full public participation in program development? What
role will citizens and officials play during CZM implementation? And, will
CZM's regional Citizen Advisory Councils (CAC's) have more than an advisory
role?

The Massachusetts Coastal Zone Management program made a concerted
effort to involve officials and citizens with varied backgrounds and needs
in the development of the CZM plan. The Governor appointed a Task Force on
Coastal Resources to serve as the "Board of Directors" to the CZM program.
Membership on the Task Force included representatives of the Legislature,
state and local government, commerce and industry, port and harbor develop-
ment interests,utilities, environmental and recreation interests, and
citizen groups like the League of Women Voters. The Task Force guided staff
planning efforts, and helped in the development of CZM policies and the man-
agement system.

Throughout the development of the CZM plan, over 1000 public meetings
were held in coastal communities to explain CZM plan development and hear
about local problems and concerns.

Regional Citizen Advisory Committees (CAC's) were formed to guarantee
local involvement and to prepare the regional volume of the CZM plan. The
CAC's generally included an appointee of the mayor or board of selectmen,
as well as the major interest groups in the region. The CAC's critiqued
the CZM Program Preview and each chapter of the subsequent CZM plan. The
Committee members worked with planning boards, conservation commissions and
boards of selectmen to evaluate coastal resource information, to identify
local opportunity and problem areas, and to prepare the regional section on
the plan.

CZM conducted a statistically valid public opinion survey of about a
thousand coastal residents. The survey respondents represented another
source of information on the needs and desires of coastal residents.
Finally, DEIS hearings indicated major public support for the CZM Program and
the role that citizens played in its development.

Public information and education activities supported the public
participation process. All CZM meetings were well publicized through news-
letters, direct mail and the print and broadcast press. CZM meetings were
open to all.

The CZM program represents significant investments of time, interest
and expertiseon the part of many Massachusetts citizens and officials.
Citizens and officials will play an important advisory role during CZM imple-
mentation. Ten regional Citizen Advisory Councils and a Statewide Coastal
Resources Advisory Board to the Secretary of Environmental Affairs will be
formed to facilitate public participation. These Councils will take the
place of those formed during the program development phase. Citizen
Advisory Council (CAC's) membership will include a formal representative of
each city or town in the region, as well as representatives of the major
users-interests in the region. Each CAC will perform an annual review of
the respective regional chapter, and up-date where necessary. The
regional Councils will help to insure overall quality control in the CZM
program and will serve as local ombudsmen within the region alerting the

257

regional environmental engineer and state CZN office of problems and issues
in the region. The CAC's will ad-vise in the setting of priorities for the
allocation of financial assistance. The CAC's will serve as a forum for
discussion and a central point for the collection of information and ideas
should problems or conflicts occur between communities. Finally, the
regional Councils will monitor the coordination of activities by local,
state and federal government programs in the coastal zone.

The Statewide Coastal Resources Advisory Board will assist the
Secretary of Environmental Affairs and the CZM Director during program
implementation. The Board will represent a statewide constituency, and will
include representatives of the Legislature, state and local government,
utilities, commerce and industry, civic organizations, recreation groups and
environmental interests. One representative from each CAC will sit on the
Statewide Board, and will help to provide consistency between state and
regional activities.

The Board will advise on CZM planning, technical assistance, and annual
grant applications and appropriations. The Board will work with the CZM4
Director on a periodic review of environmental regulatory and management
functions to insure adequacy and consistency in the application of CZD4
policies. The Board will help establish a long term education program, will
advise the Secretary on amendments to the CZM program, and will review the
program on an annual basis.

Both groups are advisory in nature. State laws dictate that the
Commissioners of individual agencies or the Secretary of Environmental Affairs
have the final authority and take the final responsibility for state actions.
Citizens can assist in the decision making process, but the authority must
rest with the legislatively mandated unit of government.

258

10. Since CZM4 implementation is based solely on existing laws, what effect will
CZM have on traditional home rule authorities and local government?

The Massachusetts CZM program has a very limited affect on the division
of responsibilities and powers between local and state government and adds
absolutely no state responsibilities not previously authorized by the
Massachusetts Constitution and laws enacted by the General Court. Communi-
ties will-remain free to zone or acquire lands and review subdivisions as
at present,,but within 300 feet of desigrated historic and recreation sites,
state permits will be reviewed for effects on historic and recreation
qualities. Local government's powers to enact and administer by-laws and
ordinances, to plan for community services and public improvements, and to
raise and expand tax revenue as seen fit continue to be subject only to the
programs currently in effect. Local government will also continue to
administer such state regulatory programs as the Wetlands Protection Act and
the State Environmental Code, subject to appeal and enforcement by the
Department of Environmental Quality Engineering. Also, local government
under the CZM program will be guaranteed a voice in management program
decisions as discussed in general question 9.

Zoning and other local government regulation, however, has never been
the sole determinant of how land or waters are to be used. As in the past,
state and federal requirements will also have to be met. The Massachusetts
CZM program organizes these state and federal requirements for improved
administration. The particular land and water use powers which the state
Legislature has reserved to the state and which are included in the CZM
program include: (1) the authority by the Energy Facilities Siting Council
to approve major energy facilities and to override, on appeal, local zoning
for the placement of energy facilities; (2) the authority vested in the
Department of Environmental Quality Engineering to require modification or
cessation of the emission of pollutants into the atmosphere or water bodies
and to require the construction of sewerage treatment facilities; (3) the
authority to take land by eminent domain for recreation and conservation
purposes; (4) the authority by the Department of Environmental Management
to restrict wetlands and scenic rivers; (5) the authority to allocate state
funds for sewers and transportation, waterways, public parks, and other
public improvements; (6) the authority to protect and license the use of or
lease tidelands and ocean resources held in the public trust; (7) the
authority to review and take into consideration the environmental impact of
state projects; and (8) the authority to appeal and enforce the Wetlands
Protection Act and the State Environmental Code.

Local government projects, such as school, library, and firehouse
construction, the establishment of municipal parks, or the construction of
municipal roadways will only be reviewed for conformance to the CZM program
if:

(1) the project requires a state license or permit under, for example,
the Wetlands Protection Act, the Waterways Program (G.L. c. 91),
the State Environmental Code, compliance with air and water
quality standards, or approval by the Energy Facilities Siting
Council; or

259

(2) the project is to receive state or federal funding and the
project is in an area, or of a type, to which a CZM policy
applies.

For example, in the case of a local firehouse to be constructed with federal
Economic Development Administration funds within the coastal zone, but in an
upland area away from a port area, the 100-year floodplain, and an historic
district or recreation site, the only policies that would apply are Policy
12 and Policy 13.

Given limited state and federal funding, can CZM monies provide all the help
that is necessary to solve problems at the local level?

MCZM was proposed that a third of the annual federal CZM grant be passed
on to coastal cities and towns and conservation commisssions for site studies,
implementation of the Wetlands Act, and other action projects on the local
level. Half of the CZM staff will comprise a technical team of scientists,
lawyers and planners on call to coastal communities to help solve local
problems. The technical team members will also serve as staff to help the
Citizen Advisory Councils. The combination of technical assistance and
financial assistance should help communities to improve local coastal
management and coastal resource related decision making over time. However,
CZM funds alone are not adequate to meet all of the needs of coastal
communities.

260

Cormment Response
1. Department of Interior (Office of the Secretary)
1. "We find the MCZMP to be potentially an No response necessary
excellent program. For the most part, the
policies and procedures are adequately
described and comprehensive."

2. Lack of enforeceability of the EOEA agencies' See general question I and
Memoranda of Understanding (NOU's) with the Attorney General's memorandum opinion
Secretary of EOEA. in the Appendix.

3. The second of the Department's major concerns The Chapter 21A regulations will be
is that the Program is proposed to be promulgated before program approval.
approved before promulgating Chapter 21A Also see general question 1.
regulations.

4. The program should include revised and new See general question 2.
regulations for EOEA agencies to implement
the CZM Program.

5. There Is no discussion of enforcement Each statute has specific penalties
mechanisms and penalties for the Waterways associated with the statute, however,
Program, Wetlands Protection and Restriction it is not necessary to detail these
Programs and the Ocean Sanctuaries Program. statutes in the FE IS.

6. We view the functions of DEQE as both a DEQE does fund various coastal
regulatory and construction agency as a projects (e.g., jetties); however,
potential serious conflict of interest. limitations on these projects are
provided by existing statutes.
Funding projects are bound by Water-
way regulations and must meet this
criteria.

7. DEQE lacks adequate biological expertise. Part of CZM funding will go to
increase the staff of DEQE. Biolo-
gists are now involved in the permit
process.
8. The exemption of the Metropolitan District Added in Policy I and Section 6.6
Commission (NDC) from the provisions of the
Wetlands Restriction Act is not explained
in the MCZMP.

9. A simplified flow-chart displaying the permit A flowchart has been incorporated
process and responsible agencies should be for the three major permits in
included for the three major permits. Section 6.7.

10. The overall Program is weak in addressing See Appendix E which adequately
State and Federal coordination during and addresses the coordination that has
after implementation. and will occur.

11. Fish and wildlife service should be The State will extend an invitation
represented on Dredge Spoil Task Force. for the Fish and Wildlife to be
represented.

12. Department wants a mechanism whereby Federal Federal agencies will have a chance
agencies can be involved in the yearly to participate in yearly public
evaluation of the program. hearings on the evaluation under
Section 312 of the CZMA.

13. Document fails to address how conflicts will There is no recourse for the State
be resolved if local governments prefer not if local governments don't seek
to accept State technical assistance but technical assistance. Local govern-
prefer to keep their zoning ordinances as ments have the option of refusing
they are. local technical assistance. The
State already has control over
issues of Statewide concerns e.g.,

Wetlands.

261

1. Department of Interior (cont.)
14. Conflict resolution section needs Conflicts within EOEA agencies are
to be further clarified. described in Section 6.2. Resolution
of conflicts with other agencies are
described in Section 6.3. See 21A
regulations for further clarification
in Appendix A.

15. A substantive example where the MCZMP See Policy 26 for changes.
is seriously deficient in omitting
discussion of interagency conflict
resolution procedures is in the areas of
transportation projects with program
policies. How will CZM ensure compliance
with program policies.

16. Inconsistency in DEIS between page 11-29 The word "numerous" has been deleted.
and VI-1. DEIS states on 11-29 that the See Chapter 14.
transportation network is virtually
complete, but on V-1 negative impacts are
described as being numerous.

17. Concerned about the lack of specific State See Chapter 9 for changes.
procedures to implement Federal Consistency.

18. We find the commentary in the introductory No response necessary.
sections of the Federal Consistency
procedures especially candid and realistic.

19. Agency responsible for review of consistency The CZM office within EOEA will act
certifications should be identified. This as the agency responsible. See
could be done by a flowchart. Chapter 9.

20. Section 7.31 and 7.32 of 21A regs. should These sections have been changed in
be changed. the revised 21A regulations.

21. Mention of OCS lease sales being subject Mass. CZM reserves the right to
to consistency should be deleted from review proposed OCS lease sales at
the FEIS. such time as the question of
applicability of consistency is
confirmed.

22, Section 7.34 (A) of 21A regs. should This has been changed in the 21A
conform to NOAA regulations. regulations.

23. Section 7.34 (D) should also be changed. This has been changed in the 21A
regulations.

24. Section 7.35 (A) should be changed to This has been changed in the 21A
reflect NOAA regulations. regulations.

25. The program fails to address Fish and These omissions have been added to
Wildlife service refuges within the State's to a Master Coastal Atlas located
proposed coastal zone boundary. in the Massachusetts CZM Office.
This will be updated yearly.

26. The Department questions the use of the The CZMA regulations use the term
term "balancing" throughout the Program "balancing".
document and the DEIS in regard to national
interest particularly relating to resources,
energy and transportation needs (pp. 11.55,
& 11.61). "3alancing should be replaced with
term "consider and reconcile".

27. MCZMP makes a commendable attempt to No response necessary.
recognize Federal agency interests.

28. What is local governments' involvement in Local governments will not be
Federal Consistency determinations. involved in federal consistency
determinations. Only the State will
issue consistency certificates.

1. Department of Interior (cont.)
29. How will national and regional benefits The national and regional benefit
be considered in light of local issues are protected at the State
authorities. level. There is no local government
involvement.

30. The Department is concerned that beds of All of these areas are covered by
submerged aquatic vegatation, nonvegetated State statutes which are part of
tidal flats, finfish spawning areas, fresh- the program. The term ".SR'has been
water areas are not-included in the list of deleted.
significant coastal resource areas and
therefore could be outside the purview of
the proposed policies.

31. The policies provide adequate specificity No. response necessary.
to ensure predictability.

32. The Department is also concerned with the This is not necessary to meet the
exclusion of freshiater ifhland wetlands requirements of the CZMA.
from the jurisdiction of MCZMP.

33. We are concerned that the restrictive use The types of areas specifically
of the term "marine" limits resources addressed in CZM policies are defined
which should be addressed--definition in the Definitions
should be clarified to include palustrine
and estuarine resources and freshwater
lacustrine habitats. (Policy 1).

34. Policy 1 should be expanded to address Policy 2 has been revised to reflect
endangered and threatened species. this concern.

35. In the discussion of "Areas for Preserva- Preservation is the word from the CZM
tion or Restoration" we view the use of and is most appropriate. The term
preservation" as inappropriate and preservation" is used by
suggest it be replaced with "conservation". Massachusetts in the same way as the
(Policy 2) CZMA regulations.

36. Adverse impacts to terrestrial resources Such a discussion would add
in the case of upland disposal of dredged 'unnecessarily to the length of the
material should be included in Policy 5. document.

37. The potential stresses which "extensive The potential stresses of such
and intensive aquaculture" could place aquaculture projects have not been
on complex ecological systems have not adequately evaluated by the
been adequately considered and evaluated scientific community. The permitting
in the MCZMP. Policies should reflect process in Massachusetts for aqua-
controls over these activities (Policy 7). culture projects requires a case by
case review.

38. Clarify whether policies regarding flood- Such policies will not apply beyond
plain zoning and other management of the coastal zone, however, the CZ by
hazardous areas in coastal towns will definition includes all of the 100
extend to areas outside of the coastal zone year coastal floodplain.
boundary (Policy 8(d)).

39. Expand policy on adverse effects on See Policy 4 which has been reworded.
adjacent properties or downcoast areas
to include adverse effects on project sites
proper (Policy 12(b)).

40. The 4 criteria for "deepening or expansion Policies protecting ecological areas
of channels and mooring or turn-around apply for all dredging projects.
basins beyond authorized or existing The criteria for Policy 5 apply to
depths or size" are seen as seriously all dredging and disposal regardless
deficient in lack of provision for of location.
protection of ecological resources
(Policy 18). 263

1. Department of Interior (cant.)
41. The coastal zone is sufficiently narrow The 208 management program
in several locations to preclude adequate coordinated and consistent with CZM
control over stormwater runoff in urban will have adequate control over
areas, buffer areas adjacent to proposed urban stormwater runoff. The coastal
Area, for Preservation or Restoration zone does include anadromous fish
(APR s) and anadromous fish runs. runs up to the boundary of the first
coastal town. Anadromous fish runs
are covered by the Wetlands Protec-
tion Act or the Division of Marine
Fisheries Statutory authority
regardless of where they may be in
the State. The buffer area for APR's
is the 100 year flood plus 100 ft.
Such coverage is adequate.

42. Supports the inclusion of Cape Ann in The North Shore Citizens Advisory
the boundary. Committee voted to exclude this area
and MCZNP concurred that the area
would not significantly impact
coastal resources.

43. Department concerned about the narrow See general question 4.
inland boundary f or the Merrimack River.

44. Wetlands restriction regulations need to The restriction order is a covenant
be promulgated. an the deed. A model restrictive
order is provided in Policy 1.
General regulations are not
necessary.

45. Criteria for selecting APR's should be See Section 6.1.
in document.

46. Definitions for "maritime-dependent" and See Policy 7.
waterfront-related uses" should be in a
glossary.

47. "Port Areas" should be mapped. Maps have been included in Chapter 3.

48. A reference to the water treatment This will be incorporated into the
capacities of salt marshes could be administrative record.
included to strengthen the need to
protect these salt marshes (pp. 44, 6 v. 1).

49. It is not clear on what basis the Secretary See 21A regulations in Appendix F.
of the EOEA can reject a nomination for an
APR.

50. The differentiation between APR's and Areas This has been incorporated in the
of Critical Environmental Concern (ACEC) Appendix.
is not clearly developed in the Program
document-- (it is stated in the DEIS however
(p. 11.40).

51. Management for restoring areas in APR's is only a process for designation is
not addressed in the MCZMF. required by the CZMA and -not a
management program by the time of
program approval. Some management
programs will be developed in the
first year of 306 funding based on
the priorities outlined in policy 2.

52. Historic sites are limited to "designated" To add to predictability of the
and "registered" sites and districts Program only designated sites have
assuming that all significant sites have been listed. Newly designated areas
been identified-- this is especially will become part of the program.
important in regard to archeological sites.

264

1. Department of Interior (cant.)
53. Onshore mining of minerals including Most onshore mining would occur
Narragansett coal and other minerals outside the coastal Zone. Narragansett
should receive equal consideration coal is predominately outside the
(pp. 254-256, v.1). coastal zone, thus not subject to
the program.

54. We recommend that the MCZMP address the Onshore landing sites are permissible
permissibility of onshore support in noncommercial fishing areas
facilities for mineral extraction which assuming local zoning and other
are not in commercial fishing areas permits are obtained and CZM policies
(p. 155, v.2). are met. Such facilities are
encouraged in developed ports.

55. The fisherman's concern regarding removal Correction made to administrative
of "bottom material" page 155 is record.
contradicted on page 199 of vol. II.

56. The MCZMP fails to evaluate what mining This is not necessary for program
or mineral products mean to Massachusetts ' approval.
economy.

57. The MCZMF program fails to show how many This is not necessary for program
acres of sea bottom a gravel dredge might approval.
disturb annually compared to the total
coastal sea area.

58. The State Division of Mineral Resources in This has been added in Section 6.1.
the organization chart is not provided.
(p. 11.53).

59. The "national interest" discussion in the The reference to a moratorium has
DEIS fails to mention the State's morator- been added to No. 14 in Chapter 9.
ium for permits to extract sand and gravel
(p. 11.53).

* ~~~60. The "national interest" section must also Significant onshore minerals are
include onshore minerals and associated outside the coastal zone boundary.
processing, handling, and transportation
facilities.

61. None of the documents specify an inventory Land entry restrictions are few and
of those mineral resources lost to develop- do not cause significant impact.
ment because of MCZMP land entry restrictions.

62. We believe that the MCZMP is compatible and No response necessary.
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.

63. We find the subject document to be clearly No response necessary.
written and that a full disclosure has been
made of alternatives to the management
program and a description of the proposed
action.

64. We believe the DEIS portion represents the No response necessary.
best effort to date of the seven HIS's on
CZM programs which we have reviewed.

65. We find the discussion of environmental The HIS is appropriately brief
impacts inappropriately brief, it could according to CEQ guidelines. More
quantify and be more specific on likely quantification and specificity is
impacts. not as possible with a pragmatic HIS
as with a project HIS. The attach-
ment comments have been incorporated
265 ntothe adminiestraieyarecetonedo
265~th i ES nles they aremenisrtion ecodo
heeunder response 69.

1.Department of Interior (cont.)
66. The "Visual Environment" heading should This has been incorporated in
be changed to "Historic, Cultural, Section 3.3
Vsa, and Aesthetic Environment", since
historic properties are important to State
citizens f or reasons other than and in
addition to their visual attractiveness.

67. Policy (14) should be expanded as follows, See response to 1-52.
"Review developments proposed near
designated or registered historic districts
or sites or districts or sites eligible for
for such designation...,"

68. "Encourage use of resource inventories, Section 306 funds to local
local zoning,. ." communities will be used only to
implement policy aspects of the
program.

69. a) In the "Overview of What Can Occur in the See comment 1-52.
Coastal Zone," Section (c) 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."

b) Under "Remainder of the Coastal Zone", "Federal laws "have been added;
Federal laws should be added, historic sites however "sites" is not consistent
as well as districts should be included, with the policy 12 to "conduct
"conduct inventory" should be included in inventories" is allowed but is not
policy 14. needed for program approval.

c) It appears that the "easiest way out" was Site specific dump sites are not
used to choose spoil sites. The discussion required for Program approval. The
is not clear an the subject of the discussion State Dredge Spoil Task Force is
of previous and current dump sites proposed addressing this issue in the first
for use under CZM. year, after program approval as a
306 work task.

d) The list under "Remainder of the CZ" should See comment 1-30.
include nudflats and finfish spawning areas
as separate resource areas.

e)Department of Environmental Quality See comment 1-7.
Engineering: Is there any biological
expertise represented on the staff?

f) Policy (14) should include "historic site, See comment 1-52.
sites or districts eligible for designation
or registration.

g) Change item (1) to read "Federal licenses and See comment 1-21.
permits except as listed in (2) below. Add
a new (2) which reads "Federal licenses and
permits for activities described in detail
in Outer Continental Shelf exploration and
development plans.

70. Coastal Wetlands Restriction Program: The This is true; see Policy I for
restrictions do not affect mosquito control clarification. This part of the
and other State Reclamation Board projects. statute passed by the Massachusetts
Exemption should be justified. legislature.

*Note: The DOT submitted an attachment with more specific comments.
All have been incorporated with the exception of those listed
under 69.

266

1. Department of Interior (cant.)
71. Disposal Sites and Methods: Why should In-harbor sites are favored if it can
in-harbor sites be favored over open be shown that leaching will be
ocean sites? prevented and adequate structural
measures are employed to withstand
the severest storm.

72. Policy (8): If a house is destroyed in the Yes as long as regular permit
coastal zone by a flood, erosion, etc., requirements are met.
will it be permitted to be rebuilt in the
same location?

73. The first sentence in the fourth paragraph Change incorporated in Section 3.6.
of Energy introduction on this page should
be changed to reflect that "coastal areas
may be affected by oil and gas exploration
and production on the roughly one million
acres of land in the North Atlantic Outer
Continental Shelf (OCS) being considered by
the Department of the Interior for lease
sale in 1978".

74. Omit item 1 at the top of page 267. See response 1-21.

Insert the words "functionally dependent" See revised chapter 4, Policy 8.
before the word "on-shore" in line 25.

75. "Permit for approval of platform installa- Changed in Chapter 9.
tions" is one of the items included in the
immediately preceding part and therefore
should not be duplicated.

76. Omit the second line which pertains to See comment 21.
lease sales.

77. Section 7.15(g) is incomprehensible. Please See regulations in the Appendix.
clarify it.

78. Is the EFSC/CZM MOU legally binding. See general question 1.

79. The State Historic Preservation Plan should Incorporated in Appendix C.
be included in the list of State Agency Plans
with which the CZM program is to be
coordinated.

80. The Department of Interior had numerous See response 1-81.
comments about Vol. II which have been
incorporated into the Master Coastal Atlas
located in the MA CZM office.

81. Page 1: The CZ Boundary should include Not necessary for program approval.
all of the Merrimack River estuary and
related wetlands.

a) Include the scenic viewpoint in Newbury This has been included.
within the Boundary.

b) The Boundary should include buffer areas The Buffer area includes 100 ft.
for the proposed APR's indicated. from the 100 year floodplains.

c) Plate 3: Include the scenic viewpoint This has been included.
in Rowley.

d) Plate 4: Is all of the 100-year floodplain Yes. See 1-81(h)
included?

e) Plate 5: Why is a marsh within the 100-year All 100 year floodplain included
is floodplain excluded? by dffinition.

267

1. Department of Interior (cont.)
g) Plate 7 and 9: Portions of the 100-year All 100 year floodplains are
floodplain appear to be excluded. included by definition and will be
changed in a redrafted coastal Atlas.

h) There is concern that the Boundary comes All 100 year floodplains are
very close to erosion areas. Such areas included by definition.
should have a good buffer area which the
existing Boundary does not provide.

i) Plate 8: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.

j) Page 49: Note that the Metropolitan All floodplains included by
District Commission is shown as owning definition.
five islands in Boston Harbor and yet is
exempted from the Wetlands Restriction Act.

k) Plates 10 and 13. Portions of the 100-year All floodplains included by
floodplain appear to be excluded. definition.

1) Plate 15: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.

m) Plate 16: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.

n) Plate 18: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.

o) Plate 23: Portions of the 100-year flood- All floodplains included by
plain are excluded. Provide buffer for definition.
proposed APR's.

p) Plates 24 and 25: Portions of the 100-year All floodplains included by
floodplain appear to be excluded. Provide definition.
buffer for proposed APR's.

q) Plate 26: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.

r) Plate 27: Portions of the 100-year flood- All floodplains included by
plain are excluded. Provide greater buffer definition.
for areas of erosion.

s) Plates 28 and 42: Provide buffer for APR's already include sufficient
proposed APR's. buffers.

t) Plate 29: Portions of the 100-year flood- All floodplains included by
plain appear to be excluded. definition.

u) Plate 30: Portions of the 100-year flood- All floodplains included by
plain appear to be excluded. definition.

v) Plate 32: Portions of the 100-year flood- All floodplains included by
plain appear to be excluded. definition.

w) Plate 34: Provide buffer for proposed APR's. All floodplains included by
Portions of the 100-year floodplain are definition. See response 1-41
excluded. for discussion of buffer.

x) Plate 35: Portions of the 100-year flood- All floodplain included by
plain are excluded. definition.

y) Plate 38: Portions of the 100-year flood- All floodplain included by
plain are excluded. definition.

z) Plate 41: Portions of the 100-year flood- All floodplains included by
plain are excluded. definition.
268

1. Department of Interior (cont.)
82. 11-2: Significant Resource Areas should Categories of SRA's have been
include "Historic and Cultural Resources" deleted.
as a fourth category. "d. Significant
Resource Areas (History and Cultural):
These are districts, sites, buildings,
structures, and objects significant on a
local, State, or national level in American
history, architecture, archeology, or
culture."

83. 11-4: Insert the word "substantially" To insert "substantially" would
before conflict in line 27. not be State policy.

84. Item 4.b on page II-5 should note that This is a summary and need not
Federal legislation protects buildings, detail federal legislation.
structures, and objects as well as sites
and districts. We recommend that all of
these types of historic resources be
mentioned.

85. We recommend that the commentary on Policy See question 1-52.
(14) recognize all types of historic
resources, per the preceding comment, and
that it include resour-es eligible for
inclusion in the National Register as well
as those formally listed. This section
should also note that additional historic
resources may be designated in the future.

86. The percent of the coastline under Restric- Percent of coastline under restric-
tion is unclear. Clarify. tion is approximately 6% of coastal
zone, including Cape and Islands.

87. We recommend that two columns be added to Chart of principal State agencies
the charts on pages II-36-41: "Principal added. Penalties would add
State Agency" and Enforcement Penalties." unnecessarily to length of document.

88. Include the legislation recodifying the five Legislation was passed January 1978,
existing Ocean Sanctuaries laws in the FEIS. but not available for inclusion in
FEIS. Available upon request. The same
provisions from the previous acts apply.
89. No principal State agency is stated; it Lead- agency is EOEA.
should be.

90. The "framework-..for coordinating DWPC, General framework for coordination of
DAHM, DMF, CZM Review..." should be CZM activities is described in
included in the FEIS. Section 6.4.

91. 11-42-49: We are concerned that there is no This comment has been incorporated
mention of coordination with the Massachusetts in Appendix D.
State Historic Preservation Officer.

92. There is no mention of the Metropolitan This comment has been incorporated
District Commission, its responsibilities in Policy 1.
and its role in the CZM; there should be.

93. What kind of conflict resolution is available Conflict resolution has been
between one or more agencies outside of the described in Section 6.4.
Executive Office of Environmental Affairs?
For example, what if the Department of Public
Works has a disagreement with CZM?
Please clarify.

94. We recommend that "protection of historic and These would be eligible for technical
cultural resources" be included in the list assistance money.
of eligible categories for technical
assistance.
269

1. Department of Interior (cont.)
94a. On Page 11-55 change the fourth line The term "balancing" is from the
to read "has drawn the following regulations and remains in the FEIS.
conclusions." Change "Balancing to
"Considering and Reconciling" in line 35
and in line 4 on p.11-55, change "possible"
to"practicable" in line 43.

95. 11-63: Item II, Historic Sites and See Appendix D for changes.
Districts, reflects lack of necessary
coordination with the State Historic
Preservation Officer. There is no
mention of the State Historic Preservation
Plan.

96. Consideration should be given to listing This has been incorporated in
migratory waterfowl separately under Chapter 10.
salt marshes, beaches, dunes, and
barrier beaches.

97. Paragraph 6, line 6: The sentence should Unclear where comment is located
state that the spoil may destroy benthic in document.
organisms and fish eggs.

98. The summary of environmental impacts should This has been incorporated in
at the very least, mention potential impact Chapter 10.
on historic resources.

99. On Page II-4, paragraph 1, lines 3-4: This has been incorporated in
The environmental impacts may be negative Chapter 10.
as well as positive.

100. The section entitled "New Development See response 11-2 for clarification.
Impacts" should recognize the potential
for new development to affect as-yet
unidentified historic resources, including
archeological sites.

101. As stated in the DEIS, it appears that only This comment has been incorporated
three types of controls are on lands as well as other Federal laws.
suitable for development. No mention is
made of the Fish Act, and Federal Water
Pollution Control Act and Amendments.

102. The drafts of all the regulations should Draft regulations will be available
be part of the FEIS. before program approval. No
additional benefits will result
from including these in the program
and might add confusion to the FEIS.

103. On Page IV-3, paragraph 4, line 18: How Enforceability is availabe under
are the programs enforceable? present State law. See revised
chapter 6.

104. The adoption of new regulations and See response 1-103 and 1-102
procedures is significant and therefore
the draft regulations
should be in the FEIS.

2. Federal Energy Regulatory Commission
1. The staff was impressed with the quality No response necessary.
and excellent balance in the considera-
tion and evaluation given to energy and
environmental interests in the coastal
zone.

2. All references to the Federal Power These changes have been made in
Commission (FPC) should be changed to the the program and the administrative
Federal Energy Regulatory. Commission record.
(FERC) or Department of Energy (DOE).
270

2. Federal Energy Regulatory Commission (cont.)
3. Mention should be made that maximum The administrative record has
feasible length of a cryogenic pipe- been changed to reflect this
line (for a LNG facility inland) is comment.
approximately 2.5 miles due to heat
gain from friction and outside sources.
Thus technological and monetary
constraints limit siting LNG inland.

4. FERC can process applications See general question 5.
simultaneously with the State.

5. Federal Consistency section on licenses This change has been incorporated
or permits must clarify that CZM cannot in Chapter 9 and also in the
dictate when Federal permit processing, administrative record.
joint public hearings can begin
(page 351).

6. FERC as well as other agencies, should OCZM has agreed that Federal
be invited to provide comments during agencies may comment in its yearly
the annual performance review. section 312 public hearing of the
MA Program that Federal agencies
may comment.

3. Environmental Protection Agency
1. A memorandum of understanding with the Memorandum of Understanding in
State Secretary of Transportation and Appendix B.
Construction would be helpful.

2. Expand the program to include non-point Non-point sources and indirect
sources of water pollution and indirect sources are incorporated in the
or mobile sources of air pollution. Program as is noted in Policy 10.
The existing State procedures for
following these standards are
incorporated by reference. Much of
the State control over non-point
water pollution will become more
effective when the State 208 plans
are adopted. They will be reviewed
for consistency with the CZM Plan.
It is not necessary to add their
incorporation into other policies.

3. Discuss the effects of the State of At the date of final EIS preparation
Massachusetts being declared a nonattain- the State nonattainment areas have
ment area for oxidents--any new sources of not been yet declared. It appears
air pollution will have to be offset by that nonattainment regulations will
reduction elsewhere in the area. be applied relatively uniformly due
to the size and configuration of the
Mass. Coastal zone while the overall
level of industrialization might be
affected, locational decisions
would tend not to be.

4. State that the Secretary of the EOEA will The Secretary cannot use conflict
use her conflict resolution powers to resolution powers beyond what is
assure that decisions under the CZM permitted at law. Thus it is not
Program meet both the air and water her opinion to determine whether air
quality standards. and water quality standards should
be met. Standards are mandated by
Federal law.

271

3. Environmental Protection Agency (cont.)
5. Outline how the Program will CZM, DEQE and the 208 agencies have
incorporate and implement the been reviewing each other's programs
recommendations of the State and throughout their development in
areawide 208 water quality standards. order to ensure consistency between
the two programs once they are im-
plemented. In particular, the
following CZM policies reflect
objectives common to both programs:
critical area protection (policies 1
and 2), appropriate analysis of out-
falls and method of treatment (3),
subsurface disposal management (3),
design of wastewater facilities in
hazardous areas (15), 201 grant
priorities, sewer service area
delineations, and secondary growth
impacts (26), and technical assist-
ance for local growth management (27)
and will facilitate future coordina-
tion between the two programs.

6. Discuss specifically in the implementa- The specific methods for implementing
tion section how provisions of the Clean the Clean Air Act are not described
Air Act, as recently amended will be in the Program because of an attempt
built into the CZM decision-making to reduce the length.
process -"consistency" review of
transportation plans-nonattainment areas
-visibility protection-consistency of
wastewater treatment construction grants
with SIP's-Federal facilities conformance
with SIP's

7. We recommend that OCZM approve and fund the The ten ARP's proposed will be
Program only after a firm schedule for APR through the hearing stage within the
designations and adoption of Rules and first year. The CZMA only requires
Regulations. a process and not actual designation.
See also general question 2.

4. United States Department of Agriculture
Soil Conservation Services
1. The coastal zone boundary does not appear The MCZMP Program carefully
to include nationally significant agricul- reviewed and considered that no
tural or Forestry resources. Also farmland and forests within the
important farmland, cranberry bogs are not coastal zone were determined to be cf
adequately addressed. national significance. (See number 15 of
Chapter 9). Most cranberry bogs are
outside the coastal zone and while
they are important to the State,
the management of those within the
boundary is not of national
significance.

272

Comment Response
5. Department of Transportation
1. FEIS should address the effect of noise Incorporated in Chapter 10.
on coastal zone.

2. The term "port" should include airports as SRA categories have been deleted.
0 ~ ~~~significant resource areas (Economic)

3. Existing procedures for considering environ- Existing procedures do not need to
mental protection mechanisms with regard to be described for Program approval.
parklands, wetlands, and historical areas
adjacent to airports should be more clearly
outlined in the FEIS.

4. Policies in the CZM Plan and DEIS "can lead No response necessary.
to responsible development within the coastal
zone... (They) see no major conflict within
existing Federal airport plans for develop-
ment planned under the Airport Development
Aid Program."

5. The MCZMP does not make reference to the Coast Guard aids to navigation will
Coast Guard's issuance of site specific not be subject to Federal consistency
permits for private aids to navigation. requirements.

6. No mention is made if future Federal land Once Federal land is acquired it is
acquisition is exempt from the coastal exempt from program.
zone?

7. Coast Guard feels the CZM Program doesn't No response necessary.
have present or long-term requirements that
would hamper Coast Guard operations.

8. Concerned that document is not specific See revised Chapter 9.
enough on final determination of consistency.

6. Department of Defense
The Department of the Army (Corps of Engineers)
1. Coordination and review opportunities have Federal participation has been ade-
been inadequate and not in keeping with the quate to meet the CZMA requirements.
law or applicable regulations, nor as suggest-Numerous meetings were held with
ed in the Program document (p.C.6) ' Department staff and CZM personnel.
These are listed in the chart in
Appendix D.

2. We feel that it is essential for a single A single State office is not a re-
State coordinating office to respond to quirement, The State can delegate
Corps EIS's and that this process be men- this responsibility to regional of fi-
tioned in the DEIS. ces so long as they are clearly ident-
ified. This is part of the State goal
to streamline the response process on
permits.

3. The Program document and the DEIS should Program document is flexible on this
show consideration of flexible alternatives issue, see wording on revised Policy
for dredged material disposal. 5.

4. We would prefer the use of the term "dredged This has been changed in Policy 5.
material" in place of "spoil" throughout the
Program document and the DEIS.

5. We find it disturbing that the State has not Such a resolution is not necessary
resolved the controversy of an ocean dumping for program approval. It will con-
site for dredged material (p.72 v.1). tinue to be addressed after program
approval.

6. We are concerned that the documents discuss See revised Policy 5.
problems associated with dredging activities
0 ~ ~~~without presenting solutions. Much of the
dredging discussion is meaningless and inade-
quate.
273

6. Department of Defense
The Department of the Army (Corps of Engineers)
(cont.)
7. In the sentence "there are seven open water This has been deleted from the FEIS.
disposal areas approved for the dumping of
clean dredge spoil," the word "approved"
should read "recommended" (p.72,v.1).

8. The Program document mistakenly implies that Processing can occur simultaneously
the Corps is precluded from processing a but a permit can't be granted until
permit application from a non-Federal appli- a positive Federal consistency cer-
cant until the MA CZM agency affirmatively tificate has been issued by MA CZM.
issues a certification statement (p.351, See rewritten Chapter 9 to correct
v.1). this implication.

9. The Program document incorrectly states that This incorrect statement has been
Federal consistency will be relied upon to deleted.
ensure compliance with the CZM Program when
the State's scope of jurisdiction is insuffi-
cient.

10. The implementation of Policy 34 should be This has been incorporated by re-
expanded to include Corps jurisdiction over vision into Chapter 9.
Section 10 and Section 404 permits.

11. The third sentence of Policy (17) in the DEIS This is a misinterpretation of the
should be deleted--we are concerned by the policy. The policy would not allow
continuing preemption of prime waterfront activities that would create an ir-
areas along Boston Inner Harbor for non water-reversible commitment of the site.
dependent uses due to the degree of irreversi-
ble commitment of the site (p. 11.14).

12. The Program document states that where local The Corps is only bound to the ap-
by-laws provide stringent requirements the proved State policies in the Program.
policies of the Wetlands Restriction Act may The Corps will only be bound by
be superceded (p.8l)--the Corps of Engineers stricter Wetland Restrictions im-
will not be bound by Federal Consistency to posed by locals when they are in-
local restrictions not a part of this docu- corporated into the State Program
ment. Will the Corps be bound by these local by refinement or amendment.
restrictions if not in program?

13. There is no clear understanding of what spe- The Federal agencies will need to
cific environmental criteria the States will abide by the policies as summarized
use to evaluate coastal activities for Fed- in the chart in Chapter 9. These
eral consistency. policies provide a fair degree of
specificity and regulations to be
promulgated in the next six months
will provide still further detail.

14. How does the Program determine: The Dredge Spoil Task force will be
a) clean dredge spoil (p.72) working on specific definitions in
b) high water turbidity (p.92) the first year.
c) contaminated dredge material (p.97)
d) adverse effects on water quality (p.352)
e) adverse effects on marine productivity
(p.352)

15. The "Ocean Sanctuaries" discussion contained This section has been deleted from
in the Volume I Addendum (for insertion on the revised FEIS, but incorporated
page 95 of Volume I) includes the line "any in the administrative record.
dumping or any waste discharge are prohibit-
ed"--the statement should read "or the dis-
charge or commercial or industrial waste are
prohibited."

16. We endorse the 10 areas recommended for APR No response necessary.
designation.

17. "With the two notable exceptions discussed No response necessary.
earlier in these comments, we endorse the
basic policies." 274

7. Department of Defense
Department of the Navy
1. Summary should be modified to State that Has been incorporated in the summary.
Federal actions be consistent to the maximum
attempt practicable with the Program.

2. On page 1-1- insert "if practicable" between This section has been revised,
developments and near under A-5.

3. The seaward boundary should be specified, "Territorial limit" is the language
avoid the term "territorial limit" (p.11.1) of the CZMA in Section 302 and is an
acceptable abbreviation.

High priority uses of open waters should in- This has been incorporated in Chapter
elude marine transportation and National 5.
Defense activities (p.11.2).

5. Policy footnotes in Chapter 2 should be amend-Footnote has been changed to read
ed to read: "Federal Government activities "Federal Consistency required" in
will be expected to conform to this policy Chapter 4.
in accordance with NOA.A's consistency regula-
tions."

6. "...all feasible alternative sites and miti- This has been incorporated in revised
gation measures are..." in its place we would Chapter 9, Number 1.
like to see: "...the reasonable investigation
of feasible alternative sites..." (p.11.54).

7. Federal Consistency mediation should be Chapter 9 uow reflects this comment.
changed to read: procedures will be "sought"
as opposed to "invoked" since procedures are
voluntary (p.11.54).

8. Department of Defense
(Office of the Assistant Secretary)
1. Compelling public interest an page 318 This section has been deleted in the
shoulid include the national interest and 21A regulations.

National defense.
2. The term "applicant" on page 351 should be
changed to reflect NOAA regulations.

3. The Coastal Atlas should list Navy lands This change has been made in a Master
in the Coastal zone. Coastal Atlas located in the MA CZM
Office.

4. Certain Army lands are not listed in the This change has been made in a Master
Coastal Atlas. Coastal Atlas located in the MA CZM
Office.

9. National Marine Fisheries Service
1. The MA CZM should widen the boundary north The boundary was determined by North
of Boston to include areas of maximum salin- Shore Citizens Advisory Committee and
ity intrusion at low flow. is adequate to meet the requirements
of the CZMA. Comment appears to be
based on a misunderstanding.

2. The organizational structure to implement The organizational structure is out-
the program is lacking as well as the pro- lined in Chapter 6, and procedures
cedures by which the policies will be en- for enforcing the policies are listed
forced. after each policy.

3. Endangered species or marine mammals only Section 3.1 has been revised to in-
briefly mentioned in DEIS or program. corporate this concern.

4. Explanation of the permit procedure and net- Section 6.7 has been revised to allow
working of existing authorities is confusing for greater detail on this issue.
and unclear. 25Also see general issue 5.

9. National Marine Fisheries Service (cont.)
5. Networking of existing programs is vague The permit procedures under this
and relationship of lead agency unclear. program will not change. The same
agency that administers program
permits today will remain under an
approved Section 306 program, i.e.,
DEQE will administer all wetland per-
mits. The Office of Coastal Zone
management will become involved in
the permitting process only in the
four situations described in Section
6.1.

6. The Program doesn't prioritize the various This is not a requirement of the
policies. CZMA.

7. The Program fails to coordinate with the The CZNP doesnot officially coordi-
N.E. Regional Fisheries Management Council. nate with the N.E. Regional Council
but through the State Division of
Marine Fisheries there is coordina-
t ion.

8. MCZMP should be conditionally approved for Conditional approval is not an option
one year. allowed under CZMA. Each year the
State will undergo a thorough review
by OCZM to determine if adequate pro-
gress has occurred under Section 312
of the CZMA.

9. Protection of marine resources should be Policy 8 has been incorporated into
included in policy 8(C). Policy I in the FEIS. Policy I spe-
cifically provides protection to
marine resources.

10. Development can occur in sensitive areas. This can happen if the development
meets certain conditions designed to
protect these areas. i

11. Preservation of fisheries should be ad- Policies 1-10, 14, and 19 all deal
dressed in greater detail. with fisheries preservation as well
as section 3.1. Any further dis-
cussion would add unnecessarily to
the length of the document.

12. Regulations should be in place before See general question 2.
program approval.

13. The exemption of the MDC and State Reclam- These concerns have been incorporated
ation Board to the Wetlands Act should be in the revised Policy 1.
clarified.

14. Under Federal Consistency can the State per- The Federal agency's denial of the
mit a project that the Federal agency would permit would terminate the project.
deny? The Federal consistency requirements
cannot force a Federal agency to
approve projects.

15. What checks and balances are there that the See general question 3.
EFSC will assure protection of living
aquatic resources.

16. How are "smaller" projects defined under The MEPA statute defines "smaller"
MEPA. projects generally as new construction
of small structures. Class 3 consists
of construction and location of sing-
le, small, new facilities or struct-
ures and installation of minor new
equipment and facilities. These are
exempt except where such construction
may be viewed as a part of a whole,
larger project not otherwise exempt,
276

9. National Marine Fisheries Service (cont.)
or series of projects, all of which
are interrelated and logically from
the component parts of a single lar-
ger project as specified in Section
4.11
Each agency defines specifically in
its regulations what the small pro-
jects are,

17. To the list of Federal Consistency permits This has been added.
subject to the program add permits under
the Fishery Conservation and Management
Act of 1976.

18. A discussion of goals for fisheries manage- This is not necessary to meet the
ment should be listed in the Program. requirements of the CZMA.

19. Conflicts between commercial and recreat- This is adequately addressed in
ional fisherman should be discussed. Section 3.1 and 3.5.

20. Concerned over conflicts between CEIP There are no conflicts anticipated.
funded projects and NMFS responsibility
under Fish and Wildlife Coordination Act.

21. Coastal Wetlands should be included under This has been included under Policy
Policy 34. 10.

22. The management section should discuss how General interstate coordination is
the Program will coordinate adjacent State discussed in Appendix C.
Fisheries Management Programs.

10. Department of Energy
1. The Program contains the basic authorities No response necessary.
and policies required to support implement-
ation of a CZM Program.

2. Authorities and Regulations for the Energy These regulations are available upon
Facility Siting Council should be part of request. They would add unnecessarily
the Program. to the length of the document.

3. Economic feasibility should be added to the This has been added in Chapter 9.
factors the EFSC must consider in evaluating
the suitability of an energy site.

4. Department requests clarification on under- They are allowed as permitted uses
ground energy transmission lines as a per- under Policy 1.
missible use in SRA's.

5. Additional information should be included See revised Policy 8 and Chapter 9.
in the FEIS on Ocean Sanctuaries and their
effects on EFSC regulations.

6. Department feels a further elaboration on See revised Policy 8.
how OCS development is being planned for and
accomodated is needed.

7. Pilgrim Nuclear Power Plant does not appear This change has been made in a Master
on plate 27 of the Coastal Atlas. Coastal Atlas located in the MA CZM
Office.

10a. Department of Housing and Urban Development
1. We would like to commend the Commonwealth's No response necessary,
recognition of the significance of coastal
hazard management.
2. An evaluation program should be established This will be accomplished yearly by
to review the performance of the program. the state and OCZM.

277

3. A-95 reviewers should be issued specific Each A-95 agency will receive the
guidance on the CZM program to use in their program and additional information
reviews. on permit reviews and state regula-
tions.

4. A firm schedule for the agency regulations See general question 2and Section*
are needed. 6.6.

5. A more readable summary should be prepared See Note to Reader for clarification.
for general distribution.

6. Policy 20 may be contrary to Policy 17 in The port areas in Policy 17 are only
encouraging housing and community develop- segments of urban waterfronts. See
ment in waterfront areas. Policy 7 in this document.

7. Policy 35 is consistent with HUD objectives No comment necessary.
or concentrating resources for central city
and neighborhood revitalization program.

8. Policies 36 & 37 are generally consistent No response necessary.
withBUD policy.

9. HUD had 6 comments on the ETA program. These comments have been incorporated
in the administrative record.

l0b. Letter from Senator Edward M. Kennedy, Senator Edward W. Brooke, Representative Thomas
P. O'Neill, Edward Boland, James Burke, Margaret Heckler, Robert Drnman, Silvio Conte,
Joe Moakley, Michael Harrington, Gerry Studds, Paul Tsongas, Joseph Early and Edward
Markey.
1. We believe that the proposed program is con- No response necessary.
sistent with the policies, purposes, and
goals of the Coastal Zone Management Act.

2. A primary cause of our support for the No response necessary.
program has been the willingness of the
state office to consult with and to heed
recommendations made by local public offi-
cials.

11. Mass. Historical 'Commission
1. Adequate coordination with Massachusetts Consultation with Commission in making
Historical Commission not provided for. federal consistency and MEPA reviews
now provided for in Policy 12.

2. Protection for properties not yet includ- A key requirement of the CZMA is pre-
ed in National Register, and areas not yet dictability; when new historic sites
designated as historic districts should be or districts are designated, MCZMP
provided, will be modified to include them.

3. Policies should cover all cultural No such sites in the coastal zone
resources, including prehistoric and designated; if they are the MCZMP
archaeological sites. will be modified to include them.

4. MCZMP should ensure compliance with Section Program does not vitiate reviews by
106 of National Historic Preservation Act. Advisory Council on Historic Preser-
vation. See Policy 12.

5. Importance of rehabilitation and adaptive See Policy 27 for revision.
reuse order structures should be stressed
in Policy 36.

Ila. Evelyn P. Murphy, Secretary, Executive Office of Environmental Affairs
1. DEIS adequately and properly complies with No response necessary.
requirements of MGLA, Chapter 30, Section
62 (Massachusetts Environmental Policy Act).
2. EIlS should contain an appendix indicating See Appendix I.S
how changes in MEPA as a result of recent i
legislation will relate to MCZMP. 278

Ila. Evelyn F. Murphy (cont.)
3. DEIS (P. II-29) inaccurately characterizes See Chapter 4, Policy 26.
current status of proposed Rte. 25 extension
around Buttermilk Bay by saying the project
"has advanced beyond the environmental
0 ~ ~~~studies and design development phases. No
environmental impact report has been
filed for MEPA review on this project.

12. Mass. Division of Water Resources, DEM
1. Coastal Wetlands Restriction Act need Policy I revised to ensure tidelands
not apply to shellfish beds beyond point licensing rather than the Coastal
of private ownership. Wetlands Restriction Act, protects
shellfish beds beyond mean low water.

2. Application of coastal wetlands restrict- This is correct, but within the in-
ion program to beaches and dunes represents tent of the law.
an expansion of program's scope.

3. DEIS inaccurately characterizes Massachusetts This section has been appropriately
Self-Help Program as supporting purchase of revised.
lands for public recreation and open space.
Lawful purpose is for conservation, passive
recreation, and open space. Also, expend-
iture figures should be updated.

13. Mass. Executive Office of Transportation and
Construction
1. Generally supports the substance of the No response necessary.
policies. Particular support of policy
to promote transportation projects pri-
marily to serve already developed coastal
areas.

2. Very much concerned over method proposed for This concern has been incorporated
reviewing major transportation projects for into revised policy 26 and
0 ~ ~~~~consistency with Policy 35. As proposed between EOTC and EOEA.
this would require the Federal Department
of Commerce to review through the amend-
ment process major transportation projects.
Such a review would be contrary to purpose
of CZMA which was to strengthen state manage-
ment as well as unnecessarily delay projects
found consistent.

3. Alternative proposed which allows CZM to See comment 13-2.
review major projects for consistency be-
fore proceeding beyond the systems planning
stage.

14. Essex Board of Selectmen, Augustus Means, Jr.
1. Requests deletion of page 12 II 17 of March, This statement was derived after
1977 Draft Coastal Atlas: "In terms of meetings with interested citizens,
recreational boating, citizens feel that and both sides of the dredging ques-
the Essex River has reached its saturation tion were presented. Policy 2 allows
point and they do not want to see more maintenance dredging in APR's, and
marinas or boat ramps built. Some people CZM would not oppose requests for
feel that the river needs dredging but many such dredging if the Essex River is
others feel this would only increase boating designated an APR.
traffic and sedimentation."

15. Marshfield Planning kbard & Selectmen's repre-
sentative on Advisory Committee, William Finn
1. MCZMP should not have blanket exclusion of Municipal discharges into the water
sewage treatment plants in APR's or else- bodies of APR's are regulated in ac-
where; should make provision for accepting cordance with the classification of
facilities if research shows or technology the segments within the APR's by
is develops which demonstrates that facilities the Division of Water Pollution Con-
would not have an adverse impact on ecosys- trol. Typically, a variance proce-
tem. dure is provided which would allow
such new technological advances. In
279

15. Marshfield Planning Board & Selectmen's repre-
sentative on Advisory Committee, W. Finn.(Cont.)
addition, the set of permitted and
prohibited uses listed in Policy I
is to be used as a model order in
restricting wetlands within the APR
or elsewhere. Since it is only a0
model, sufficient flexibility exists
to allow new innovative solutions
as they become available. The word-
ing of Policy I has been revised to
clarify this, i.e., that the order
presented is a model only.

2. Offshore sand and gravel mining criteria The CZM Policy attempts to balance
in Policy 6 should be more stringent the need for mining with the need to
given current information on potential prevent adverse environmental impacts.
impacts. The policy focuses on what is thought
to be the primary impact of mining--
the effect on sediment supply to
beaches. More specific regulations,
based on the guidelines in the pol-
icy, will be developed by CZM in
cooperation with the Division of Min-
eral Resources, the Division of Water
Pollution Control, the Division of
Waterways, and the Army Corps of
Engineers. At the present time there
is a moratorium on sand and gravel
mining in state waters.

3. The MCZMP should incorporate the work done The MCZMP has been changed to include
at the Army Corps Experiment Station in a statement on CZM role in research
Vicksburg, Miss., on use of dredge spoil into alternative dredge spoil dis-
to create wetlands. posal methods (see Policy 5, Chapter

16. Wareham Board of Health4a n Seto31)
1. Opposes land access to Long Beach and At the urging of the Wareham Board of
Stoney Point Dike. Selectmen, Marine Resources Commis-
sion, the Board of Health and other
local units of government, the Long
Beach recommendation has been with-
drawn. Limited public access re-
mains a priority for Stoney Point
Dike. A site specific plan will be
developed with the assistance of the
town prior to any development. The
site plan will respect the fragile
and productive nature of the resource.

17. Town Of Mattapoisett, Office of SelectmenAloserspne45
1. Endorses MCZMP in principle. No response necessary.

2. Not clear on implementation. If there See general questions 9, 10 and 11.
is a loss of local initiative, the
Selectmen would oppose MCZMp.

18. Southeastern Regional Planning and Economic
Development District, Raymond Fleurent
1. Expressed concern about a meaningful role See general question 9.
for local elected officials in the CZM
decision-making process.

19. mayor of Salem, Jean Levesque
1. Supports CZM and its recommendations for No response necessary.
Salem. The City looks forward to receiv-
ing planning money and technical assist-0
280

20. Gloucester City Clerk, for City Council and
Mayor, Fred Kyrouz
1. City Council and the Mayor oppose use of This statement has been changed in
Gloucester's waterfront, especially pro- the Master Coastal Atlas, deleting
perty within City jurisdiction, for off- the words "and in developing comn-
shore oil facilities. (March 77 Draft mercial facilities for offshore
Coastal Atlas, p. 14). drlin.

21. Ipswich Board of Selectmen, Merle Pimentel
1. The Board supports the program because No response necessary.
it will protect and preserve our natural
resources.

22. Boston Redevelopment Authority, Director,
Robert Walsh
1. Policy 17 appears to preclude all but The policy has been revised to clari-
industrial development in ports, and fy the circumstances under which non-
does not address how residential water- maritime dependent industrial uses
front communities will be affected. will be permitted.

2. Belle Isle Marsh, Governor's Island Cove, These areas can be nominated, but
Pattons Cove, Savin Hill Cove and Neponset probably would not be high priorities
River Marsh should be designated APR's. for designation under criteria estab-
lished in Policy 2.

3. A greater portion of Boston Harbor should The March 1977 Draft Coastal Atlas
be designated an SADA. has been revised to include an SADA
designation for the Dorchester water-
front from Columbia Point to Fort
Norfolk, and for the North End water-
front from the Charlestown Bridge to
the downtown waterfront renewal area.

23. Provincetown Board of Selectmen, George Bryant,
Clerk
1. Requests special initiatives in securing Because Provincetown is designated an
0 ~ ~~~~federal funds for commercial fisheries. SADA, CZM will work to secure federal
funds for commercial fisheries en-
hancement.

24. Barnstable Conservation Commission~,Arlene
Wilson
1. Expresses support for plan. Some concern Policy 17 provides for use of struct-
that discouragement of structural erosion ural solutions to protect existing
control measures might prevent people from development if there is widespread
protecting existing construction. public benefit. Private erosion con-
trol projects will be allowed if
there will be no significant adverse
effects on the site or adjacent or
downcoast areas.

2. Objects to the goal of clustering growth. Public investment policies of the
MCZMP only encourage the clustering
of growth in order to coordinate
with expenditures in sewer services.
Where sewering is not necessary, e.g.
low density housing, clustering is
not advocated.

3. Suggests less use of technical jargon. This document represents an edited
MCZMP to eliminate technical jargon,
where possible.

4. Supports inclusion of entire Cape within The Cape Advisory Committee voted on
boundary. Dec. 6, 1977 to include the entire
Cape within the boundary.

0 ~~~~~~~~~~~~~~~281

25. Executive Director, Old Colony Planning Council,
Daniel Crane
1. Supports the MCZMP. OCPC interested in No response necessary.
working with CZM in dealing with problems
and opportunities in Plymouth Special
Assistance Development Areas.

26. Executive Director, Metropolitan Area Planning
Council, Carla Johnston
1. Citizen and local official concerns must See general question 9.
be responded to prior to implementation.
Concerns must be reflected in individual
case/proj ect decisions.

27. Selectmen's representative, Freetown, Cecile
Montplaisir
1. A public hearing on regulations affecting Regulations will be drafted and
conservation commissions and planning boards public hearings on the drafts will
should be held before the plan is approved. be held during the first year of pro-
Further changes in regulations should also gram implementation. Any further
have public hearings. significant regulation changes will
also have public hearings. (See
general question 2 for more informa-
tion). A hearing on 21A regulations
was held.

28. Mass. Shellfish Constable Officers Association,
Joseph Almeida
1. Concerned over possible loss of management CZM will not infringe on shellfish
responsibilities within the three mile officers' management responsibili-
limit. ties. Policies I through 6 and 14
will help ensure shellfisheries en-
hancement and protection.

29. Wareham Office of Economic Development, John
Healey, Director
1. Development of public access to Stoney Limited public access remains a prior-
Point Dike would create sewage disposal ity for Stoney Point Dike. A site
and beach maintenance problems. specific plan will be developed
with the assistance of the town prior
to any development. The site plan
will respect the fragile and product-
ive nature of the resource.

30. Wareham Planning BoardRobert Packard, ChairmanAloserspne45
1. Board opposed to development of Stoney Point At the urging of the Wareham Board of
Dike and Long Beach for recreation. Selectmen, Marine Resources Commis-
sion, the Board of Health, the Plan-
ning Board and other local units of
government, the Long Beach recommend-
ation has been withdrawn. Limited
public access remains a priority for
Stoney Point Dike. A site specific
plan will be developed with the as-
sistance of the town prior to any
development. The site plan will re-
spect the fragile and productive na-
ture of resource.
Also, see response #45.
31. Chatham Board of Selectmen
1. Endorses MCZMP and inclusion of the The entire Cape is within the coastal
Town of Chatham in the coastal zone. zone.

32. Board of Selectmen, Town of Bourne
1. Endorses CZM plan and inclusion of town of Amendment process is outlined in
Bourne in coastal zone as long as future general question 7. The Cape Advi-
amendment to boundary is possible, if sory Committee voted on Dec. 6, 1977
desired. to include the entire Cape within
Coastal Zone. (See general question
8).

282

33. Board of Selectmen Town of Harwich
1. inclusion of all Cape Cod as coastal zone The entire Cape is within the coastal
is to extensive. zone. (See general question 4).

34. Martha's Vineyard Commission, Martha's Vineyard
1. Supports MCZNP, but emphasize local imple- The MCZMP proposes a local implement-
mentations. ation strategy. Funds are disbursed
equally among implementing agencies,
i.e., 1/3 state, 1/3 local, 1/3 for
CZM staff for coordination and tech-
nical assistance. (See general ques-
tions 9 and 10 for more information.)

2. Plan needs more emphasis on water quality Further work under Coastal Energy
planning, particularly in relation to minor Impact fund should foster legislation
OCS related incidents. and/or planning to address this
concern.

3. Expressed concern over the viability of See Section 6.4 for a discussion of
networking and the reliance upon memoranda MOU's. AG memorandum opinion re-
of understanding. lating to coordinating authority vest-
ed in Chapter 21A clarifies these
concerns (also see general question
1). Chapter 21A regulations have
been written, with legislative/execu-
tive input to clarify general con-
cepts presented in CZMP.

4. Determination of needs should be made See general question 9.
locally.

5. More funds should be allocated to local 1/3 of total CZM funds will go direct-
level for effective implementation. ly to towns and 50% of CZM staff will
be used for technical assistance to
towns. The majority of implementing
responsibility lies with the state.

6. Regional Planning Agencies can provide 306 funds must be used for implement-
T.A. if funded properly. ation.

35. Brewster Conservation Commission, Brenda Boleyn
1. Expresses support for MCZfr2 No response necessary.

36. Tisbury Planning Board
1. Generally support MCZMP, but has reserva- See response to Martha's Vineyard
tions similar to the ones raised by Martha's Commission. (#34)
Vineyard Commission.

37. Truro Boards of Selectmen and Assessors
1. There should be a strong local advisory Advisory Committees will continue
board during implementation. to give direction to the program
(see general question 9 for specific
responsibilities of advisory commit-
tees.)

2. Support inclusion of entire Cape within The entire Cape is within the coastal
coastal zone. zone. (See general question 4.)

38. Orleans Board of Selectmen and Orleans Citizens
Advisory Committee
1. Express support for MCZMP and for inclusion The entire Cape is within the coastal
of the entire Cape within the coastal zone; zone (see general question 4). im-
request that future CZM work continue to plementation of MCZMP is dependent on
have citizen input. continuing citizen input through
citizen advisory committees. (See

283 general question 9.)

38. Orleans Board of Selectmen and Orleans Citizens
Advisory Committee (cont.)
2. Concerned about OCS development and whether Through the regional advisory commit-
towns will be able to influence process. tees, communities will have the oppor-
tunity to comment to the Department
of Interior on such issues as the
approval of plans for exploration
and development. The details of this
procedure for input will be developed
through the CZM office.

39. Cycil J. Patrick, Provincetown Board of Selectmen
1. Supports MCZMP and inclusion of entire Cape The Cape Advisory Committee voted on
within the coastal zone. December 6, 1977 to include the
entire Cape within the coastal zone.
(See general question 4.)

40. Chatham Conservation Commission
1. Endorsed entire MCZMP and inclusion of all The Cape Advisory Committee voted
Cape Cod in coastal zone. on December 6, 1977 to include the
entire Cape within the coastal zone.
(See general question 4.)

41. Mashpee Board of Selectmen
1. Expresses general support of MCZMP and Final MCZMP has been condensed to min-
inclusion of entire Cape in coastal zone, imize redundancy (see general ques-
with some concern over complexity of plan. tions 4 and 6).

42. Barnstable County Shellfish Advisory Committee,
Burke Limeburner
1. Expresses strong support for MCZMP. No response necessary.

43. Edgartown Board of Selectmen
1. Expresses opposition to plan because of See general question 10.
fear it will usurp home rule.

44. Westport Board of Selectmen
1. CZM districts with power to implement Three Federal regulations require
federal, state and local coastal programs there be a state overview of local
should be established. implementation. This option was re-
jected as being inconsistent with
citizen concerns to preserve home
rule prerogatives. Establishment of
such districts would require passage
of state legislation.

45. Wareham Board of Selectmen
1. Opposes opening Stoney Point Dike as a Stoney Point Dike is federally owned
public beach accessible by land. property at the mouth of the Cape
Cod Canal. There is no land access
to the dike, though boaters use the
beaches along the dike for sun bath-
ing, walking and swimming. CZM has
recommended the purchase of an ease-
ment to provide for limited public
land access.

This recommendation came from citizens
in the Buzzards Bay Region interested
in improved recreation access. Ac-
cording to SCORP and SENE, the Buz-
zard Bay Region is deficient in public
beach facilities.

Because of the special ecology and so-
ciology of the area, CZM will work
with DEM to prepare a careful site
284

45. Wareham Board of Selectmen (cont.)
plan and study of Stoney Point Dike
prior to any potential purchase of an
easement. Any proposal must be con-
sistent with the policies of the CZM
Program.

It may be reasonable to allow only
limited pedestrian and bicycle access
to the site. However, CZM does not
now have adequate information to de-
velop a site specific recreation
plan for the area.

CZM policies dictate that DEM will
work with the Town of Wareham and the
regional Citizen Advisory Council if
a purchase of an easement is in fact
proposed. State law requires DEM to
have local approval of eminent domain
actions.

Information included in the comments
prepared by the Environmental Collab-
orative for the residents abutting
Stoney Point Dike will be considered
in any potential site study by DEM.

The Coastal Atlas has been amended to
include these comments.

46. Wareham, Board of Selectmen and Marine Resources
Commission
1. Public access should be encouraged at the See Comment 45 and Comment 16.
public beaches in the Onset area and not
at Stoney Point Dike and Long Beach.

47. Quincy Conservation Commission
1. Expresses support for the MCZMP. No response necessary.

48. Newbury Conservation Commission
1. Fully endorses the MCZMP. No response necessary.

49. City of Boston, Lorraine M. Downey
1. Expresses support for CZM goals, object- No response necessary.
ives, and policies.

2. Requests a timetable for the promulgation Regulations for the Division of Water-
of EOEA agency rules and regulations to ways and for the Wetlands Protection
implement the CZM program. Act will be promulgated by June, 1978.
Regulations for the Division of Water
Pollution Control, EFSC, Division of
Mineral Resources and the Ocean Sanc-
tuaries Act, are scheduled to be pro-
mulgated during the first year of
MCZMP implementation.

3. Proposes six Areas for Preservation or Other more pristine areas have been
Restoration (APR's) be declared in Boston proposed for designation as critical
Harbor. areas. However, a community may
petition the Secretary of Environment-
al Affairs to designate a critical en-
vironmental area pursuant to MGLA C.
21A S.2(7).

4. Proposes redrafting of policy 17 to allow See Policy 7, Chapter 4.
for non-maritime dependent uses in desig-
nated port areas.
285

49. City of Boston, Lorraine M. Downey (cont.)
5. Proposes three additional SADA's for The March 1977 Coastal Atlas has been
Boston Harbor. revised to include an SADA designation
for the Dorchester waterfront from
Columbia Point to Fort Norfolk and
the North End waterfront from the
Charlestown Bridge to downtown urban
renewal area. However, because the
Charlestown Navy Yard redevelopment
is already the recipient of Federal
funding and because of the great num-
ber of coastal areas needing planning
assistance, CZM will not designate
the area an SADA. Staff assistance
can be made available to assist
Charlestown in their redevelopment
effort.

6. Proposes restating the policies as regulatory See revised Chapter 4.
and non-regulatory.

50. Scituate Board of Selectmen
1. Expresses support for MCZMP. No response necessary.

51. Scituate Conservation Commission
1. Endorses MCZMP. No response necessary.

2. The Waterways Program should be coordinated Regulations are being written for
with wetland regulation promulgated under the Division of Waterways, and revis-
the Wetlands Protection Act. ed Wetlands regulations are being
prepared. The regulations will be
coordinated to respond to CZM poli-
cies, thus ensuring coordinated pro-
grams.

3. Federal agency coordination with state and The "federal consistency" section of
local projects should be mandatory. the CZMA will require that federal
projects, federal permits, and feder-
al funding channeled to states and
municipalities must be consistent
with the approved state CZM Plan.

52. Wareham Shellfish Constable, Edwin W. Studley
1. Opposes CZM recommendation to improve See Comment 45 and Comment 16.
access to both Stoney Point Dike and Long
Beach in Wareham because of their import-
ance for shellfishing.

53. Nahant Growth Policy Coastal Zone Management
Committee, Carl Brooks
1. Expresses support for MCZMP. No response necessary.

2. Requests that Nahant's waters be included Inclusion in an ocean sanctuary re-
in an ocean sanctuary area. quires an act of the state legisla-
ture. If Nahant would like to be
included in a sanctuary, the town
should petition its representative
and/or senator to sponsor a bill.

3. Urge that no sand and gravel mining take See response to 15-2.
place until a complete study of its effects
is completed.

54. Gloucester Downtown Development Commission,
William O'Connor
1. Expresses support for MCZMP. No response necessary.

2. The Gloucester Historic District was omitted District added, see Policy 2, Chapter
from the list of "Historic Districts Estab- 4.
lished by Coastal Communities" on pages 11-
14 of DEIS.
286

55. Salisbury Conservation Commission, Frank Kramer
1. Expresses support for MCZMP. No response necessary.

56. Manchester Conservation Commission
1. Expresses support for MCZMP. No response necessary.

57. Revere Conservation Commission and Growth
Policy Committee
1. Request inclusion of Revere in the Lower Because Revere contains a portion of
North Shore region for purposes of the Saugus/Pines River Marsh, the
public participation. city has an interest in the activi-
ties of the Lower North Shore Advisory
Council. Therefore CZM supports the
participation of a representative
from Revere on the Lower North Shore
Council. However, because the city
has interests in the activities of
Boston Harbor communities, Revere
will remain in the Boston Harbor re-
gion for purposes of public partici-
pation.If, at the end of the first
year of MCZNP implementation the city
and CZM determine that Revere more
appropriately belongs in the Lower
North Shore Region, such a change
will be made.

2. Request that the Saugus/Pines River Marsh Other more pristine areas have been
and the Belle Isle Marsh be designated proposed by MCZMP for designation.
Areas for Preservation or Restoration. However, a community may petition the
Secretary of Environmental Affairs to
designate a critical environmental
area pursuant to Mass. General Laws
Chapter 21A, Section 2(7). Also the
marsh will be restricted under the
Wetlands Restriction Act.

0 ~~~3. Request that two representatives be appoint- While there will be one voting repre-
ed from each community to serve on the CZM sentative per community appointed by
Regional Advisory Councils. the chief elected officials), inter-
est and user groups will also be re-
presented on the councils.

58. Fall River Conservation Commission
1. Expresses support for MCZMP. No response necessary.

2. Suggests a one permit system. See general question 5.

3. Requests designation of adjacent zones While staff assistance will be pro-
outside of the coastal zone as eligible vided within the coastal zone on a
for technical and planning assistance, priority basis, CZM is interested in
particularly with regard to visual access working with communities in areas
in the Taunton River/Mt. Hope Bay area. outside the coast zone to provide
visual access to the coast. Staff
assistance, therefore, could be re-
quested and provided.

59. Dennis/Conservation Commission
1. On page 11-23 of the DEIS, Chapin Memorial See Policy 24, Chapter 4.
Beach is listed as located in the town of
Yarmouth. It is in the Town of Dennis.

2. Expresses support for MCZMP and for inclus- The entire Cape is within the coastal
ion of entire Cape within coastal zone. zone.

60. Duxbury Planning Board
l. Expresses support for MCZMP. No response necessary.

0 ~~61. Hingham Board of Selectmen
1. Questions the impact of MCZMF on home rule. See general question 10.
287

61. Hingham Board of Selectmen (cont.)
2. The MCZMP creates another level of See general question 10 and 5.
government bureaucracy which allows the
state to determine how and where development
will take place in the future.

3. Public participation in the development See general question 9.
of the plan was inadequate, there was no
formal citizen role during implementation.

4. No provision to include regional planning The DEIS and MCZNP do not detail the
agencies on the statewide advisory board. membership of the statewide advisory
board; currently, a representative of
regional planning agencies and the
President of MAPC are members of the
Governor's Task Force.

5. Expresses concern the OCS development and The Energy Facilities Siting Council
CZM together will lead to a loss of local (EFSC) has the final authority over
control over energy facility siting. energy facility siting in the Common-
wealth. The EFSC has agreed to con-
sider CZM policies in making its
determinations. The authority of
local governments and the EFSC on
energy facilities remain unchanged
under MCZMP.

61a. Hingham Planning Board
1. Expresses conditional support for the No response necessary.
concept of MCZMP.

2. Believes public participation has been See general question 9.
inadequate.

3. Concerned about being a part of the Boston CZM is willing to entertain other
Harbor region and therefore losing potential CAC options for Hingham.
influence in MCZMP.

4. Do not understand the implementation of As a developed harbor, Hingham will
Hingham's designation as a developed receive priority for maintenance
harbor. dredging funds and for certain tech-
nical and financial aids from CZM.

62. Hingham Conservation Commission
1. Expresses strong support for approval of No response necessary.
MCZMP.

2. Wishes to review draft EOEA agency regula- CZM will submit draft regulations
tions to implement CZM. to the Conservation Commission for
review.

63. Hingham Harbor Development Committee
1. Does not support MCZMP. Comment noted.

64. Hingham Bare Cove Park Committee, Alice Heelzel
1. Supports concept behind MCZMP but does not No response necessary.
think MCZMP is the answer.

65. Town of Scituate, CZM Commission
1. Expresses support for MCZMP. No response necessary.

2. Desire boundary changed to the "old railroad This change has been incorporated in
bed." Appendix F.

3. APR categorical prohibition of sewage treat- Changes are incorporated to allow
ment plants is not in best interest of town. some discharge in APR's.

4. Purchase of storm destroyed property should Changes are incorporated to modify
only be done with owner consent. the policy dealing with storm damaged
property. However, the state retains
the rights of eminent domain
288

65. Town of Scituate, CZM Commission (cont.)
proceedings. See Policy 16, Chapter
4.

66. Mass. Petroleum Council
1. The bulk of the management policies are The policies of the MCZMP have been
"unenforceable." regrouped in the final EIS into2
categories: regulatory and mon-regula-
tory. The regulatory policies were
the principle ones evaluated in de-
termining adequacy of the program for
federal approval and have been judged
to satisfy the requirement that the
program be sufficiently enforceable.

2. Only "enforceable" policies should be in- Only those policies in Chapter 4 that
cluded in the program because of the burden are asterisked require consistency of
of federal consistency requirements. federal actions. Non-regulatory pol-
icies are included to give public ac-
countability and predictability to
EOEA administrative actions affecting
the Ma. coastal zone (e.g. allocation
of state dredging funds).

3. The program has not been duly adopted; the The program has been adopted by the
Sec. of EOEA does not have the power to Governor as state policy. The Sec-
promulgate state enforceable environmental retary is acting jointly with the
policy for the coastal zone. respective line agencies, which have
the authority to implement state en-
vironmental policy within the scope
of their statutory authority.

4. No hearing was held an the total coastal Draft 21A regulations were included
management program because the 21A regula- in the program submission document
tions were not promulgated prior to the on which 5 hearings were held. An
program hearing. additional hearing was held on the
21A regulation itself. Subsequent
changes in the 21A regulation did
not significantly change the sub-
stance of the program as a whole so
as to warrant additional hearings.

5. The program doesn't provide for adequate How the EFSC procedures satisfy the
consideration of the National interest in the requirements of Section 305(b) (8)
planning and siting of energy facilities. is addressed in Chapter 9. The pro-
grams energy policies, by their ex-
press terms, are to be carried out
by the EFSC. See Policies 8 and 9.
This body in actual practice is re-
quired by its formal regulations to
consider regional and national energy
needs in its long range forecast pro-
cess. See regulations 63.2, 63.6,
66.1, 66.6, and 71.5. Virtually all
electric generating companies are
members of NEPPOL, the New England
Power Pool, and many though Mass.
based, possess partial ownership of
facilities in neighboring states and
therefore include regional data in
their forecast reports to EFSC. (For
example, the EFSC may evaluate an
interstate forecast area when consi-
dering a facility proposed for siting
in Mass). Thus, by statute, regula-
tion, and actual practice, the EFSC
actively considers needs beyond the
borders of the Commonwealth in its
decision making process.

289

66. Mass. Petroleum Council (cant.)
Additionally, the plan expressly in-
cludes a commitment to site coastally
dependent energy facilities in the
coastal zone and to accomodate OCS
development. Through the designation
of port areas (Policy 7), the MCZMP
will encourage coastally dependent
oil facilities (including marine ter-
minals and certain oil storage facil-
ities). Non-coastal dependent facil-
ities will be accomodated if the site
has been approved by the EFSC. Ex-
clusion of maritime dependent uses in
these port areas will be prevented.
These areas are almost exclusively
industrially zoned and industrially
used (oil facilities being a primary
use). Priority will also be given to
these areas in the allocation of pub-
lic funds f or dredging (Policy 19)
14 ports are currently designated.
Additional ports can be designated if
proposed and Policy 7 expressly pro-
vides for accomodating such if the
need is of regional or national bene-
fit.

6. The EFSC is not required to take the See response 66-5.
National or regional interest into account
in its decision-making process.

7. Chapter 6 of the DEIS which discusses Chapter 6 of the DEIS was originally
National Interest was authored by the written by state personnel based on
federal government and is ineffective federal guidance. It now appears as
as a statement of state policy. Chapter 9 of the Ma. Plan and has
been substantially revised to better0
state the state's position with res-
pect to the national interest and
uses of regional benefit.

8. The program suggests that the state may not Attempts by localities to amend zoning
have an effective method for assuring that bylaws to specifically prohibit oil
local land and water use regulations don't facilities in these areas would be
unreasonably restrict oil facilities other unlikely, and would be vulnerable to
than pipelines which may be of regional a suit alleging an arbitrary and ca-
benefit. pricious exercise of the zoning power.
In addition, EFSC can override any
zoning changes made following the
filing of a notice of intention to
construct any energy facility. As
indicated in Chapter 9, an adequate
amount of land is zoned allowing these
facilities.

9. The DEIS fails to adequately analyze pos- As to possible economic cost see
sible costs associated with approval. general question 7; as to possible
negative environmental costs, it's
difficult to conceive of realistic
costs associated with better implement-
ation of existing management framework.
Such a discussion would be simply an
exercise in speculations, for example,
that speeding up the restriction pro-
cess could lead to development in
other parts of the state or that the
application of consistency might chan-
nel OCS related development elsewhere. 0
10. The DEIS fails to consider alternatives in The discussion of alternatives (Chapter
any meaningful way. 12 + 13) covers the meaningful alterna-
tives in reasonable detail.
290

Comment Response
67. Natural Resources Defense Council
1. The program is not sufficiently The program protects wetlands, beaches to
comprehensive. 100' inland of the 100 year flood, recre-
ational and historic sites and addresses
port areas. Energy facility siting is in-
0 ~~~~~~~~~~~~~~cluded contrary to suggestion. See ques-
tin3and alternative 1, Chapter 12.

2. Half the policies are advisory and The existing authority meets minimum fed-
by and large, management of the eral standards. The thrust of the program
coastal zone will continue as it is to improve existing state management.
has in the past which has proved
largely ineffective.

3. The EFSC is not bound by enforce- Statement is unfounded. See discussion
able program policies. Now EFSC in Policy 8, and general question 3 and
regulations are needed to ensure Attorney General's memorandum opinion.
enforceability.

4. Even if enforceable, the energy Chapter 9 now sets forth how the EFSC
policies are too weak to afford planning process does in fact produce added
predictability. predictability.

5. The transportation policy is not The means for ensuring that major transporta-
enforceable and does not help cure tion projects conform to the program has
lack of program comprehensiveness. been revised. See Policy 26 and EOTC/EOF.A
MOU in Appendix B.

6. The lack of program control over lo- Any significant sewering would need a state
cal decisions on sewering renders permit.
infrastructure policy defective in
curing lack of comprehensiveness.

7. There is no commitment to give low Such a commitment is not required by the
priority to infrastructure in under- CZMA.
developed areas.
8. There is no commitment to deny in- Where development would be inconsistent
frastructure where development with the policies, the permits or funding
would be inconsistent with program for such development will be denied. When
policies. institutional supports like sewers and
roads are proposed in undeveloped areas as
described in Policy 26, they will be denied
as described in Policy 26.

9. There is no control over cumula- The most effective way to control cumula-
tive impacts. tive impacts is through infrastructure in-
vestment which is subject to the program.
In any event control of all cumulative im-
pact is not a requirement for approval.

10. Many of the policies are vague and Some policies have been made more specific;
do not provide the requested predict- i.e., those dealing with dredging and with
ability. The provision for disregard recreational and historic sites. The spe-
of the program in the case of "coin- cificity of the energy policies is ad-
pelling public interest"' adds further dressed in question 2 above. Compelling
unpredictability, public interest has been deleted from the
regulations.

11. Chapter 21A together with MOU's may See general question I and Attorney Gen-
not provide adequate legal basis eral's memorandum in Appendix.
for program approval.
291

12. The substantive agency regulations See general question 2. Revised Chapter
must be in place before the detailed 6 makes it clear that it will not be
limitations contained in certain solely "through" new or revised regulations
policies are enforceable and the that policies will be implemented but
program can be implemented. rather that regulations will provide added
specificity. EOEA agencies will be legally
bound to conform to program policies as
written at time of program approval.

13. The statutory authority of the in- The Attorney General specifically addressed
dividual agencies to implement pro- this concern. See general question 1.
gram policies is unclear, particu-
larly tidelands licensing and ocean
sanctuaries.

14. Activities which take place inland 100' inland of 100 year flood plain is an
of 100' of the 100 year flood can adequate buffer zone to control direct
"alter" wetlands through siltation significant impacts.
on storm water runoff and should
be subject to the program.

15. It may be unrealistic to expect DEQE Copies of orders of condition currently are
to review orders of Conservation given to the Regional Engineer and will be
Commissions except on appeal basis logged for computer tracking. If -necessary,
and the importance of the Wetlands DEQE will intervene without an appeal from
Restriction Program may be over- another party. MCZM feels that the Wet-
stated. lands Restrictions are extremely important.

16. The program does not incorporate The proposed Title V regulations were fi-
proposed amendments to Title 5 of nalized and promulgated on July 1, 1977.
the Environmental Code which would (See Policy 3.)
provide important protection.

17. The relationship between the Divi- DEQE has full responsibility for permitting
sion of Water Pollution Control and subsurface disposal pursuant to the State
DEQE Division of Land & Water Use Environmental Code, Title V.
regarding subsurface discharge needs
to be resolved.

18. The use of MEPA as an authority for See Attorney General's memorandum opinion with
program implementation must be care- regard to MEPA and Policies 12 and 13.
fully evaluated.

19. The program does not adequately re- Policies 12 and 13 provide for conditioning
solve conflicts among competing uses, or denying activities requiring a State
particularly with respect to recre- permit or federal consistency which nega-
ational sites. tively impact recreation or historic sites.
See also alternative I responding to compre-
hensiveness of the program.

20. Boundary must clearly encompass all The program includes all such areas. The
areas lying inland of 100' from the Coastal Atlas is being suitably revised.
100 year flood plain or landward See response 1-81(n).
edge of wetlands.

21. Anadromous fish runs should be in- They are included.
cluded in boundary wherever they
occur.

22. Justification for excluding most of See general question 4 for discussion of how
inland portions of Cape Ann ques- boundary was chosen and see response 1-42
tioned. for Cape Ann response.

23. A major failure of the program is Protection of GAPC's and APR's is ensured
the failure to establish enforce- through existing statutes. CZM policies
able policies and regulations to will be implemented through such statutes
ensure protection of GAP-C's/APR's. as respective regulations are revised and
written. See general question 11 regarding
such regulations.
292

24. There are no enforceable guidelines Policies 1 and 2 explicitly state per-
on priority of uses for GAPC's or mitted and priority uses for GAPC's and
APR's. APR's. These policies are enforceable
through existing statutes.

25. The program does not manage all uses See responses 67-1 - 5, 12 & 19.
which have a direct and significant
impact on coastal waters.

26. The program goes too far in accommo- The location of energy facilities may be in
dating energy facilities in the the national interest and in such instances
coastal zone. their provision must be accommodated.
Other commentators have argued that the
program places too many restrictions on
energy facilities.

27. Federal consistency procedures are See revised Chapter 9.
unclear.

28. The program was formally submitted The program was not formally submitted to
prior to public hearings. the U.S. Department of Commerce until
January 20, 1978. A letter dated March 18,
1977 from the State, refers to an earlier
work program draft.

29. Unresolved issues remain concerning A memorandum opinion of the Attorney General ad-
legal basis for the program. dressed this issue. See General Response
and Summary in Appendix.

30. Section 2.0 (Purpose) overlaps with The Purpose Section is intended to summar-
Section 5.2. ize the scope of the regulations. Section
5.0 et. seq. and other sections are the op-
erative portions of the regulation, there-
fore it is anticipated that these may over-
lap.

0 ~~31. Agencies which may have a role in im- Regulation -revised to delete exhaustive list
plementing CZM Plan may be left out of agencies so as not to overlook one, or to
because the definition of "appropri- be hampered by later administrative reorg-
ate EOEA agency" gives the Secretary anizations or new statutes. There is no
the authority to exclude an agency intention here to exclude any relevant E0EA
from coverage. agency but to permit a reasonable process
for voluntary withdrawal if any agency does
not in fact have an interest in an issue.

32. Confusion exists concerning APR/ACEC See revised regulation.
designation.

33. Boundary description is not clear The boundary definition has been rewritten
whether natural resources inland of to clarify that all resources inland to
the boundary roads are included in 100 year flood plain are included regardless
the coastal zone. of the roads.

34. It is too difficult to understand The FEIS has been written to provide all
exactly what constitutes the CZM essential elements of the Program in one
Plan. document. See general question 6 for more
information.

35. "State Environmental Policy." Exactly All of Chapter 4 has been adopted in the 21A
what will constitute should be clearly regulations and is State Environmental
set forth. Policy.

36. Authority of individual agency to Policy Sb and c has been incorporated into
implement policies Sb and Sc is Policy I and reworded. It is enforceable
questionable. through provisions of the Wetlands Protec-
tion Act.

293

37. There are not enough enforceable See response 67-2.
policies.

38. Incorporating entire program by ref- 'Done.
erence should be dropped.

39. Evidentiary weight of program needs The regulations have been revised to clarify
clarification. the meaning of "dispositive.", in accord with
this suggestion.

40. Change the word "hearing" to "pro- Done.
ceeding" in 5.5.

41. "Substantial and compelling public Language deleted.
interest"~ language should be dropped.

42. Need individual agency regulations See general question 2.
ptior to approval.

43. There should not be an automatic The CZM plan utilizes a system of modified
finding of federal consistency in equivalency. Projects consistent with cat-
critical areas. egorical concurrences will not require a
filing. For other projects, public notice
will be given. CZM will have lb days to deter-
mine whether the project is above a threshold
such that CZM will participate in agency review
or whether the federal consistency determin-
ation can be equivalent to the state permit and
have the agency issue the concurrence. This
allowsflexibility for more intensive review of
major actions, but minimizes bureaucratic
involvement.

44. Advisory Council language is weak. Language has been clarified.

45. Conflict Resolution--The conflict Purpose of mechanism is to be informal.
resolution process should be more
formal and open to more partici-
pants than currently provided.

46. Projects in critical areas should CZM is supporting the concept of categorical
automatically be subject to NEPA inclusions within the MEPA reg. We feel the
Environmental Impact Report. revised statute creates a significantly im-
proved process for environmental evaluation
because it occurs at the time of filing for.
state licenses.

47. In critical areas the projects al- The grandfather clause for the regulation as
ready on file should not be "grand- a whole has been rewritten to impose a time
fathered." cut-off and/or a stage-of-processing-cutoff
for the regulation to apply.

48. Expand explanation of federal con- Done.
sistency.

49. Add NRC to list of federal permits. Done. It appears to be a typing error,
as the permit description is included.

50. Individual permits and grants pro- This is simply too burdensome for all per-
grams should be included as Man- mits will fall under the federal consisten-
agement Program Decisions to be pub- cy notice provisions. Federal consistency
lished in the Monitor. for federal grants will now be required
so listing them would also be highly repe-
titive.

294

51. Include consistency criteria. The National Interest section has criteria
for interpreting and applying energy and
recreation policies. Secondly, Section
7.14 includes the thresholds which CZM will
use to evaluate whether it will become ac-
tively involved in the federal certificate
process or whether the EOEA agency will.

52. CZM has too much of an equivalency CZM will be staffing many new technical
process for consistency and people in the line agencies; it does not
shouldn't put so much faith in line want to create a duplicative process un-
agency implementation. CZM should necessarily. Only those projects above
be able to override any agency de- the threshold described in 7015 will be e-
termination of consistency. valuated by CZM. The regulations are pur-
posely flexible in order to allow f or ad-
justments as experience suggests. A re-
vised 7.15(c) makes clear, if new information
reveals to CZM that it should participate
more fully in the agency's process after
its initial determination it may do so.
CZM may not set aside a permit issued by
EOEA agency pursuant to its own statute
but retains the authority to deny federal
consistency.

53. The incorporation by reference lang- Incorporation by reference language de-
uage is unwise because amendments to leted.
regulations must go through the Ad-
ministration Procedures Act.

54. Process regulations are only illus- These regulations will not be in effect
trations and procedural. Question prior to program approval. CZM appreciates
some of the provisions. the effort invested in this comment and
will evaluate these comments closely in
drafting the agency regulations.

295

Comment Response
68. Boston Chamber of Commerce, et al
1. The DEIS fails to accurately describe The DEIS summarized the MCZMP and has
the MCZMP and addendum. been redrafted in the FEIS to represent
the Program and reflects the comments
received during the DEIS review period.
See note to reader.

2. There are contrasting statements in See general question 3.
the EOEA memorandum (in the Program
Appendix) and the DEIS regarding
the EFSC's statutory duty to ensure
consistency with the Program.

3. There is a different assertion of See revised Chapter 9 for an accurate des-
jurisdiction regarding federal li- cription of this jurisdiction.
censes and permits for OCS explora-
tion and development between page
350 of the MCZNP and page 1-4 of
the DEIS.

4. The DEIS does not adequately address See general question 7.
environmental and socio-economic
impacts of the MCZMP.

5. The statement limiting local proj- No such statement appears on page 11-5
ect monies to $20,000 and a one- of the DEIS. The statement found on
year funding period per project of page II-5 reflects the CZMA requirements
federal CZM grant money referred that annual grants be made available to
to on page 11-5 of the DEIS is mis- the states. However, consecutive grants
leading. are available on a continuing basis.

6. The DEIS does not adequately dis- According to the CEQ Guidelines, the
cuss alternatives in that specific discussion addresses "Alternatives to
alternatives to the 38 proposed the Proposed Action." The proposed
policies are omitted. action is the federal approval of the
MCZMP as submitted, and the federal alter-
natives address options available to them
other than Program approval. One state
alternative, that of revising the Program,
has discussed policy modifications.

7. The DEIS does not discuss the impact Inland impact section has been expanded
of alternatives on inland and out- in Chapter 10, however a discussion of
of-state areas. out-of-state impacts would be too specu-
lative to discuss.

8. The DEIS does not discuss the desig- The designation of the Office of State
nation of the State Planning Office Planning or Office of Communities and De-
nor the Office of Communities and velopment as lead agencies is not a feas-
Development as the possible lead ible alternative. Neither agency has sta-
agency under the MCZMP. tutory authority to implement necessary
aspects of an approvable CZMP. This was
recognized several years ago, when the de-
cision was made for EOEA to receive the
planning grants.

9. The DEIS does not accurately des- The FEIS reflects the federal regulations
cribe the federal consistency re- regarding federal consistency. The FEIS
quirements of the CZMS as they re- accurately reflects the interpretation of
late to the MCZMP. federal consistency to date.

10. The MCZMP does not comply with fed- The FEIS does clearly indicate that the
eral consistency requirements by ex- MCZMP will not apply federal consistency
tending these requirements to exist- to existing facilities or facilities under
ing facilities and to Pilgrim II. construction. The FEIS further clarifies
that Pilgrim II is "grandfathered" as all
state permits have already been issued.

296

11. The DEIS does not accurately describe It is not required as a part of this im-
the Program's impact on federal regu- pact statement to discuss the impacts of
latory agencies and through them its federal consistency on the federal agen-
impact on the environment. cies, only to discuss the impact on the
environment. These impacts are adequately
discussed in Chapter 10.
12. The "working arrangements" with fed- These "working arrangements" have not been
eral agencies for achieving concurrent developed. Currently, separate processes
permitting or licensing procedures and hearings are held for federal and
are unknown. state permit and license applications. The
development of these concurrent procedures
would greatly streamline these permit pro-
cesses and will be a task for development
in the first year of Program approval. See
Section 6.7 for clarification.

13. The draft EOFA CZM regulation 7.23 The amendment of the list of federal acti-
giving the state the authority to uni- vities subject to consistency determina-
laterally amend the list of activities tions is discussed in Section 930.54 of
for consistency determinations is con- the federal regulations pursuant to Section
tradictory to NOAA rules proposed in 307 of the CZMA. The state regulation
Section 930.55 meets federal requirements of making the
refinement and other information available
to the federal agency, OCZM, and the pub-
lic. Any refinements to the approved list
are subject to the approval of the Assist-
ant Administrator.

14. Draft EOEA CZM regulation 7.19 con- This has been changed in the FEIS to re-
cerning federally permitted activi- flect the wording and requirements of
ties occurring outside the coastal Section 930.54 pursuant to Section 307
zone is inconsistent with NOAA of the CZMA.
rules proposed in Section 930.54(b)
and Section 304.1 of the CZNA.

0 ~~~15. Regulation 7.19 asserts a state CZM The section has been revised to reflect
power to require modifications and the current language of the federal regu-
changes of actions which is beyond lations. In no instance may CZM impose
its ability to enforce. conditions which are not consistent with
the policies.

16. EOEA regulation 7.11 fails to ap- The redrafted regulations at Section 7.11(b)
prise applicants seeking consistency include such protection for applicants.
certification of their rights under
CZMA and NOAA regulations 930.58
of their right to withhold "confi-
dential and proprietary material."

17. EOEA regulation 7.16 is inconsist- Federal consistency applies to the coastal
ent with the Section 307(e)(f) of program policies with asterisks which may
the CZNA by denying federal consis- be more stringent than federal law.
tency to activities which do not
meet state air and water standards
which may be more stringent than
those of the Federal Air and Water
Acts.

18. The criteria and policies for See general question 3.
energy facility siting represent
an illegal subdelegation of auth-
ority and abdication of responsi-
bility of EFSC.

19. The Plan incorrectly implies that The FEIS clarifies that federal consistency
the state will exercise federal will be applied, in a regulatory sense,
consistency over areas not able to only as applicable in NOAA regulations pur-

be regulated at the state level. suant to Section 307 of the CZMA.

297

20. The DEIS is an afterthought to an al- The proposed MCZMP was submitted for
ready adopted state CZM program for federal approval and is was determined
which the federal decision for ap- that approval appears sufficiently possible
proval has been made. This does not to warrant issuance of a DEIS. No final ap-
conform with the NEPA requirements. proval has or will be accorded until 30
days after the FEIS is available and the
Assistant Administrator has reviewed it
and other documentation on approvability.

21. Item #8 (p.1-1 of DEIS) misstates See Section 1.1 for revision.
the provisions of the Plan in that it
does more than "consider" non-structural
solutions for coastal erosion problems.
It rather states a preference to such
solutions.

22. Item #9 (p.1-1 of DEIS) is incorrect See Section 1.1 for revision.
as the Plan goes beyond identifying
critical areas by restricting or as-
signing priorities to land use.

23. The Plan sets up a new office in EOEA The EOEA was established in 1969 by the
with responsibilities which have seri- Governor of Massachusetts with responsi-
ous economic effects. bilities pursuant to the Act and 21A regu-
lations. The economic effects are inci-
dental and result from the exercise of its
mandated authorities.

24. It is unclear whether or not the Plan See answer to response 68-6.
is comprehensive and provides ade-
quate management of important envi-
ronmental and economic resources due
to its failure to discuss alterna-
tives.

25. All relevant "interests" have not The HCZMP has had a broad public partici-
been consulted nor relevant view- pation program which, though concentratedS
points considered. primarily in the coastal zone, has em-
ployed the media and reached public and
private agencies across the state. Public
meetings were held throughout the program's
development and comments were incorporated
into the draft programs. The DEIS process
solicited the comments of interested par-
ties across the state and the nation and
these comments are reflected in the FEIS.
See general question 9.

26. The absence of EOEA and other agency The regulations (available in draft form
regulations constitutes a lack of before program approval) will be promul-
comprehensiveness and makes it diffi- gated during the first year of 306 ap-
cult to analyze and comment ade- proval and will be based on the policies
quately on consistency requirements as explained in the MCZMP. Thus the scope
and the meaning of many policies. of the program will be no more comprehen-
sive following promulgation. Federal
agencies will not be required to be con-
sistent with the regulations until they
have been incorporated into the program.
As to the question of specificity, see
response 6-13.

298

27. The policies, standards, objectives The FEIS states these policies, standards
and criteria upon which decisions are and objectives more clearly. In addition
based are not "articulated clearly" the simplification of the program into
and not "sufficiently specific" to one compendium document should further
provide a "clear understanding" of clarify the program goals, objectives, and
the content of the program nor give related impacts. The final EOEA regula-
a clear sense of direction or pre- tions are included in the FEIS and draft
dictability. agency regulations are available for public
review.

28. There are not "sufficient policies The policies listed as being "enforceable"
of an enforceable nature" contained in the DEIS are sufficient to meet the
in the Plan. OCZM requirements for a comprehensive
coastal program. To dispell confusion re-
garding "enforceable" policies the policies
have been delineated as regulatory and non-
regulatory in the FEIS. All regulatory
policies and non-regulatory policies which
involve state funding actions are consid-
ered enforceable.

29. The "consistency" powers and program Applications to responsible agencies for
approval of the MCZMP cannot confer li- permits will follow the same procedures
censing authority to an agency not as they did previously. Consistency de-
authorized for these responsibilities terminations will be made by the EOEA.
under state law. This is not, but
should be reflected in the DEIS.

30. There are inconsistencies between the Local home rule powers will not be usurped
MCZMP and other state programs as to by the MCZMP. The prime responsibility
whether state or local government has for coastal zone management is the state
"prime responsibility" for land use EOEA. Where state and local permit auth-
implementation. orities conflict, and a state permit is
needed, the state determination rules ac-
cording to standard Massachusetts adminis-
trative procedures. Further explanation is
included in Chapter 8.

31. The MCZMP fails to meet the require- The cover letter to the FEIS from the
ments of Section 306(c)(1) of the Governor of Massachusetts meets this re-
CZMA as it has not been "adopted." quirement and the 21A regulations have
been promulgated.

32. The opportunity for formal public The EOEA final regulations are in the FEIS,
input required for adoption of gen- and were available for comment under MEPA
erally applicable regulations has and M.G.L. Chapter 30A. The draft regula-
not taken place for the EOEA and tions for the other agency programs will be
other agency regulations. available for review and comment before
incorporation in the MCZMP.

33. EOEA and other agency regulations See general questions 2 and 7.
should be adopted and in place be-
fore an adequate assessment by the
public and OCZM of the environmental
and socio-economic impacts of the
MCZMP can be made.

34. The state has not fulfilled the re- See Chapter 7 and Appendices C,D. The
quirement of coordination of the MCZMP coordinates with the administrative
CZMP with other local, areawide, procedures act regarding local and state
and interstate plans. procedures. Public hearings were held in
several towns along the coast and the views
of the public have helped to shape the MCZMP,
DEIS and FEIS. Letters from Rhode Island
and New Hampshire appear in the FEIS cer-
tifying consistency with adjacent state
plans.

299

35. The MCZMP fails to fulfill the require- The state has the authorities necessary
ments of the CZMA that the state has to implement the program. See Attorney
adequate authorities and ability to General's opinion.
administer land and water uses.

36. The MCZMP fails to contain an ade- See Chapter 9 for discussion of regional
quate method of assuring that local benefit.
land and water regulations do not
unreasonably restrict uses of re-
gional benefit.

37. A discussion of what areas of the The program is not required to specify
coast are to be left open specific- particular sites for such uses, but rather
ally for energy uses, defense uses and to insure predictability in siting. The
other national and regional uses Summary Map in the March draft indicates
should be provided. development, conservation, preservation
areas, etc. and will be used as a policy
guide for future state decisions.

38. The EOEA does not have the authori- See general question 1 and Attorney Gen-
ties necessary to implement the pro- eral's memorandum in Appendix.
gram.

39. The boundaries are too vague. What It is the description of roads and natural
is the boundary--the map, the atlas, features described in Chapter 2, the 21A
the description of roads or natural regulation Appendix G and boundary Ap-
features? pendix F, and are shown on the maps in the
Coastal Atlas.

40. The MCZMP does not adequately meet See response 68-38.
the requirements of Section 306(e)
and therefore could not assert the
powers referred to in Section 306(d)
(1.

41. The MCZMP does not adequately dis- See response 68-36.
cuss the effects of local regula-
tions on uses of regional benefit,
the three new planning elements and
air and water pollution control re-
quirements.

42. Small informal meetings do not sub- Only one public meeting on the program is
stitute for highly publicized open required, but in fact there were five on
meetings. the DEIS Program.

43. The Governor did not certify the That is correct. However, the entire re-
October 7 Addendum. vised program FEIS has been certified by
the Governor (see cover letter).

44. The overview does not state how the This is described in the alternative sec-
plan was chosen among other alterna- tion of the DEIS and is not necessary in
tives. the overview.

45. The coastal zone is not adequately See cozmment 68-39 above.
described.

46. The boundary description implies it The description has been clarified in the
can be expanded as the situation FEIS. See Chapter 2, 21A regulation Ap-
calls for it. It is unclear whether pendixOG and Appendix F.
the boundary description or map is
binding.

47. There is no discussion as to why this See general question 4 for more detail.
boundary was drawn or alternatives
considered.
300

48. The MCZMP imposes new growth manage- There is no discussion of growth manage-
ment standards on existing law. ment in the MCZMP. The implementation of
policies which may effect growth are
oriented towards the protection of GAPC's
and/or efficient utilization of public in-
vestments. The impact of the policies on
growth has been addressed in this document.

49. The legislature has not granted the The CZMA gives a state with an approved
Secretary the power to interfere with coastal plan the authority to decide
funding applications of local govern- whether the expenditure of federal funds
ments. in the coastal zone is consistent with the
approved coastal plan.

50. Water Quality planning and CZM may MCZMP carefully incorporates the 208 plan-
conflict. Why continue "208" plan- ning process and 201 facilities develop-
ning if CZM has already made the de- ment process into CZM policy.
cisions?

51. On p. II-3 the DEIS presupposes the Although the restrictions may be placed on
Wetlands Protection Act is a first wetlands it is not mandatory. See revised
level introduction to the Wetlands discussion, Chapter 5.
Restriction Act.

52. Page 11-4 of DEIS iaes not discuss See Sections 3.4, 3.6, 3.7, and Chapters
incentives to economic development. 4 and 5 for this information.

53. MEPA does not give CZM authority to See response 67-18 for clarification.
establish new standards under ex-
isting laws.

54. The DEIS does not describe specific See Chapter 5 of the FEIS and the Summary
areas in the remainder of the coastal Map of the March 77 draft.
zone where development can occur.

55. There is no description of economic Description not necessary in the overview.
impacts on Pages 11-3-6.

56. On page II-6 it appears all projects Only projects within the coatal zone will
in the entire state will be reviewed be subject to the policies. The section
for conformance to the CZM plan. referred to in the comment is entitled
"Remainder of the Coastal Zone"; there-
fore it should be clear that the policies
apply only within the coastal zone.

57. The potential powers of the CZM Plan The CZM plan is based on existing state
are grossly understated. laws and regulations aiid on federal con-
sistency provisions of the CZMA.

58. The overview section should be ex- This would add unnecessarily to the length.
panded to include a discussion of pro-
gram funding.

59. The imposition of restriction on "all" Analysis occurred during program develop-
beaches should be analyzed. ment. It would add unnecessarily to the
length of the document.

60. Are the recommendations of the Wet- DEQE will collaborate with the Wetlands
lands Program Review Board going to be Review Board in review of draft regulations.
incorporated in the new DEQE regula-
tions for the Wetlands Protection
Program?

61. The proposed Memorandum of Under- The DFWRV is bound by its statutory re-
standing with DFWRV is not a legally sponsibilities and the MOU only requests
proper method. the Secretary to enter into any conflicts
among EOEA agencies.

62. DWPC cannot agree in advance not to Policy I has been revised. DWPC is not
issue licenses for activities pro- required to categorically prohibit cer-
hibited under Policy 1. tain discharges.

63. Where is the DWPC Memorandum of DWPC is under DEQE which has an MOU al-
Understanding? ready.

64. What are the definitions of: The terms are sufficiently specific and
self-explanatory to define their intent.
Minimize interference, Policy 4
Minimize adverse affects, Policy 5,12
Discourage, Policy 8
Hazardous, Policy 8
Prefer natural buffer, Policy 8
Widespread public benefit, Policy 12
Protect, Policy 2
Impacting, Policy 2
Minimize adverse impact, Policy 2
Ensure, Policy 3,5,9
Condition, Policy 4

65. Alternatives to Policy 2 should be ad- See response to 68-6.
dressed, and environmental, social and
economic impacts analyzed.

66. The effects of transferring impacts to Analyzed during program development. Not
other areas of the coastal zone should necessary to be here.
be analyzed.

67. The Plan does not explain methodology These are based on maps provided by the
for designating anadromous fish runs. Division of Marine Fisheries.

68. The world "localized" should be in- This section has been deleted from the FEIS.
cluded on page 60 of the Plan.

69. Discussion of recreational boating This not necessary for program approval.
should include a discussion of leach-
ing of toxic anti-fouling coatings
from boat bottoms.

70. Dredging section should discuss bene- Environmental social and economic impacts
fits of dredging and economic/social are discussed in Chapter 10.
impacts.

71. Use of word "conserve" as a regulatory The wording has been revised.
directive unclear.

72. No discussion of alternatives to See response to 68-6.
Policy I or the impacts of such al-
ternatives.

73. The Wetlands Protection Act does not See revised wording of Policy I which
give the Commissioner of DEQE the clearly specifies how only the Wetlands
right to protect certain coastal Restriction Act will be used to prohibit
areas in advance of permit decisions. uses on a priori basis.

74. The Wetlands Restriction Act does not The list of prohibited and permitted uses
authorize a pre-determined system of is a model order as explained by the re-
permissible or priority land use con- vised language.
trols.

75. Alternatives to the permitted and See response 68-6.
prohibited uses under Policy 1 are
not addressed to new paragraph N.

76. How much land and water area is re- Currently, 30% of GAPCS are restricted.
moved by the Policy I permitted and GAPC's constitute 12% of the coastal zone.
prohibited uses? 30 2

77. Paragraph N conflicts with paragraph This is a misinterpretation of the two
C on page 83. sections--paragraph N allows the conduits
transporting the discharge to cross the
cited wetlands while paragraph C prohibits
the discharges into the wetlands.

78. No basis for putting burden of proof This has been clarified in the revised
on applicant, since permit statutes Policy 2.
regulates variances or exceptions.

79. EFSC did not agree not to site energy This is correct--they only will give prime
facilities in APR's. consideration. See revised Policy 2.

80. Policy 3 requiring highest level of See revised Policy 3.
water quality infringes on the re-
sponsibilities of DWPC.

81. CZM should not and has no authority DWPC and EPA still have primary review of
to review NPDES permits. NPDES permits; however, CZM may review for
consistency to applicable policies.

82. Will CZM monitor and coordinate 208 Only those 208 programs within the coastal
programs throughout the state? zone.

83. What standards are being proposed for See response 67-16 and revised language
the Title V Code? These should be in of Policy 3.
the FEIS.

84. Criteria for solid fill piers, bulk- The criteria are not overly broad. See
heads, and other marine structures, response to 68-6.
are overly broad and stated in ab-
solute terms. Alternatives of this
policy should be addressed and anal-
yzed.

85. How can CZM legally exercise control Control is provided by means of the Wetlands
over the design and construction of Protection Act, also MEPA and federal con-
highways, roads and bridges? sistency.

86. No authority exists over dredging MGLA Chapter 2TA. S.14 confers such auth-
and transportation and disposal of ority on DEQE.
dredged material.

87. Policy 6 is too absolute as a pro- This is a misinterpretation of the Policy.
hibition of activities of economic The Policy does not provide "absolute pro-
importance. hibition"--the word "accommodate" is used.
See Policy 6.

88. Does Policy 7 create new licensing This is an advisory, non-regulatory policy--
standards? no new standards are established. See re-
vised Policy 14.

89. The DEIS and Plan do not adequately See Section 3.2 for a brief description
identify the scope of the coastal and hazard map.
hazard problem in Massachusetts.

90. Alternative solutions to erosion See response 68-6.
problems include: no preference
for or against structural solution.
Should be analyzed.

91. Subpart "a" of Policy 8 and Subpart Policy 8 has been incorporated into Policy
"b" are illegal. 1. See revised Policy 1.

92. The relationship of EOEA with other See Policies 15 and 26 which details the
state agencies in implementing relationship between CZM and EOTC and DWPC.
Policy 9 is unclear.
303

93. Will land owners be compensated for Yes, just compensation will occur.
lands acquired under Policy 10?

94. Where do the funds come from to im- BOR Lands and Water Conservation money
plement Policy 10? could be used and other programs which
are listed under Policy 16.

95. Policy 12 is biased against struc- Structural solutions will be approved when
tural solutions. nonstructurals are shown to be too costly,
ineffective, or legally infeasible.

96. Subpart "a" and "b" of Policy 12 One of the seven interests of the Wetlands
are unclear and not legally en- Protection Act is "storm damage preven-
forc eabl1e. tion" which permits implementation of this
Policy. (See Policy 4.)

97. The terms "adjacent properties" These terms will be used on a case-by-case
and "downcoast areas" are too vague basis with individual permit applications.
in Policy 12 to measure impacts of
structural solutions.

98. What is the meaning of the following The terms are sufficiently specific and
terms in Policy 12: descriptive to define their intent.

cost prohibitive
ineffective
legally infeasible
greater than local significance
substantial public benefit
seriously impair
adversely affect
downcoast areas
extreme circumstances

99. There is no authority to implement This is only an advisory policy. See re-
Policy 13. vised Chapter 4, Policy 18.

100. Justification should be given for This advisory statement referred to their
statement that "utility systems visual impacts.
should be placed underground."

101. The Massachusetts Historical Commission The Commission will advise the CZM program
does not have the power to deny through which does have the authority.
federal consistency, actions that would
harm historic qualities.

102. Clarification is needed as to whether This will apply to all projects requiring
MEPA visual concerns are to be ap- a state permit or funded by the state or
plied to private projects or only to federal government. (See Policy 12.)
government projects.

103. There is ambiguity as to whether This ambiguity has been corrected in the
Policy 15 is or is not enforceable FEIS. See revised Policy 20.
for federal consistency purposes.

104. The Procedural Steps for the Scenic See Policy 11 for clarification and the
Roads Act, and Outdoor Advertising OAB regulations.
Control Board are not adequately
outlined in the program.

105. Policy 17 is contrary to law. See revised Policy 7 for clarification
and Attorney General's opinion.

106. A more broad definition of coastal This will be looked at during the first
dependency, namely one of economic year of Section 306 funding, but is not
dependency ought to be studied. required for approval.

304

107. Policy 18 is vague and unclear. Will No, it will not. See revised Policy 19.
this policy result in foregone eco-
nomic development policies?

108. Policy 19 and 20 are biased against See revised Policy 20. It is not biased
balanced economic development. against economic development.
0
109. The plan fails to adequately address The SRA category has been deleted from
the economic, property tax, environ- the program.
mental and social impacts of SRA's.

110. Impacts of the five interests listed Impacts on development resulting from pro-
under Remainder of the Coastal Zone tecting these five interests are ade-
(p.11-5) are inadequately described. quately addressed in Chapter 10 and Chapter
11.

111. The DEIS does not adequately describe The MCZMP does not propose to take 50
the effects on competing land use of miles of beach.
the public taking of an additional
50 miles of beach.

112. The program does not adequately ad- The DEIS adequately addresses impacts of
dress the impacts on the recreation the recreation program pursuant to CEQ
policies. guidelines.

113. DEIS fails to discuss alternatives The EIS does discuss alternatives such as
to public acquisition for expanding increased public transportation to exist-
recreational facilities and access ing beaches.
to coastal resources.

114. It is unclear whether the energy See general response 3.
policies are enforceable on the EFSC
since they are not listed as enforce-
able. How can the EFSC "weigh" and
"consider" the 18 specified policies
listed and not have them be enforced?

115. There is a conflict within the DEIS There is no conflict. Both texts explain
(p. IV-5 and p.5 of the attached that the EFSC is obligated by its regula-
August 23, 1977 memorandum) regard- tion 62.9(3) to follow the CZM policies
ing when and how the CZM policies once they become state environmental policy
are binding on the EFSC. as will be done when the 21A regulations
are promulgated. The Memorandum of Under-
standing itself does not trigger the poli-
cies as binding it merely clarifies when
the binding occurs.

116. Even 21A regulations will not trigger See general question 3 and Attorney Gen-
enforceability on EFSC (see above) eral's findings that 21A regulations are
since 21A regulations are illegal. legal.

117. EOEA cannot establish land use and See general question 3.
energy siting policies which are
binding on EFSC.

118. EOEA cannot bind EFSC to the principle The EFSC is not bound to follow this prin-
of "coastal dependency." ciple, they have agreed to consider it in
making their decisions.

119. EFSC cannot be required to disapprove See revised wording of Policy 2 which clari-
the siting of energy facilities in fies EFSC's consideration of APRs in siting
APRs. determinations.

305

120. The Secretary of EOEA cannot be an ad- The Secretary serves dual statutory func-
vocate of environmental concerns as a tions regarding energy facilities in the
member of EFSC. coastal zone--as a member of the Council
and pursuant to various environmental sta-
tutes, to carry out and implement environ-
mental policy and laws. Principles of
administrative law are strict in that a i
single administrator cannot rule in adju-
dicating matters where to do so would be
a pecuniary or personal conflict of in-
terest, but the law holds that matters of
policy are not governed by as strict a test.
The Secretary will act fully within the law,
but by her appointment to the Council, she
must inherently bring to its deliberations
an environmental perspective.

121. EOEA cannot impose eighteen new See general question 3.
policies on the energy industry and
EFSC by the manner proposed.

122. EOEA cannot by MOU bind EFSC to is- See general question 3.
sue regulations.

123. Policy 33b, requiring the accelera- This is an incorrect reading of Policy 33b.
tion of solar and wind power and It said "Encourage the acceleration of uses
conservation measures cannot bind of solar and wind power etc." Policy 33b
agencies. is now placed in the non-regulatory cate-
gory as Policy 25.

124. Policy 31 refers to a function of This is an incorrect reading of the sen-
the State CZM office of "providing tence which only refers to studying the
for" electric energy development. provision of electric energy. The sen-
No such function or procedure has tence is not in the FETS.
been authorized by law.

125. The CZM policies do not discuss ade- The EFSO must consider such costs in its
quately the economic and environmental forecast and construction approvals as re-
costs associated with inland energy quired by statute. A more detailed des-
facility siting. cription of such costs would not be appro-
priate until specific costs were available
for consideration.

126. The impacts on other states of dis- This is not a requirement of CZMA.
couraging and systematically exclud-
ing energy facilities are not ade-
quately addressed.

127. The systematic exclusion of Outer Energy facilities are not discouraged by
Continental Shelf related on-shore the policies, since the policies and EFSC's
activities from AP~s and other large statutory obligations provide for a balanc-
areas of the coast and the bias ing of need, cost, and environmental impact.
against "non coastally dependent" Certain energy facilities will be excluded
components of such activities will in wetlands restricted under the Wetlands
cause socioeconomic impacts on Restriction Act, but this by no means ex-
Massachusetts and other states cludes them from the entire Massachusetts
which are not adequately discussed. coastal zone.

128. Alternatives to the energy policies See Part IV for a general discussion of
are not discussed. alternatives to the proposed action. It
is not a requirement of the CZNA to discuss
alternatives to each policy.

129. Energy facilities are uses of region- See response 66-5.
al benefit which may be unreasonably
restricted. 306

130. Effects on the CZN program of the The state retains authority over these
exclusion of several energy activities facilities with regard to siting, land
such as nuclear power plant radiation use, water use, pollution control, etc.
safety and hydroelectric and inter- The policies adequately address the is-
state gas transmission activities sues of state concern associated with
is ~~~~from state jurisdiction are not ad- these facilities.
dressed.

131. DEIS does not discuss exemption See footnote to Policy 8.
of smaller energy facilities from
EFSC' s jurisdiction

132. Discussion of Policy 33 in DEIS is See Policies 9 and 25 for revision.
inadequate.

133. The Title "private investment" is Correction has been noted in administra-
inaccurate (DEIS, p.11-28). tive record. The title does not appear in
the FEIS.

134. Alternatives to the policies in- See response 68-6.
adequately addressed.

135. The DEIS discussion of economic See general question 7.
activity is over-simplified, vague,
uninformed and naive. Tenor of dis-
cussion is not positive.

136. The alternative of designating This is not a requirement of the CZMA.
other state agencies to implement
the economic development policies
is not considered.

137. Effects of the plan's complexity This program adequately addresses the ef-
on small businessmen and its misuse fects on small businessmen and small busi-
by environmental interests to pre- nesswomen and on large business people as
vent development are not discussed. well. By promulgating regulations in ac-
cordance with CZM policies, a consistent
application of the policies will be en-
sured.

138. DEIS fails to consider whether ex- Existing state laws and regulations were
isting laws and regulations already examined in preparation of the MCZNP. See
unreasonably exclude uses of regional Chapter 9 for discussion of regional bene-
benef it. fit.

139. Yardsticks to judge the permissibility The policies provide sufficient specificity,
of uses in the coastal zone are not yet maintain some flexibility.
provided.

140. DEIS inadequately described effects See Chapter 5 for how the policies affect
of policies 10 and 21-23, 25-27 on development.
the amount of land designated as de-
velopable in the zone.

141. DEIS does not adequately address See general question 7.
negative economic impact on project
feasibility resulting from CZM pro-
cess such as legal exposure, collat-
eral, legal attack, and investor
insecurity.

142. Relationship of policies 14 and 15 to See revised wording of policies. Chapter I
policies 34-38 is vague in relation summarizes statewide concerns in the coast-
to what are developmentsof local con- al zone, while the National Interest
cern. Chapter 9 summarizes national and regional
concerns. All remaining concerns are thus
37considered to be local issues only.

143. The DEIS fails to adequately consider It is not required that the DEIS con-
the effects of the density constraints sider the impacts of all provisions of
in the state environmental code. all statutes to be used in implementa-
t ion.

144. There is a conflict between trans- The policies are intended to ensure access
portation investments for recreation to recreation resources on a scale which
access and the effects it will have the resources can support. MCZNP cannot
on developable land. This only en- prevent imposition of local growth con-
courages local growth control which trols.
then precludes improved access.

145. Impact *of Policy 27 is inadequately See Policy 13 f or revision. The Policy
described. Does this include poten- does not include "potential" areas only
tial areas? "existing public recreation beaches."

146. No discussion is included of how poli- See Chapter 5 for discussion of policies
cies 10, 21, 22, 23, 25, 26, and 27 significantly affecting developable land.
affect developable land.

147. DEIS fails to consider interaction See Chapter 10 for discussion of probable
of policies 34-38 with policies environmental, social and economic impacts.
10, 21-25 and 27 and the effects on
land values, development costs,
local revenue and tax base.

148. The effects on inland communities A discussion of probable impacts on inland
have been totally ignored. communities would be too speculative.

149. Won't the plan result in increased The policies are intended to provide a
no-growth restrictions? balanced approach for managing growth,
not stopping it. To the contrary, technical
assistance and grants to localities pro-
vided by CZH will be used to actively en-
courage development in those areas where
it can be best sustained.

150. There is no discussion of the Clean All development must conform to existing
Air Act Amendments of 1977 and their federal and state statutory requirements,
effect on the location of develop- as noted in Policy 10. Compliance with the
ment. Clean Air Act Amendments of 1977 may in
fact constrain further development in exist-
ing developed areas, depending on the type
of development proposal. A discussion of
various federal acts is not required.

151. What effect does CZM have on FNPCA See Policy 26.
Sections 303, 201, 208 and 404 proj-
ects not listed?

152. Policy 35 constrains development to The policy does not constrain development
only urban areas. to urban areas; it encourages assigning
highest priority to projects which meet
the needs of urban and community develop-
ment centers.

153. The program does not prevent in- CZM does not interfere with home rule per-
creased local restrictions on de- rogatives provided by enabling statutes.
velopment, etc.

154. The federal consistency provisions Application of federal consistency is limited
will enable CZM to dictate to muni- to certain policies of the program, as indi-
cipalities where all federally cated by an asterisk. Also see Chapter 9
funded projects should be located. (revised).

308

155. The anti-degradation policy of DUPC Agreed. Properly licensed municipal
is incorrectly stated. waste discharges and thermal effluent
discharges are permitted in anti-
degradation waters under existing regula-
tions. Correction has been noted in ad-
ministrative record.
156. There is a conflict in that land Development that does not require muni-
claimed to be "potentially develop- cipal sewage collection facilities would
able" is really excluded from de- not be excluded - e.g., housing with sub-
velopment if not within potential surface disposal systems or larger de-
sewer service areas. velopments with their own package treatment
plants or subsurface disposal systems.

157. Policy 34 is devoid of any informa- See Policy 10 for revision.
tion of the effects of local preroga-
tives in administration of Title V.

158. By requiring the 208 plans to be con- CZM and the 208 agencies have agreed to
sistent with the MCZMP, CZX has pre- ensure that their programs are mutually
empted the authority of the 208 consistent and have been reviewing each
agencies. other's work to ensure that such consistency
is attained. Section 307 of CZMA requires
all federal activities to be consistent with
the approved CZM program. This includes 208
and 201 plans and projects.

159. CZM has no authority to regulate or CZM policy in this area basically reflects
guide public transportation and sewer current state growth policy, EPA policy,
investments. transportation policy, and existing criteria
used by DWPC to prioritize and review 201
projects. The federal consistency provi-
sions of CZMA require MRA and DOT funded
projects to be consistent with the approved
state program.

160. The program will delay the EPA water See revised wording of Policy 26. The re-
clean up program and transportation quirement to amend/revise the plan for new
projects (p.11-29, DEIS). projects has been deleted.

161. The economic impacts of the infra- See Chapter 10. See general question 7.
structure policies are not ad-
dressed.

162. DEIS inadequately addresses the See revised wording of Policy 26.
three criteria for public infra-
structure consistency.

163. The plan cannot create in and of it- The policies have been reorganized into
self a self-contained enforcement regulatory and non-regulatory categories.
power by virtue of any policy's in-
clusion in the plan.

164. DEIS does not address the meaning See revised Policy 27.
of "providing" in Policy 36 (as in
providing Federal... .support").

165. What does "encourage" mean in The state cannot require federal, state, or
Policy 37 and what is the effect on local consistency with this policy. The
the CZM plan if such measures are program is still approvable without local
not locally adopted? adoption of this policy.

166. No authority exists for CZM to im- These policies have been combined into one
plement Policies 36-38. Further dis- policy, now Policy 27 which is intended to
cussion of impacts needed, "major be advisory only. Further discussion is
development" should be defined. added. Federal consistency will not be re-
quired. Major development is a project sub-
0 ~ ~~~~~~~~~~~~~~ject to MEPA.
309

167. The CZN plan provides unlimited legal The preamble to the policies and Chapter
exposure by virtue of the policies 21A regulations and the way the policies
and statements contained on pages have been reorganized minimize such possi-
39-305. The text of Policy 38 opens bility.
the possibility of MEPA being used
illegally.

168. The Executive Office of Environmental The Governor designated EOEA as the lead
Affairs has no authority over eco- agency to develop and implement the CZN
nomic development matters and should program. The intent of the general de-
not be involved in matters which are velopment policies is not to usurp authority
the responsibility of other state from other agencies more direclty involved
agencies. in growth planning and promotion of eco-
nomic development, but to ensure that EOEA
involvement in economic development acti-
vities involving the use of coastal resources
is consistent with statewide growth and eco-
nomic policies developed by agencies such as
Commerce and Development and OSP. In addi-
tion, Chapter 21A, Section 2(9) charges
EOEA to "promote the best usage of land,
water, and air to optimize and preserve en-
vironmental quality by encouraging and pro-
viding for, in cooperation with other ap-
propriate state agencies, planned indus-
trial, commercial, recreational and commu-
nity development."

169. CZM cannot be legally adopted or im- The program is implemented through existing
plemented through memoranda of under- statutes and regulations; the MOUs serve
standing. Nor can such memoranda as clarification. See the Attorney General
be deemed binding and enforceable memorandum and general question 1.
against private parties. EOEA does
not have statutory authority to
issue regulations.

170. The designation of "Critical Areas of See general question 1.
Concern" does not give EOEA any sub- I
stantive authority to impose restric-
tions on uses in such areas. The
resolution of conflicts power of EOEA
is devoid of substantive content.

171. EOEA has no automatic powers to re- "Federal consistency" stems from the federal
view all federal agency determina- CZN Act rather than state law.
tions of consistency with the state
CZM program.

172. MEPA discussion in the DEIS fails to The discussion has been clarified regarding
adequately address MEPA's inability the jurisdiction of MEPA. The use of MEPA
to accept or reject environmental is limited as an implementation method. In
impact reports or the projects and issuing their permits, however, agencies
permits to which the impact report are required by Section 61 to consider all
relates. environmental impacts.

173. Apparent conflicts existing among Policies in FEIS have been organized by
CZM policies. Twenty one of CZM's regulatory and non-regulatory. Purpose of
38 policies are unenforceable. "unenforceable" policies is to encourage
certain actions. CZMA requires techniques
for resolving conflicts; in terms of energy
facility siting conflicts, the EFSC is the
ultimate arbiter under Massachusetts law.

174. CZM plan does not adequately deline- See revised Chapters 4 and 6.
ate the scope of the authorities.

310

175. The validity of the policies is ques- The policies have been clarified re-
tioned since it is admitted that 21 garding their regulatory nature. See Attorney
of the 38 policies are unenforceable General'smemorandum opinion in Appendix H
and some of these policies, 1,2, and 8 regarding enforceabilities. See general
establishing a system of permitted response 3 regarding EFSC. The EFSC can-
uses in large areas of the coastal not override Wetlands Restrictions.
zone, conflict with policies 25-33
which acknowledge the power of the
EFSC to override such restrictions.

176. It is poor management practice to During the first year of program implementa-
leave the scope of each agency's tion regulations will be promulgated for
authority to implement CZM policies each agency; however, they are not needed
for resolution on a case-by-case prior to program approval. See general
basis. question 2.

177. CZM implementation will lead to con- Implementation will be clearer because all
flicts among EOEA agencies, delays in agencies will use the policies as their
permit reviews and further delays due starting point. See general question 5 for
to litigation due to inconsistencies more information.
of regulatory action under the 40 or
more Massachusetts statutes.

178. The CZM plan fails to adequately con- See general question 3.
sider the negative impacts to the na-
tional interest in planning for and
siting of energy facilities in the
coastal zone.

179. The DEIS fails to describe or con- The 21A regulation no longer incorporates
sider the impacts of the Secretary's the entire 800 page plan, only Chapter 4.
regulation on existing regulatory
programs; specifically adopting
the entire 800 page plan by reference
as state environmental policy and re-
* ~~~~quiring consistency.

180. The Secretary of Environmental Af- The Secretary will act only as a mediator
fairs is not authorized to override when conflicts among agencies arise.
individual EOEA permit statutes.

181. The alleged authority of the Secre- The Secretary's promulgation authority is
tary to promulgate the CZM plan as a also based on G.L. c. 21A, S2. The word-
binding regulation is principally ing stating the entire plan as a binding
based on the provisions of G.L. c. regulation has been deleted.
21A S 3&4.

182. The power of "comprehensive plan- The office is defined by statute, G.L. c.
ning" is clearly confined to the 21A, SI to mean the Executive Office of
functions of the Office of the Sec- Environmental Affairs, i.e., all the agen-
retary itself. cies, not just the Office of the Secretary.

183. Neither the Office of the Secretary The authority to control any land and water
nor any agency within the EOEA has the uses results indirectly from existing sta-
power to establish land use or energy- tutory authority particularly permitting
siting controls through a system of authority over coastal wetlands under the
permissible or priority uses. Sec- Wetlands Protection Act and tidelands under
retarial power is limited to "coordi- Chapter 91 and the Ocean Sanctuaries Act
nation" of "administrative" and and Restricting Authority under the Restric-
"jurisdictional" conflicts and line tion Program.
agencies are limited to programs
within their own jurisdiction only.

311

184. To the extent that the CZM land-use Federal agencies must only be consistent
and energy policies are advisory with the asterisked policies. Energy poli-
and unenforceable under Massachu- cies are enforceable.
setts law, these policies are not
binding on federal agencies in issu-
ing federal permits or grants, yet
the DEIS assumes the enforceability
of many of these policies (p.11.7).

185. The incorporation of the entire CZM Incorporation of the entire plan by refer-
plan by reference as a regulation of ence language has been deleted.
EOEA is unconstitutionally vague given
the standards for clarity and preci-
sion of applicable regulations.

186. Items such as "statements by the gov- Gubernatorial and Secretariat orders, like
ernor" or "statements of environmental Executive Orders issued by the President, ap-
policy promulgated by the Secretary of ply primarily to internal agency operations
EOEA by secretarial order" cannot be and are not binding on private parties. In
incorporated into regulations without situations where Chapter 30A requires pro-
specific references to the statements mulgation of regulations, public notice
or orders being incorporated. Nor will be provided.
without a rulemaking proceeding under
G.L. C 20A providing public notice of
what is being adopted.

187. Not possible to address comments to Draft 21A regulations have been available
significant aspects of the CZM plan for one year and comments have been strongly
if implementing regulations are not solicited. A final hearing was held prior
formally proposed before program ap- to adoption. (See general question 2 for
proval. more information.)

188. Questions the authority of the Sec- See response 68-180.
retary under the conflict resolution
procedure to interfere in or direct
the result to be reached in a permit
proceeding by a line agency on grounds
that the line agency purports to act
inconsistently with the CZM plan.

189. DEIS fails to reflect that MOU's, un- March 77 Draft Plan states at page 319 that
less publicly promulgated as regula- MOU's are not enforceable but serve to
tions under G.L. c. 30A S4, are unen- trigger the joint implementation section
forceable. and to grant standing in agency proceedings.

190. State CZM may not intervene as a Massachusetts G.L. c. 30A, S1(3) permits
party, appear as an expert witness or intervention in agency proceedings by any
comment on the merits of EOEA actions. other person "allowed by the agency to
intervene as a party." The MOU's formally
allow CZM to make such an intervention.

191. Appearances by the Secretary in adju- See Attorney General's memorandum opinion.
dicatory proceedings before the EOEA
commissioners or departments could only
be interpreted as a direction of the
outcome of the case; particularly in-
appropriate in the case of energy
facilities since the Secretary is a
voting member of the EFSC.

192. The Secretary's regulation (in 6.31) See Attorney General's memorandum opinion.
presents a conflict in permitting the
MOCZM to appeal decisions of other
EOEA agencies in the courts.

312 I

193. The DEIS inadequately describes the Negative impacts are not expected. See
negative impacts of the proposed general question 7 with respect to eco-
M'OU with the EFSC. nomic impacts.

194. The CZM plan itself will not consti- 21A regulations will be adopted before
tute a regulation adopted by a state federal approval.
agency at the time of federal ap-
proval; therefore no statutory auth-
ority exists upon which the provi-
sions in the MOU with EFSC can be
based.

195. Under G.L. Chapter 21A, Section 2, See response 66-3.
the Secretary of Environmental Af-
fairs is not empowered to establish
substantive policies.

196. The Secretary's authority to adopt The Secretary will work to coordinate with
policy must be limited to environ- agencies outside of EOEA and those agencies
mental protection policies. Other where MOU's have not been established.
agencies of the state are charged
with responsibility for health and
resource use and development poli-
cies.

197. The Governor's approval does not add The promulgation by regulation by the
to the legal status of regulation; his Secretary of the State environmental policy
approval does not make the CZM plan for the coastal zone triggers the consist-
a constitution, statute or duly adopted ency section in the EFSC's legislation.
rule or regulation as required by rule The EFSC has recognized these policies in
62.9(3) of the Council's regulations. its MOU.

198. The MOU (and the DEIS) neglects to The MOU clearly states that it does not
take into account the Siting eliminate other existing statutory duties
Council's statutory obligation. of each agency.

199. The Secretary of EOEA cannot presume Several of the Secretary's Section 2 powers
that she has the authority under allow her to make recommendations concerning
G.L. Chapter 21A, Section 2 to set such matters.
policies for matters unrelated to
environmental protection.

200. The MOU requirement for the EFSC to See general question 3.
act consistently with the CZM Plan
is beyond the Council's authority.
Administrative agencies may not
alter by regulation or agreement the
statutory standard under which it de-
cides cases.

201. The MOU between EOEA and EFSC in para- For coastally dependent facilities one al-
graph 3 of the responsibilities section ternative coastal site will be evaluated.
states that the Council will adopt For non-coastally dependent facilities,
regulations requiring the considera- two alternative sites, one of which is in-
tion of at least one inland site for land, will be evaluated. This has been
coastal energy facilities in accord- clarified under Policy 8.
ance with the CZM plan. A similar
statement on p. 11-48 of the DEIS is
unclear.

202. Evaluation of inland alternatives The Council will evaluate the alternative
will make the entire state subject inland sites.
to review under CZM plan.
313

203. The State CZM office is organized General principles pertaining to judicial
as a branch of the Secretary of impartiality do not necessarily apply to
Environmental Affairs. It would all administrative agency hearings. Pur-
violate ethical principles ap- suant to the principles of exhaustion of
plicable to judicial officials to administrative remedies, superior admin-
permit personnel within the Secre- istrative officers frequently decide appeals
tary's office to intervene as of matters in which their subordinates have
parties, or otherwise appear as ad- participated as long as they have only a
vocates, before the body on which policy and not a personal or pecuniary in-
she sits as a voting member decid- terest in the matter.
ing cases.

204. The M0U makes a distinction as to This comment is unclear. The EFSC's over-
such areas which have been re- ride authority does not apply to wetlands
stricted under the Wetlands Re- restrictions orders placed on deeds.
striction Act, G.L. Chapter 130,
Section 105, and those which have
been designated but not restricted.

205. "The Energy Facilities Siting Coun- "Prime consideration" serves as a very high
cil" cannot give prime consideration presumption of environmental impact in such
to environmental impacts in particu- areas but can be outweighed by other fac-
lar areas at the expense of consider- tors in the balancing process.
ation of the need for power and cost
impacts.

206. The Siting Council is able to override See general question 3 and memorandum.
provisions of the CZM plan, as well as The Council can override EOEA. This process
decisions of EOEA agencies made on the is fully described in Policy 8 and Chapter
basis of EOEA interpretation of the 9.
CZM plan.

207. The CZM plan and its policies are to Not true. See general question 3.
be considered to be only advisory in
nature by the Siting Council.

208. The DEIS should consider alternatives Evaluation of alternatives is made on the
to the Memorandum of Understanding basis of alternatives to whole program.
with the Siting Council.

209. The proposed MOU with the Martha's There is no MOU with the Martha's Vineyard
Vineyard Commission should be avail- Commission. The contract between CZM and
able for comment. the Martha's Vineyard Commission, for in-
terim services prior to program approval,
serves as the current basis for coordina-
tion. The 306 contract will be developed
when program approval is imminent and the
contract will be reviewed through the A-95
process.

210. The type of "public participation" Business interests were consciously sought
used to date in preparing the CZM in forming the Governor's Task Force and
plan has not provided adequate op- Local Citizen Advisory Committees. Sev-
portunities for participation not eral of the organizations making these
only for the business community comments were members of the Task Force.
but also to the Massachusetts legis- See general question 9.
lature.

211. The federal annual review procedure This will be handled by the future advisory
should include specific detailed groups, see sections 5.8 and 5.9 of the 21A
mechanisms for all interested draft regulation.
Massachusetts citizens to partici-
pate.

212. Chapter 5 misstates the power which The plan does not deny the influence which
this plan will have over local de- state actions have over local actions. This
velopment decisions. action has, however, been clarified with
regard to federal consistency jurisdiction.
314

213. Of the projects available for funding Purpose of technical and financial assist-
under the plan, the bias in the poli- ance is to promote certain actions by lo-
cies toward environmental concerns cal governments. Criteria for project
predispose how financial assistance selection is presented in Chapter 8 and, if
will be allocated. there is a bias, it is towards harbor de-
velopment.

214. How can the DEIS suggest on page State authorities and activities that are
11-51 that local communities know relevant to CZM are already in existence
the extent of state activities? and known to local communities.

215. The Citizen advisory councils are See general question 9.
not described.

216. In the discussion of effects on lo- See general question 7.
cal communities, there is no mention
of economic effects.

217. The Overview section must include a Program funding is discussed in Chapter 8.
discussion of program funding. Local
funding criteria and priorities should
be presented.

218. The reference (p. 366, March draft of A consistency certification is only for
the CZM plan) should reflect the fact federally funded projects, direct federal
that Section 7.11 of the draft regu- actions, and federal permitting and li-
lation requires a consistency certi- censing activities.
ficate only for federal actions, or is
it the intent to certify all projects?
What about developments of local con-
cern, will they require certification
as well?

219. How will technical assistance affect Technical assistance will have a positive
local communities? impact on local communities. See Chapter 8.

220. The DEIS also fails to take cognizance Financial assistance is for planning, not
of the inherent delays in the Massa- construction costs. Renewals may be sought.
chusetts permitting process by limit- CZM funding is on an annual basis.
ing the maximum time period for
funded projects to one year.

221. The DEIS on page 11-56 incorrectly The Council receives information on inter-
states that interstate gas facilities state gas facilities.
are reviewed by the Energy Facilities
Siting Council.

222. The DEIS fails to describe how mari- The ombudsman/advocate role of CZM before
time shipping is given high priority. other funding agencies is an affirmative
means to promote shipping.

223. "A problem arises where these CZM pol- Close coordination of 208 plans and 201
icies may conflict with planning de- grants is occurring to resolve conflicts.
terminations under P.L. 92-500 MCZM is currently reviewing 208 plans to
S. 208." What about future treat- determine where they are consistent with
ment plant proposals, will they re- CZM goals and objectives. Future treat-
quire amendments to the MCZMF? ment plants will have to be consistent
but will not require an amendment to the
program as was described in the DEIS.

224. The plan is of statewide importance, Non-coastal residents served in the sub-
but there was no attempt to include committees of the Governor's Task Force.
citizens or interested groups from
non-coastal communities.
315

225. The DEIS should explain the degree Chapter 7 addresses the amount of public
to which local citizen groups were input there was on all aspects of the MCZMP.
consulted on the basic policies--
did they merely identify specific
problems in local areas?

226. It should be acknowledged that the We concur that public hearings are import-
public hearing process is of prime ant. The final 21A regulations are in-
importance. Adequate comment is im- corporated in the FEIS.
possible because of the absence of
regulations.

227. Are there new laws, standards and There are no new laws proposed under the
regulations that are administered MCZMP.
differently or is the CZM plan a
mere restatement of existing laws,
standards and regulations?

228. The DEIS fails to identify the sta- See revised Section 6.6.
tutory reference for much of the
program.

229. The DEIS attempts to summarize the The EIS is a programmatic response to im-
environmental impacts. However it pacts, i.e., it defines impacts of the
fails to accomplish this goal... overall program, not of hypothetical proj-
what and where are the impacts? ects as influenced by MCZMP policies.

230. What state law allows or prohibits MEPA, G.L. 30, S. 61-62 permits evaluation
actions near historic sites? of impacts on historic and recreation sites.
See Attorney General's memorandum opinion
in Appendix H.

231. The preamble paragraph on p.III-8 New statutes are not needed. The purpose
suggests that existing laws will be of the MCZMP is to coordinate programs,
intensified, and, under CZM, they increase staff support and make EOEA regu-
will be implemented differently. lations consistent. The word"intensified"
How is this in concert with state- has been deleted.
ments that no new laws will be
created?

232. The DEIS on page III-9 inaccurately The Protection Act is a case-by-case evalu-
describes the relationship between ation, the Restriction program is designed
the Restriction Act and the Protec- to provide long-term protection before
tion Act... the legislature enacted specific development proposals are made.
two laws for two degrees of areas.

233. In view of the requirement for State match for CZM funds is 20%. No staff
matching state funds, the DEIS does or funds will be removed from inland
not describe any effect on inland areas because of increased effort in
programs resulting from a priority coastal areas.
use of state funds for coastal com-
munities.

234. The DEIS is very deficient in its The courts determine whether there has been
analysis of the effects of the re- a taking. Nearly all of the 40 suits are on
striction programs. In particular inland restrictions.
it does not indicate that approxi-
mately forty suits are pending in
Superior Court concerning Wetlands
Restriction.

235. Where in the Wetland Protection Act The existing regulations provide for juris-
did the Legislature give local commis- diction within 100 feet of the 100 year
sions authority over areas 100 feet flood line.
from the 100 year floodplain?

316

236. The Wetlands Protection Act is project Distinctions between the two wetlands
specific, not site specific and does acts have been clarified in the revised
not permit regulations to be promul- wording of Policy 1.
gated that effectively create per-
mitted and prohibited uses.

237. There is no discussion in the DEIS The March Draft MCZMP states, on p. 177,
of irrevocable permits issued by that CZM will actively support legisla-
the legislature. tion granting irrevocable licenses for
consistent projects. The legislature is
not bound to pass such bills, however.

238. The Massachusetts G.L. Chapter 30, Section 62 of MEPA sets out the procedures
Section 62, MEPA impact report pro- for fulfilling the substantive duties of
cedure is not a regulatory permit Section 61.
process. It is a disclosure law.

239. DEIS admits there are gaps in his- This has been incorporated in the adami-
toric site protection. Why isn't istrative record.
this discussed in the March Draft
MCZMP?

240. The legal status of APR designation CZMA regulations only call for a process
is in doubt. Serirus questions have for designation. Consult Attorney
been raised as to The authority for General's memorandum opinion in Appendix.
such designation and the scope of
its effects.

241. Is EOEA in control of the Mass No. There is an MOUJ between the Secre-
Transportation Department? taries of EOTC and EOEA to establish re-
view and federal consistency procedures
for transportation projects. See MOU in
Appendix.

242. The Secretary doesn't have ade- See general question 1.
quate authorities to implement
the program.

243. All regulations should be in place See general question 2.
before program approval.

244. The large upland areas within the The Cape Cod citizen advisory committee
coastal zone should be reduced, voted twice to include the entire Cape
particularly on Cape Cod. within the coastal zone. (See general
question 4.)

245. Are the maps binding as part of The maps are policy guidelines outlining
the CZM Plan? future state actions. The maps will be
used in considering state investment de-
cisions.

246. We point out that the August 23, The August 23, 1977 Memorandum is a fuller
1977 Memorandum being an unsigned explanation of the EFSC siting process;
position paper of the Secretary's it will not be part of a regulation.
office, has no legal status as
part of the CZM plan.

247. on page 1, the Memorandum states See general question 3.
that the CZM program will evaluate
energy facilities as it would any
facilities, with consideration of
opportunities for visual enhance-
ment, impacts on recreational op-
portunities, water dependency,
etc. This statement does not take
into account the prime role of the
Energy Facilities Siting Council
is ~~~with respect to Energy Facilities.
Are Policies 1-27 binding on the
EFSC? 317

248. With respect to items (1) Items 1-4 discuss how the EFSC procedures
through (4) on pages 3-4 of the and the CZM policies interrelate.
Appendix, the Memorandum assumes
that many substantive and proce-
dural regulations are already in
place.

249. We disagree particularly with the Comment is incorrect.
first unnumbered paragraph of the
Memorandum, since the EFSC may
under its enabling legislation
override any denial, condition or
disapproval ... including wetlands
restrictive orders.

250. The memorandum on p.5 assumes... The draft regulation, published in Appen-
that a secretarial regulation dix G to the plan, has been available for
under G.L. C.21A, will be in place review for more than six months. The
prior to program approval... Such final regulations are included in the
a regulation, formally available FEIS.
for public comment, should be part
of the DEIS review procedure in
order to provide for meaningful
public participation.

251. On p.6 the Memorandum fails to take The council can evaluate alternatives.
into consideration that the concept Waterways is the chief EOEA authority imn-
of coastal dependency is absent plementing this policy and access for
from-the siting council's enabling navigation is clearly a part of the public
legislation, and also from the en- trust of the tidelands.
abling legislation of the EOEA per-
mitting agencies.

318

Chamber of Commerce et al Appendices:

Five of these Appendices (A-D and unlettered) consist of legal memorandum, all of which, as
stated by the Chamber's letter of December 13, 1977, were prepared prior to the DEIS. These
were included (incorporated in their entirety) because, purportedly, "the concerns addressed
thereon (sic) have not been adequately resolved in the program of the DEIS."

One of these, "Existing Institutional Capacity for the Management of Resources and Growth in
the Massachusetts Coastal Zone," dated July 1, 1975, by Alan H. Kaufman, Esq., was prepared
over two and a half years ago for the Massachusetts Office of CZM during the preliminary
stages of program development. It is 154 pages in length and raises innumerable, detailed
issues, major and minor, most of which were fully addressed during program development, par-
ticularly by the 264 page report prepared by Dean David Rice, "Legal Authorities for the
Implementation of the Massachusetts Coastal Zone Management Program," in Appendix D of the
March Volume I Draft.

It seems unlikely that the comments consider every issue raised by the Kaufman report still
unresolved and in the absence of further clarification, it is assumed that the issues they
do consider unresolved are essentially the same as the major issues raised by three legal
memoranda dated April and May 1977 and repeated in the draft legal commentary on the program
dated October 17, 1977. These three legal memoranda also predate the DEIS and again it
seems probable that many of the concerns have been resolved (see particularly EOEA response
to October 17 document, dated October 25, 1977), but the following appear to be the major
comments.

1. The boundary is too extensive. See general question 4.

2. The Secretary does not 'have the authority See general question I-
to adopt and implement the CZM Program
under Chapter 21A.

3. Neither the Secretary nor any constituent Comment was based on misreading of prior
EOEA agency has the power to adopt pre- draft program. Program never attempted to
determined use restrictions pursuant to adopt such restrictions. Point was clari-
the Wetlands Protection Act. fied in DEIS (see Policyl) and is further
clarified in FEIS.

4. The policies of the program are not bind- This is the same comment as that made by
ing upon the EFSC. Chamber earlier throughout their comments.
See general question 3.

Appendix E consists of a letter from John I. Kearney to Michael Shapiro dated October 28,
1977 commenting on OCZM's federal consistency regulations.

Appendix F consists of an undated letter from Robert Knecht of OCZ14 to lion. George Rodgers
thanking him for his interest in the program and confirming the timetable for DEIS comments.
Contrary to the assertion on page 12 of the Chamber et al letter, it does not indicate
program approval prior to completion of the full NE~PA/MEPA process.

How the EFSC procedures satisfy the requirements of Section 305(b)(8) is specifically ad-
dressed in the EOEA Memorandum of August 23, 1977 found in the DEIS. This memorandum
also discusses the relationship of this requirement to the national interest, which is fur-
ther described in Chapter 9 of this document.

The EFSC's process provides for full consideration of the national interest in the siting
of any facility in the coastal zone in accordance with the procedures established by the
MGLA Ch. 164 (see response below). The CZMA does not require the type of affirmative
commitment to site energy facilities in the national interest in the coastal zone as sug-
gested by the commentator.
319

Comment Response
69. New England Regional Commission
1. The program is negative on encour- Program does so; see Policies 7,
aging economic growth; should be 8, 20, 27.
positive inducement to economic
development in coastal zone.

2. Program doesn't provide for coordina- The New England States and New York
tion on interstate coastal zone have formed the Interstate CZM
management issues. Task Force, operating under the
New England River Basins Commission.
Where possible, issues of an inter-
state nature have been given con-
sideration. Coordination is ex-
pected to continue during implemen-
tation. See letters in Appendix C.

3. Concern about authority to implement See general question (1).
program.

4. Program should pre-select sites for EFSC evaluates energy facilities
energy facilities. on the basis of need, supply, and
environmental impact; under cur-
rent procedures, EFSC doesn't
direct applicants to site facilities
on preselected sites, but weighs
alternative sites proposed by ap-
plicants. Further, EFSC appeal
process designed to ensure that
once applicant's proposed site is
approved by EFSC, other State
and local regulation isn't unduly
burdensome or capricious.

5. Ocean Sanctuaries Acts prohibit con- While Ocean Sanctuaries Acts do
struction of OCS oil or gas pipelines prohibit placement of permanent
by shortest route from Georges Bank structures on seabed or subsoil,
to Cape Cod, thereby handicapping Acts do allow for projects licensed
Georges Bank OCS development or under MGLA Chap. 91, such as pipe-
forcing use of environmentally more lines, under certain circumstances.
dangerous tankers. Specifically, an oil or gas pipe-
line could cross an ocean sanctuary,
provided it's of public necessity
and convenience and doesn't seri-
ously alter or otherwise endanger
the ecology or the appearance
of the ocean, the seabed, or sub-
soil thereof in the Cape Cod
National Seashore.

70. Gilbert S. Tower, Cohasset
1. Recommends that a chapter on salt A description of salt marshes and
marshes be added to MCZMP. their ecological significance is
included in the Marine Environment
section of the March 1977 draft
MCZMP and in Section 3.1 of the
FEIS.

2. Proposes amendment of the Coastal The Coastal Wetlands Restriction
Wetlands Restriction Act (Chapter Act is an important part of CZM
130, Section 105) to provide for implementation. CZM is opposed to
for various types of development any amendments that will weaken
in coastal wetlands. this Act. Model restriction order
(Policy 1, Section 3.1) specifies
permissible development.

3. The MCZMP violates home rule. See general question 10.

320

Comments Response
70. Gilbert S. Tower. Cohasset (cont.)
4. Identifies need for "some kind Citizen Advisory Councils are
of oversight legislation" in order being formed to ensure continued
to incorporate citizen input through regular input to MCZMP (see
legislative representation. Section 6.7 and general question
is The MCZMP doesn't pre-
clude new legislation if citizens
and their representatives find it
desirable. If legislation were
passed, the MCZMP would probably
be amended to reflect new law.
(See general question S for
more information on amendments to
MCZMP.)

71. Jeanne T. Gormley, Cohasset
1. Recommends that all laws of the Common- Massachusetts General Laws esta-
wealth be studied and amended to clarify blish the property rights of owners.
the property rights of owners, especially MGLA C. 184, S. 31, the Conserva-
MGLA C. 184, S. 31. tion and Preservation Restrictions
Act, establishes that the holder
of a conservation restriction can
either be a governmental body or
charitable organization.

72. Edward Sanchez, South Dartmouth
1. Opposes implementation of CZM by the Of the options available under the
Commonwealth and prefers local imple- CZMA (P.L. 92-583), Massachusetts
mentation. Perceives CZM as an un- chose state and local authorities
necessary bureaucracy. Unsure of who to implement the program. State
will be responsible for CZM implementa- authority rests with departments,
tion, the Office of Environmental Affairs divisions and offices of EOEA and
or the Board of Coastal Resources. with the EFSC. Relying solely on
local implementation, without
mandatory state standards, would
not satisfy requirements of the
CZMA regarding national and re-
gional interests. The EOEA will
be the lead agency.

2. Identifies need for "some kind of over- Citizen Advisory Councils are
sight legislation" in order to incor- being formed to ensure regular,
porate citizen input through legis- continued input to MCZMP (see
lation representation. Section 6.7 and general question
1). The MCZMP does not preclude
new legislation if citizens and
their representatives find it
desirable. If legislation were
passed, the MCZMP would probably
be amended to reflect new law.
(See general question 8 for more
information on amendment to MCZMP).

73. Charles L. Soares, Swansea
Expresses strong support for CZM as No response necessary.
a program that balances economic and
environmental needs.

74. Petition from 43 Residents of Somerset, Swansea, and Fall River
Opposes CZM because it would reduce No response necessary.
home rule authority.
321

Comments Response
75. Gregg Robinson, Buzzards Bay
1. Opposes CZM because it infringes See general question 10.
on home rule.

2. Opposes the process of "networking" See general question 5 and 10.
because it adds additional bureau-
cracy to state government.

3. Opposes CZM because it fails to The program has policies to expand
balance economic and environmental economic interests with least
concerns. environmental damage.

76. Thomas Lynch. State Representative First Barnstable District
1. Raised concerns about discrepancies A joint legislative/executive/
in scope and application of C. 21A public review committee has been
to implement plan. formed to review regulations
promulgated under C. 21A.

2. Expresses support for MCZMP.

77. Representative David Lane, Essex
Requests that an operating gravel pit The boundary for the APR is a pro-
in Essex be excluded from the pro- posed one based on the 100-year
posed APR because Policy 2 would pro- floodline. A final APR boundary
hibit dredging and would give priority will be addressed at the public
to restricting the land pursuant to the hearing on the actual designation
Wetlands Restriction Act. by the Secretary of Environmental
Affairs. Policy 2 has also been
changed to clarify that APR desig-
nation doesn't prohibit or elimi-
nate existing uses. Policy 2
states that in APR's the Coastal
Wetlands Restriction Program will
apply on a priority basis to salt
marshes, shellfish beds and beaches.
However, if an area has received
a formal exemption in the past
from the Restriction Program, that
exemption will be honored.

78. Peter McDowell. State Representative. Fourth Barnstable District
1. Requests delay of program approval until The Attorney General has clari-
the legislature authorizes the Secre- fied the scope and authority vested
tary of EOEA to implement MCZNP. in the Secretary of EOEA by C.21A.
Chapter 21A permits the Secretary
to implement the MCZMP without
further legislation.

2. Secretary of Environmental Affairs See general question 1 and Attorney
doesn't have authority to issue sub- General's memorandum opinion.
stantial regulations on land use plan-
ning, or energy policies, or to create
a new office; i.e., Office of CZM.

3. Eminent domain authority is not vested The Final C.21A regulation lists
in any EOEA agency as could be con- EOEA agencies with eminent domain
strued in draft C.21A regulation power.
(March 77 draft MCZMP, p. a-50,
6.64 �d))..

4. Authority to purchase land isn't vested The final C.21A regulation lists
in any EOEA agency as could be construed EOEA agencies with authority to
in draft C.21A regulation (March 77 draft purchase land.
MCZMP, p. a-50, 6.64(e)).
322

Comments Response
78. Econt.)
5. The draft C21A regulation illegally See Attorney General memorandum in
gives CZM the right to appeal to the Appendix H.
courts from any decision rendered by
an EOEA agency.

79. John F. Aylmer, State Senator, Cape and Islands District
Supports MCZMP except inclusion The entire Cape within the coastal
of mid-Cape area bounded by Route 6 zone. (See general question 4 for
and Route 28. more information.)

80. Brenda Boleyn, Brewster
Expresses support for MCZMP and for in- The entire Cape is within the
clusion of all Cape Cod with the bound- coastal zone (see general question
dary. 4 for more information).

81. William O'Connell, Quincy
Expresses support for MCZMP. No response necessary.

82. Ralph H. Goodno, Danvers
Expresses support for MCZMP. No response necessary.

83. Grace Saphir. East Sandwich
1. Why had the MCZMP been given Federal The DEIS stated that the Federal
acceptance before the public hearings Office of Coastal Zone Management
were held? believed the plan was acceptable,
but final approval will not be
given until the public has had the oppor-
tunity to comment for 30 days on
this FEIS.

2. The MCZMP says no new agency will be The EFSC was established by statute
established to administer the program; prior to the development of the
yet the MCZMP Addendum states an Energy MCZMP.
Facilities Siting Council has been estab-
lished.

3. The MCZMP will infringe on home rule. See general question 10.

4. Aren't the chief interests of CZM off- Offshore mining and energy facility
shore sand and gravel mining and energy siting are only two of many CZM
facility siting? concerns. The MCZMP attempts to
address various concerns with equal
emphasis.

5. Why is it necessary for the boundary See general question 4.
to extend inland one-half mile?

84. Massachusetts Lt. Governor Thomas P. O'Neill, III
Expresses full support for the MCZMP No response necessary.
with emphasis on potential benefits
to Massachusetts economy.

85. Jean Foley, Pembroke
Fully endorses the MCZMP and designa- No response necessary.
tion of the North River as an Area
for Preservation or Restoration.

86. William H. McCarty. Swampscott
Fully endorses the MCZMP, emphasizing No response necessary.
that the plan shouldn't be weakened
before implementation.

87. George Lane, Harwich
Endorses the MCZMP including the full The entire Cape is within the
inclusion of Cape Cod within the coastal zone. (See general ques-
coastal zone tion 4 for more info.)

323

Comments Response
88. Dr. Thomas Leschine, Falmouth
Expresses support for the MCZMP, See general question 3.
while raising general concerns
in evaluating the program. Speci-
fically, does CZM have the authority
to assure that energy development won't
preclude fulfilling other CZM goals?

89. Dr. Judith Spiller, Falmouth
Expresses support for inclusion of The entire Cape is within the
entire Cape Cod within the CZM coastal zone.
boundary.

90. Dr. Arnold Lum, Falmouth
1. Protection under the APR designation A rocky intertidal shore or other
should be expanded to include other natural area can be nominated for
habitats (i.e., rocky intertidal designation as a Critical Environ-
shore) which don't meet the five mental Area pursuant to the
criteria for "high natural pro- Secretary's authority under G.L.
ductivity." C.21A s. 2(7). However, the
criteria for designation of APR's
were designed to give priority to
large complexes (i.e., estuaries)
which were the most threatened
by improper use and could be pro-
tected using existing laws.

2. Policy 2 should establish as one of its The CZM Act requires that there be
goals interstate coordination for pre- interstate coordination of CZM
serving natural features. plans. The New England states,
through the New York/New England
Coastal Zone Task Force, fund a
full-time liaison at the New
England River Basins Commission
to facilitate coordination and
exchange of information. Also see
letters Appendix 0.

3. There should be a policy supporting Because of the implications of
nomination of APR's as Federal estuarine estuarine sanctuaries designation
sanctuaries or at least an explanation (restriction of use to scientific
of the estuarine sanctuaries program research), CZM has not recommended
should be given. at this time designation of any
areas in Massachusetts.

4. The MCZMP doesn't-mention the state's There is no official state policy
policy on the Federal Marine Sanctuaries regarding Marine Sanctuaries. MCZM
Program and its potential. has worked with Congressmen and
state and Federal offices on pro-
posed marine sanctuaries; the
MCZMP could be revised to incor-
porate such recommendations.

91. A. Dix Leeson, Jr., Cambridge
Expresses support for the MCZMP. No response necessary.

92. Susan Nvstedt, Marblehead
Expresses support for the MCZMP. No response necessary.

93. Fred Bauer. Marblehead
Expresses support for the MCZMP. No response necessary.

94. Rep. James E. Smith, State Representative. Lynn
Expresses support for the MCZMP. No response necessary.

95. Helen Sayers, Boston
Expresses support for the MCZMP. No response necessary.

324

Comments Response
96. Dr. Christopher Martin, Gloucester
Expresses support for the MCZMP. No response necessary.

97. Kenneth Robinson, Boston
1. Expresses support for the MCZMP. No response necessary.

2. Questions how plan will apply to The regulatory control supporting
any activity when no state permit CZM policies is exercised through
is required. the state permit process. CZM
planning has determined that the
existing permit process protects
state interests and that where no
permit is required, no significant
state interest is involved. If
only local permits are required,
CZM policies may be considered
if towns choose to incorporate
CZM guidelines into their by-laws.

3. Questions whether real inland alter- Only applications for energy
natives exist for certain energy facilities considered to be non-
facilities requiring deep water. coastally dependent will be re-
quired to provide an alternative
inland site (i.e., certain types
of gas facilities, oil tank farms,
electric generating facilities,
refineries).

4. Questions where final approval of siting The EFSC has ultimate authority
LNG facilities lies--with the EFSC or to issue permits for the siting of
the Federal Government, (FPC, Coast gas facilities.
Guard, OPSO).

98. Mary Hood Hagler, Dennis
1. Expresses strong support for CZM No response necessary.
policies and CZM's recognition of
home rule prerogatives.

2. Endorses Policy 13 and CZM's concern for No response necessary.
visual environment.

99. Nancy and George Jackson, Stonington, Connecticut
Express concern for overuse of CZM has recommended the beaches
Duxbury and Saquish Beaches and and surrounding salt marshes be
the Gurnet, all ecologically designated an Area for Preservation
fragile. or Restoration (see Policies I and
2).

100. Richard Preston. Hamilton
Expresses support for MCZMP, par- No response necessary.
ticularly in the ways it'll en-
courage a balanced use of the
coast.

101. Montaup Electric Company
1. The boundary for Somerset includes See general question 4.
lands which won't affect the coastal
zone.

2. The Secretary of Environmental Affairs See general question 1.
will have veto power over all major
developments in the coastal zone.

3. The plan interferes with the functions See general question 3.
of the Energy Facilities Siting
Council.

325

Comments Response
101. (cont.)
4. Policies 1, 2, 8, 17, and 31 should A goal of the program is to en-
be redrawn to permit orderly develop- courage such orderly development
ment of power plants. by supporting industrial use of
the coastline in ports where in-
frastructure and services exists
which helps to ensure protec-
tion of other areas of the coast
which are ecologically fragile and
valuable.

102. Howard Whiteside. Wareham
Opposes unlimited access to Stoney Limited public access remains a
Point Dike. priority for Stoney Point Dike.
A site specific plan will be de-
veloped with the assistance of
the town prior to any development.
The site plan will respect the
fragile and productive nature of
the resource.

103. Landowners Association of Indian Neck, Wareham
Oppose public access to Long Beach. Because of opposition by the Board
of Selectmen, Board of Health,
Planning Board, Marine Resource,
Commission, and others in the com-
munity, the reference to Long Beach
in the Coastal Atlas has been
withdrawn.

104. U.S.S. Massachusetts Memorial Committee, Inc.
Expresses support for the MCZNP No response necessary.

105. League of Women Voters of Buzzards Bay
Expresses support for the MCZMP. No response necessary.

106. Lower Cape Cod League of Women Voters (speaking for Leagues of
Lower Cape, Falmouth, and Martha's Vineyard
Express support for MCZM4P and for in- The entire Cape is within the
clusion of all of Cape Cod within the boundary.
coastal zone.

107. Association for the Preservation of Cape Cod
1. Expresses support for the MCZMP, es- No response necessary.
pecially Federal support expressed
for the withdrawal of vulnerable
tracts from the offshore oil drilling
lease process.

2. Specificity needed in FEIS as to what Policy 9 Chapter 4 has been
"1certain projects" can be permitted clarified to indicate that uses
in port areas without opportunity which would require no state or
for state review for maritime de- Federal permits or funds wouldn't
pendency. come under state review for mari-
time dependency.

3. Permits for wastewater treatment con- Currently, actions the the Division
struction grants by the Division of of Water Pollution Control (DWPC)
Weter Pollution Control should be are exempt from a MEPA filing.
required to undergo MEPA review. However, if an action by DWPC re-
quires a state permit from another
agency, it may be required to file
under MEPA. In addition, since
wastewater treatment projects re-
ceive Federal funds they must be con-
sistent with CZM policies, regard-
less of MEPA involvement.

326

Comments Responses
107. (cont.)
4. Questions DEIS assertion that CZM won't The MCZMP won't question a National
review National security status as a security justification nor the
justification for exemption from need for such a project. However,
Federal consistency provisions. MCZMP will address the suitability
of alternative sites for the pro-
ject and will review the project
to ensure that it conforms to the
maximum extent practicable, with
the enforceable policies.

5. Energy conservation is discussed on This correction has been noted in
six pages in the plan, not two as the administrative record.
stated in the DEIS, page 11-57.

6. The DEIS discussion of National interest Since the EIS is intended to dis-
and impacts should include cautions cuss the general impacts of the
on energy-related impacts outlined program, it's not possible to
in the plan. enter into a detailed discussion
of specific activities mentioned
in the plan.

7. Regional CAC's have met since July 1975, See Chapter 7, indicating that
not just "over the past year." regional CAC's have met, often on
(p. II-67) a monthly basiA, during the past
2 years.

8. Supports inclusion of entire Cape The entire Cape is within the
within the coastal zone. coastal zone. (See general
question 4 for more information.)

9. Appreciates the Federal support for No response necessary.
the withdrawal of particularly
vulnerable tracts from the OCS
leasing process.

108. The Nickerson Companies, Orleans, J.A. Nickerson
1. MCZMP creates new executive power without See general question 1.
enabling legislation.

2. MCZMP removes local powers. See general question 10.

3. Tighter State control within the See general question 5.
coastal zone will result in more cost
and delays for development not encoun-
tered in other parts of the State.

4. Questions legality of "networking" in A state may "network" existing
management plan. authorities for a management pro-
gram if they are comprehensive
enough to meet the requirements
of the CZMA. See general question
1.

5. MCZMP ignores the economic impact See general question 7.
on the areas affected.

6. MCZMP sets a precedent for transfer There is no statutory authority
of economic development decisions to giving the Office of Environmental
the Office of Environmental Affairs. Affairs power over economic de-
velopment issues, and since the
MCZMP will be implemented using
existing legislation, the purview
of EOEA will not be expanded.

is 327

Comments Response
109. Associated General Contractors of Massachusetts
1. CZMA requires that the State have prime The Executive Office of Environ-
reponsibility for coastal management mental Affairs has prime responsi-
while the Growth Policy report says hility for implementing coastal
local officials will have prime management and works directly
responsibility. with the Federal Office of Coastal
Zone Management.

2. It is not clear what "policies, stan- See Chapter 4 for a discussion of
dards, objectives and criteria" an acti- the regulatory policies to which
vity in the coastal zone would be sub- an applicant will be subject,
ject to. Is it only the regulations through the State permitting
promulgated as a result of MCZMP which process immediately following
an applicant would be bound to or is it approval. New regulations will
also the March 1977 Draft MCZMP and the be promulgated during the first
March 1977 Coastal Atlas? year of program implementation.

3. The MCZMP will inhibit development; it See general question 5.
does not provide development with pre-
dictability and clarity in EOEA decision-
making.

4. Since only 17 of the 38 policies are en- Seventeen of the 38 policies in
forceable, the plan doesn't meet the the March 1977 Draft MCZMP and
Federal requirement for "sufficient DEIS are regulatory in nature.
policies of an enforceable nature." They were the only policies upon
which a finding of "sufficient
policies" was made under the CZMA.
The rest of the policies are not
intended to be regulatory; they
are meant to provide guidelines
for meeting the goals of CZM.
In addition, neither the CZM Act
nor the regulations define "suf-
ficient policies of an enforceable
nature" on the basis of number or
percentages.

110. League of Women Voters of Massachusetts The Statewide advisory group is
1. Expresses support of the MCZMP, hut charged with evaluating the MCZMP
recommends that the regional Citizen and advising the Secretary of
Advisory Committees be charged with Environmental Affairs on amend-
the task of evaluating the program ments to the MCZMP; each regional
and recommending changes to the Secre- advisory council will have a
tary of Environmental Affairs. representative on the Statewide
advisory group who will be charged
with reflecting the opinions and
evaluations of his/her region.

2. Add to the Statewide advisory groups' There will be representation from
responsibilities the task of involving inland communities on the State-
inland communities in decision making wide advisory group (see Chapter 7).
when CZM decisions affect them; e.g.,
inland energy facilities siting.

3. OCZM should condition the first year
of fndin bymandtingthereviion Regulations will be promulgated dur-
of fund ins andating he mnationiof ing the first year of implementa-
of regulations and the designation oftin(sechdlofrgain
tion. (see schedule of regulation
Areas for Preservation or Restor- promulgation, Section 6.6). A
ation.
decision on each of the 10 APR's
recommended for designation in the
MCZMP will also be made during the
first year of implementation; i.e.,
public hearings will have been held
and the Secretary of Environmental

Affairs will decide on the basis
of such hearings which APR's to
designate. There is-an annual
review of the state by the
federal OCZM to determine if
funding should continue. The
non-completion of either of these
issues would subject the state to
possible withdrawal of funds.

111. Massachusetts Forest and Park Association
i. Expressed support for the program, See Chapter 4.
particularly coastal hazards policies.
Would like to see policies cate-
gorized by their regulatory or non-
regulatory nature.

2. Approval of the Program should See general question 2.
not be withheld until regulations
are promulgated.

3. A strict timetable for promul- The Federal Office of Coastal
gation of Division of Waterways Zone Management has required and
and Wetlands Protection Act regu- the Massachusetts office is com-
lations must be adhered to. mitted to promulgation of these
regulations by June, 1978. See
Section 6.5 for schedule of pro-
mulgation.

4. The DEIS states Scenic Rivers Generic regulations for the Scenic
regulations will not be drafted, Rivers program will not be writ-
but the March 77 draft MCZ.MP ten. However~as each river
states that CZM is assisting is designated, regulations will
in drafting such regulations. b e drafted which will be tailored
to local concerns and recommenda-
* ~~~~~~~~~~~~~~~~~~tions.

5. Urges promulgation of Ocean Draft regulations will be sub-
Santuaries regulations by plan mitted to OCZM by the end of March.
approval.

6. Approval of program renewal should A decision on whether to designate
be tied to designation of APR's each of the 10 proposed APR's
and vigorous implementation of will he made in the first year.
the Wetlands Restriction Program. Public hearings on those chosen
for designation will also be held
in the first year of the program
implementation. A portion of
CZM funding will be allocated to
the Dept. of Environmental
Management to accelerate coastal
wetlands restriction.

7. Relationship between MCZNP recoin- CZM is working with the Division
mendation to acquire undeveloped of Conservation Services, which
hazard-prone areas and the funding administers Self-Help funds, to
criteria of the Self-Helf Program incorporate in their funding de-
should be clarified. liberations criteria for acquiring
such land.

112. BOSTON SHIPPING ASSOCIATION, ARTHUR LANE, President
1. Expresses support for the MCZMP. No response necessary.
specifically for port and harbor
policies.

113. MASSACHUSETTS ASSOCIATION OF CONSERVATION COMMISSIONS
1. Expresses full support of the No response necessary.
MCZMF. 329

114. Boston Edison Company, Frank Lee
1. "Coastal dependency" should be defined Policy 8, Ch. 4 has been revised
to include economic as well as physical with regard to the location of
dependency. Thus, ports should allow energy facilities in ports.
energy facilities.

2. New standards are imposed on the Energy The plan, in no manner, usurps the
Facilities Siting Council. (See p. Energy Facilities Siting Council's
IV-6 of DEIS and p. 3 of Addendum to decision making authority. Both
March 1977 Draft MCZMP). Chapter 9 and Policy 8 describes
EIS. As described in the Memo of
Understanding, the EFSC has agreed
to adopt rules and regulations in-
corporating CZM concerns as part
of their evaluation process to site
energy facilities

3. The electrical generating plant, Because of the state's determination
Pilgrim Unit 2, should be grandfathered of federal consistency is automatic
under the plan because this has already if all state permits or licenses
had extensive federal, state, and local have been issued, and because state
reviews. approval has been granted, Pilgrim
2 is consistent with the MCZMP.
The plan has been amended to clarify
this status. (See Policy 8.)

4. The MCZMP should not review renewal of The MCZMP relies on the Division of
water discharge permits. Water Pollution Control, the legally
authorized agency, to renew and issue
water quality certificates. That re-
view will not be usurped.

5. The policies of the Visual Environment This section has been amended to
are uncertain and vague. be more specific. (See Policy 18.)

6. Recreation Policy 27 is vague in defining Policy 13 has been amended similar
"near" recreation areas. to the visual policies, clarifying the
meaning of "near".

7. "Unenforceable" policies should not be See Chapter 4 for clarification of
included in the MCZMP. whether policies are regulatory, fund-
ing, or incentive in their nature.
However, MCZMP feels that a plan
should contain a variety of policies
and implementation techniques, not just
regulatory or "enforceable" policies.
(See general question (6) for further
discussion of policies and implementa-
tion techniques.)

8. The MCZMP fails in one of the states re- See Chapter 5 for discussion of how
quirements of the DEIS (p 1-3): the poli- MCZMP affects development activities
cies and standards are not articulated within the coastal zone boundary.
clearly and sufficiently enough to identify Chapter 4 has been revised to provide
who will be affected and how. added specificity.

115. Plymouth Rod & Gun Club
Fully endorses the MCZMP. No response necessary.

116. Massachusetts Audubon Society, Deborah Howard
Supports MCZMP. No response necessary.

117. Massachusetts Port Authority (MassPort)
Finds MCZMP compatible with Massport plans for No response necessary.
the future of the airport, seaport, fish pier,
etc. Supports MCZNP, especially port and harbor
policies.

118. MIT Sea Grant, Dr. Dean Horn
Expresses support for MCZMP. No response necessary.

330

119. Massachusetts Beach Buggy Association
Conrad Smith
Expresses support for MCZMP. No response necessary.

120. Boston Harbor Associates, Boston
1. Urges federal acceptance of the MCZMP once State legislative approval not neces-
state legislative support has been re- saryas program is based on existing
ceived. laws.

2. Urges broader outreach of the Monitor. The use of the Monitor is being ex-
panded to give notice of all activi-
ties requiring federal consistency
certification as well as those re-
quiring environmental impact assess-
ments.

3. Urges creation of a council to address A statewide council and regional ad-
MCZMP issues. visory councils will be formed to
advise on matters relating to imple-
mentation of the MCZMP.

121. Boston Broadcasters, Inc., Leo Beranek
1. Expresses strong support for MCZMP because No response necessary.
it balances the economic and environmental
needs of the Commonwealth,

2. Recommends a chapter be added to the MCZMP This shorter, more concise document
to address the consensus of the business represents an edit of the March 1977
community. MCZMP which was done, in part, to
address many of the concerns of the
business community about length.

122. East Boston Chamber of Commerce,
R. Dell Orfano
Expresses support for MCZMP port and harbor No response necessary,
policies, especially Policy 17 which gives
highest priority to maritime dependent acti-
vities in designated port areas.

123. Boston Harbor Citizen's Advisory Committee
Lydia R. Goodhue
1. Expresses general support for MCZNP, for No response necessary,
planning and for the need to have hard
data for use in decision making.

2. Disappointed with CZM's public participa- See general question 9. The Boston
tion in the Boston Harbor area, and re- Harbor area will have a CAC during
commends that Boston Harbor have a Citizen CZM implementation, Each CAC will have
Advisory Council (CAC) and a representative representative on the Coastal Resources
on the Coastal Resources Advisory Board Advisory Board.
(CRAB).

3. Recommends that additional pump out The Commonwealth, through the Division
sanitary facilities be constructed at of Water Pollution Control, will meet
existing or new boat ramps and launch- or exceed EPA standards for pump out
ing sites, facilities.

4. Recommends that the prison be removed This recommendation is consistent with
from Deer Island, while expanding recrea- the MCZNP, (See the discussion of
tion facilities and the sewage treatment Policy 3 in the Boston Harbor section
plant on the island. of the March 1977 Coastal Atlas.)
331

124. Sierra Club, New England Chapter, Birge Albright
1. Expresses support for MCZMP. No response necessary.

2. Recommends more state control over local MCZMP implementation is based on both
activities and authorities, as a part of state and local authorities. Improved
of MCZMP implementation. EOEA agency rules and regs along with
CZM technical and financial assist-
ance will help communities to improve
coastal resource management.

3. Recommends promulgation of rules and regs See general question 2.
prior to program implementation.

125. EUA Service Corporation, Boston
1. Concerned that new roadblocks will be thrown See general question 5.
in the way of constructing electric genera-
ting facilities.

2. Suggests inclusion of a statement suppor- The plan states that there will be a
tive of accommodating energy facilities in need for more energy and that the
the coastal zone. siting of facilities is in the public
interest. The policies are designed
to allow for adequate provision of
energy needs.

126. Beverly Shoreline Rights Association
Expresses support of MCZNP. No response necessary.

127. Saugus Action Volunteers for the Environment
Expresses support for MCZMP. No response necessary.

128. New England Power Service Company, New England
Power Company, and Massachusetts Electric
Patric J. Kenny
1. Questions the legal authorities to implement See general question 1.
the MCZMP.

2. A review of the issues and requirements of The planning process which has been
the MCZMP should be conducted. ongoing since May, 1974, accomplished
this review. Involved in the deter-
mination were CZM staff and many
interest groups, officials, and
citizens.

3. The authority of the Secretary of Environ- See general question 1.
mental Affairs under Chapter 21A is not
sufficient to implement the MCZMP.

4. Seventeen of 38 policies are not enforceable. See Chapter 4 for a clarification of
the policies regarding their regu-
latory/non-regulatory implementation
technique.

129. League of Women Voters of Greater Newburyport,
Susan Sexton
Unanimously in favor of MCZMP. No response necessary.

130. Essex County Greenbelt Association
Expresses support for the MCZMP. No response necessary.

131. Ipswich River Watershed Association
Expresses support for MCZMP. No response necessary.

132. Cape Cod Contractors and Builders Association
Thomas W. Joy
1. Does not feel economic considerations have See general question 7. Because of
been adequately addressed. the importance of the coastal zone
with regard to economic development
on Cape Cod, OCZM may be able to fund
further economic studies during the
first year of implementation.
332

2. Believes MCZMP will add additional layers to See general question 5.
the state bureaucracy through new and revised
rules and regulations.

3. Believes MCZMP will reduce local zoning See general question 10.
* ~~~~~authority.

4. Recommends a reassessment of the decision The entire Cape is within the
to include all of Cape Cod within the coastal zone.
coastal zone boundary.

5. Policy 12 denies protection of private The policy does not prevent pri-
property unless there are public benefits vately funded erosion protection
work as long as it does not ad-
versely affect adjacent property
or downcoast areas. The policy
allows for federal or state
funded structural protective works
if certain criteria are fulfilled
(See Chapter 4.)

6. Objects to Policy 22 (linking recreation Comment on Policy 22 is not de-
sites) because it will be interpreted to tailed enough to make a response.
mean any development anywhere on Cape Cod.

7. Objects to Policy 35 which is difficult to The policy is designed to ensure
understand and which addresses water and consistency among federal and
sewage issues covered under federal pro- state agencies with MCZMP objec-
grams. tives. The policy (renumbered
as #26) has been revised to make
it more clear.

133. Massachusetts Roadside Council Vision, Inc.,
Ron Fleming
Believes MCZMP represents a competent beginning The MCZMP recognizes that the
for setting visual quality standards. However, primary authorities for establish-
recommends: -Action should not be advisory but ing and implementing visual design
regulatory; -Review and regulatory authorities criteria are local. The local au-
should include public and private projects; thorities include zoning and de-
-General guidelines should be supported with sign review by an established
specific requirements such as mandatory de- local board (i.e., Zoning En-
sign review for National Register historic abling Act, Historic District Act,
districts, landscaping requirements for park- Scenic Roads Act). Application
ing lots and mandatory undergrounding of new of the Scenic and Recreational
utility systems; -Design review power within Rivers Act Act (GL. 21 S.17A),
the coastal zone must be considered a key review of projects near historic
legal tool; -Develop corridors in the coastal features and designation of sign
zone which are free of off-site signs; - free areas by the Outdoor Adver-
-Expand the authority of the Massachusetts tising Board will ensure that
Historical Commission to review state develop- statewide concerns are met.
ment projects and private activity requiring Stronger state control is beyond
a state permit. the jurisdiction of existing law
and would be contrary to the major-
ity of the public who consider
visual issues to be primarily of
local concern.

134. South Shore Chamber of Commerce, Ronald Courvelle
1. Expresses opposition because MCZMP does not See general question 5.
represent a sound management structure built
on the foundation of current statutes and
equitably managed. The MCZMP does not
accomplish permit consolidation, manage-
ment improvements, concurrent reviews where
possible, and establishment of computer
tracking of permit applications.

Is ~~~2. Desire management flow charts and budget EOEA organizational charts are in-
allocations under MCZMP. cluded in earlier drafts and this
DEIS. Chapter 4 of the DEIS
333

134. South Shore Chamber of Commerce, Ronald Courvelle contained a discussion of manage-
ment authorities and corresponding
policies, The grant application
for funding under Section 306 of
P.L. 92-583, showing the allocation
of CZM funds, will be circulated
through the A-95 review process
for comments,

3. Concerned about subjective, value-laden See revised program in the FEIS.
language in the MCZMP.

135. Boston Society of Landscape Architects,
A. Curtiss Pollari
1. Increase state authority (in the Executive MCZMP implementation is based on
Office of Environmental Affairs) over local both state and local government.
jurisdiction in coastal areas to ensure full MCZNP builds upon existing manage-
MCZMP implementation. ment tools, and seeks to improve
the efficiency and operations of
government. If the existing manage-
ment authorities prove inadequate
to implement CZM, EOEA, or the
legislature might seek additional
state coastal management authority.

2. For MCZMP to be enforceable, additional re- During the first year of Section 306
gulations must be adopted for the Ocean funding, new or revised rules and
Sanctuaries, Waterways and Wetlands Pro- regulations will be promulgated by
fection Program. A regulation should be the respective EOEA agencies for
promulgated to formalize the relationship the Ocean Sanctuaries, Waterways
between EOEA and EFSC. and Wetland Protection Programs.
The EFSC has the final authority
over energy facility siting in the
Commonwealth. CZM will not inter-
fere with this authority. The EFSC
has agreed to consult the CZM plan
in making its determinations and
adopt appropriate regulations.

3. All Areas for Preservation or APR designations (Areas of
Restoration (APR) should be Critical Environmental Concern)
designated prior to program will begin in the first year of
approval to assure protection. MCZMP implementation. Each desig-
nation will require public involve-
ment and many months of state,
local, and regional discussions.
Federal approval only requires a
process for designation - not com-
pletion of the process.

136. Mrs. Harvey N. Fairbank, Duxbury
Opposes any acquisition of the These proposed acquisitions were
Saquish or Gurnet in Plymouth. reviewed by the Plymouth Coastal
Advisory Committee.

137. Marguerite Morris, Marshfield
1. Expresses support for MCZMP. No response necessary.

2. MOU's should be evaluated within two A comprehensive review of the pro-
years of implementation. gram will take place each year by
the Federal CZM office in which
implementation measures will be
evaluated. The Secretary of EOEA
will also conduct periodic perfor-
mance evaluations. In addition
both the state and regional advis-
ory councils will be responsible
for critique of program effective-
ness.
334

138. Massachusetts Federation of Planning Board,- Inc.
Unanimously supports MCZMP. No response necessary.

139. Marcuis B. Graham. West Newton
Recommends -no acquisition of Saquish and MCZMP will work toward proper
Gurnet Point, Plymouth, because of maintenance of such acquisition
sanitation, traffic, and dune erosion and will work with local advis-
problems. If acquisition necessary, ory committee to develop facil-
prefers at federal level to ensure ities compatible with facility
sufficient funds to correct problems. of area.

140. Thomas Walsh, Co-Chairman, Orleans, CZM
Committee
Expresses concern over many unanswered This document has been rewritten
questions relating to administration to clarify questions brought out
and implementation of MCZMP. by extensive review.

141. Elliot Krefetz, Chelsea
Expresses support for MCZMP. No response necessary.

142. William Webber, Great Barrington
1. Legislators should be represented Representatives and Senators will
on regional advisory councils. be informed of the dates and
agenda of all advisory committee
meetings and their involvement
is invited in the advisory
process.

2. A memorandum of understanding between The MCZMP acknowledges both envir-
MCZMP and Labor & Industry should be onmental and economic concerns
signed, acknowledging their partner- in its policies and looks to
ship in the coastal zone. working with other interests to
ensure that a variety of uses are
accommodated.

143. Greater Lawrence Chamber of Commerce,
John Bassett
Supports delay of MCZMP implementation See general question I and
until legal authority to implement the Attorney General's memorandum opinion
program is determined. in Appendix H.

144. Mobil Oil Corporation. New York
1. The approval process (public The approval process requirements
notice requirements)f or siting for siting oil-related facilities
oil related facilities is too complex. are promulgated by the Energy
Facilities Siting Council and
not by the MCZMP.

2. Recommends consideration of points See responses to comments 66.
raised in American Petroleum
Institute comments.

145. Residents of the Great Neck Neighborhood of
Wareham
1. The Draft EIS has failed to evaluate the See comment 45.
environmental impact of the Stony Point
Dike proposal.

2. The proposal does not conform to the See comment 45.
Massachusetts Coastal Zone Management
plan or to Federal, state or local
plans for the area.

3. Public access to Stony Point Dike would See Comment 45.
have an adverse environmental impact.

0 ~~~~~~~~~~~~~~~335

145. Residents of the Great Neck Neighborhood of
Wareham
4. The recommendation for public land access See comment 45-
to Stony Point Dike has such functional
shortcomings as to require its elimin-
ation from the Massachusetts CZM
Program.

5. The Draft Environmental Impact Statement See comment 45
is of insufficient detail to evaluate
the extent of their impact on the phy-
sical and social environment of the
Stony Point Dike project.

6. The Draft Environmental Impact Statement See comment 45
is insufficient to satisfy the require-
ments of the Massachusetts Environmental
Policy Act.

7. The Stony Point Dike proposal is not in See comment 45
conformance with policies 1,2,7,8,9,21,
23,25,26,34,35,36.

8. The recommendation for public access See comment 45
and a major recreational beach on
Stony Point Dike is unadvisable
because of its poor recreational
potential, hazard to its users and
Ehe environment, and its costly
nature.

9. The dike is now serving an important See comment 45
and suitable recreational, economic,
ecological, and navigation protection
function. The proposal for the
Stony Point Dike will detract from
these existing functions.

146. Richard H. Loring, Chairman, Cape Code CZM
Advisory Committee
1. The Cape Advisory Committee voted to See Appendix E for boundary
include the entire Cape within the description including entire
boundary. Cape.

2. Recommends changing word "near" The word "near" has been
in Policies 14 and 27 to "abutting." defined. See Policies 12 and
13, Chapter 4.

3. Finds the word "infrastructure" in Word "infrastructure" has
Policy 35 confusing. Either omit been omitted. See Policy
from MCZNP or define the term. 26, Chapter 4.

147. Massachusetts Shellfish Officers Association,
Joseph Almeida
Endorses the MCZI4P and requests a greater The MCZMP supports the role of
role in enforcement and management. shellfish officers and will work
with them to determine how they
can more fully utilize their
authorities within existing
statutes.

148. Stephen and Barbara Brune. E. Sandwich
Oppose further recreation development of MCZNP will work toward proper
Saquish Beach. maintenance of such acquisition
and will work with the local
advisory committee to develop
facilities compatible with the
fragility of the area.

336

149. Appalachian Mountain Club, Southeastern
Massachusetts Conservation Committee,
Stephen Driscoll
Expresses support for MCZMP but concerned Any plans for recreational use of
with ecology of "wild" areas if they are an area will respect its
turned into recreation areas. ecological fragility.

150. Joanne Willis et al
Duxbury
1. Oppose acquisition at the Gurnet and See comment 136.
Saquish Beach, Plymouth.

151. Association for the Preservation of Cape
Cod, Charles E. Oglesby
Expresses strong support for Policy 13 No response necessary.
regarding the visual environment.

152. New England Power Company, David Beattie
Questions legal basis for implementation Massachusetts Attorney General memoran-
of MCZMP. dum opinion verified authorities vested
by Chapter 21A to implement the
CZM Plan (see general question 1).

153. George & Nancy Jackson, No. Stonington, CT.
Concerned about expansion of recreation Any expansion of facilities or
facilities on Duxbury, Plum Hills and use of the areas will respect
Saquish Beaches because of their their fragile ecology.
fragility.
1. Opposes local acquisition of Saquish MCZMP will work toward proper
Beaches because of inadequate police maintenance of such acquisitions
protection. Would prefer federal and will work with the local
acquisition. advisory committee to develop
facilities compatible with the
area.

154. David Harrison for Miles River Sand and
Gravel Co., Inc., Ipswich
Requests that the operation of the Miles MCZMP will not and does not have
River Sand and Gravel Co., Inc. be the authority to review all
allowed to continue. existing coastal uses to determine
whether they should or should not
be allowed to continue. A sand
and gravel operation will not be
affected by MCZMP unless it would,
at some time in the future, be
required to obtain a state or
federal permit or be required to
meet new state or federal
standards. Since the Miles River
Sand and Gravel Co. is adjacent
to a salt marsh the Conservation
Commission, in issuing an order
of conditions, would have to
ensure that the activity was so
conditioned or denied as to
minimize damage to land, to pro-
tect public and private ground-
water supply, and to ensure storm
damage prevention and flood
control (Policy 1). Revised
regulations under the Wetlands
Protection Act are being drafted
to incorporate these concerns.
Also, since part of the property
is within an area proposed for
designation as an APR, policy
2 would apply if the area is
so designated. However

337

the boundary for the APR is the
proposed one based on the 100-year
floodline. A final APR boundary will
be addressed at the public hearing
on designation. In addition, Policy
2 has been clarified to indicate it
will not prohibit existing uses. I

155. Cracker Snow, Ipswich
Supports MCZMfl as it affects Ipswich No response necessary.

156. Colonial Coastal Corporation. Paul Neelon
1. The "private sector" has not been Through a mailing list of 5,000,
sufficiently educated on the MCZMP. through meetings with special interest
groups and through advertised, public
meetings in coastal regions, the CZM
staff attempted to keep all citizens
informed. In addition, both the Gov-
ernor? s Task Force on Coastal Re-
sources and regional citizen advisory
committees counted representatives
from the private sector among their
members. The opportunity *to become
involved and informed was given to any
interested citizen. As in any
citizen effort, participation is
voluntary.

2. Fears that visual environment policies Of the visual environment policies,
could be used to prevent development only the ones dealing with impacts
for arbitary reasons. on historic districts and encouraging
scenic river and road designation
are regulatory in nature. The others
(encouraging visual concerns in
facilities design and visual access
in urban areas) are meant to encour-
age an awareness of visual factors0
through development of a design
handbook and other types of technical
assistance and through coordination
with state and federal programs
authorized to develop sites, acquire
property or grant permits in the
coastal zone. Any consideration of
visual impacts of a proposal must be
within the specific authorities
legislatively granted to an agency
and, therefore, cannot be applied
arbitrarily to prevent development.
Any adoption by local boards of the
visual concerns and criteria set
forth in the policies would have to
be detailed in a bylaw.

3. The ports and harbors policies, in The regulatory policy (7) which
conjunction with MOU's, almost prohibits the preemption of maritime-
amount to re-zoning or forcing a dependent activities in part areas
town to re-zone. applies only to very limited
sections of waterfront, all of which
are already zoned to accommodate
such activites. None of the
other ports and harbors policies
would require re-zoning because they
do not proscribe certain types of
development.
3380

156. Colonial Coastal Corporation. Paul Neelon
4. Concerned that MCZMP will increase the MCZNP has stated as one of its goals
number of state owned ramps in to improve public access to coastal
competition with private marina recreation resources. With increas-
facilities. ing demand for recreation facilities,
including boat ramps, the efforts
of the public and private section
will be needed to satisfy demand.

5. Concerned about MCZMP requirement The policy has been clarified to
that each marina have a sewage indicate that MCZMP will not re-
pumpout and disposal facility. quire pumpout facilities at each
marina. If it is determined
through a basin study that discharges
from recreational vessels are
causing violation of water quality
standards, CZM will recommend that
the segment be designated a no
discharge area. Pumpout facilities
at new marinas would then be requir-
ed only if the boating activity is
generally confined to the segment
and if sufficient facilities cannot
be provided at public boating
facilities.

6. MCZMP credibility damaged by "recent MCZMP does not claim to institute
admission" that a one stop permit one stop permitting. See general
system is not possible under present question 5.
law.

7. Fears MCZMP will increase the power of See general questions 1 and 7.
the Executive Office of Environmental
Affairs which could be economically
disastrous.

8. Fears small business will have no voice During the MCZM planning phase,
in future policy formulation. Suggests small businessowners have had
representatives from chambers of representatives on both the Gover-
commerce be appointed to state and nor's Task Force and regional ad-
regional advisory councils. visory committees. See general
question 9 for a further discuss-
ion of past and future citizen
involvement in MCZMP.

339

Appendix G.
The Secretary's 21A Regulation

340

Establishment of the Coastal Zone Manage:-ent Program

by the Executive Office of Environmental Affairs

1.0 Authority 1
2.0 Purpose 3
3.0 Definitions 3
4.0 Miscellaneous Provisions 8
5.0 Establishment of the Coastal Zone Management Office
and Adoption of the CZM Plan 11
6.0 Procedures for Actions in the Coastal Zone 18

6.10 Role of EOEA agencies 18
6.20 Resolution of Conflicts 18
6.30 Proceedings Conducted by EOEA Agencies 21
6.40 Procedures for Designation of an Area of
Critical Environmental Concern with the
Coastal Zone 22
6.60 Continuing Consultation Mechanisms with
Local, Regiona, and Interstate Agencies,
and other State Agencies 27

7.0 Federal Consistency Procedures 31

7.10 Procedures for Activities Requiring a
Federal Permit 32
7.30 Procedures for Federal Agency Activities 42
7.40 Procedures for Federal Financial Assistance
to State and Local Governments 46
7.50 Procedures for Federally Permitted Activities
Described in Detail in OCS Plans 48

8.0 Performance Evaluation 48

Policy Appendix 49

Boundary Appendix 113

341

1.0 Authority - These regulations are promulgated by the Secretary of the
Executive Office of Environrmr1ial Affairs pursuant to the Reorganization Acts and
other authorities. Specifically, they are promulgated pursuant to Chapter 6A
of the General Laws, Sections 2 through 7 (all references to the General
Laws will hereinafter be abbreviated as G.L. c. 6A, s. 2-7), G.L. c. 21A
Chapter 706 of the Acts cf 1975 (codified throughout the Massachusetts General
Laws) and Chapter 1230 of the Acts of 1973.

These regulations consist of 8 Parts and two Appendices; which are
described in Sections 5.4 and 4.8, respectively.

Commentary

(The Commentary is not part of the formal regulation, but is intended to
explain or clarify the provisions of the regulation and it is typed in italics.)

All of the authorities cited above are a part of the legislation which
has reorganized Massachusetts government. The basic intention of this legis-
lation has been to organize the administration of state government along
functional lines, so that agencies with related areas of responsibility can
operate in a coordinated and consistent manner.

The first piece of Reorganization legislation was Chapter 704 of the
Acts of 1969, codified in part as Ch. 6A, SS. 1-7, which created the nine
Executive Offices, including Environmental Affairs, established the position
of the Secretary, and gave to her powers to accept funds, to have access to
the records of all agencies within the Executive Office, and empowered her to:

"Act as the executive officer of the governor for accomplishing the
purposes of his executive office. He shall conduct comprehensive
planning with respect to the functions of said office and coordinate
the activities and programs of the state agencies therein. He shall
conduct studies of the operations of said agencies with a view to
effecting improvements in administrative organization, procedures and
practices, and to promoting economy, efficiency, and avoiding useless
labor and expenses in said agencies. He shall from time to time
recommend to the governor such changes as he shall deem desirable in
the laws relating to the organization, structure, efficiency or admi-
nistrative functions, services, procedures and practices of any such
agency or agencies. He shall review and act upon budgetary and other
financial matters concerning said agencies in accordance with sections
two C, three, three A, four, nine:B and twenty-nine of Chapter
twenty-nine."

The sections of Chapter 29 cited above and other sections codified
throughout the General Laws were all a part of Chapter 1230 of the Acts of
1973. This piece of legislation created strong budgetary and administrative
authority in the Secretary including the authority to approve or disapprove
of the annual budget requests of the constituent agencies or of the year-
round use of funds (for personnel, capital expenditures, administration, etc.);
to approve or disapprove of the creation of positions and the hiring of per-
sonnel; and to approve or disapprove of general operating procedures (travel,
over-time, etc.).

Chapter 704 contained a further charge to the Executive Offices (printed
in the General Laws Annotated before Section 1 of Chapter 6A) which stated the
basic intent of the reorganization efforts.

342

"Section 50. Each secr^=ary first appointed to any of the
executive offices es-tabis.!:e by chapters six A and seven of the
General Laws, ox his successor in office, as the case may be,
shall, within two uyars following such first appointment, recom-
mend to the governor such changes in the laws relating to such
executive office, and t? the departments, commissions, offices,
divisions, institutions and other agencies therein, as he deems
necessary for the accomplishment of the purposes for which said
executive office was established.

"Such recommendations shall be made with a view to the elimina-
tion of duplication and overlapping in the functions, administra-
tive practices and facilities of said agencies, the combination
and coordination of information systems, the creation of admini-
strative structures which will assure coordinated and joint
planning, the establishment of clear and readily identifiable
lines of authority and allocations of responsibility, the coor-
dination and consolidation of the delivery of services at state
and regional levels, and the enlargement of career opportunities.

"Such recommendations shall be prepared by each secretary on the
basis of a study of the departments, commissions, offices, divi-
sions, institutions and other agencies within his executive office
to be conducted in accordance with such management guidelines as
the commissioner of administration may from time to time promulgate."

Responding to the charges to create a coordinated management structure
which could eliminate duplication and utilize joint planning, the Executive
Office of Environmental Affairs then drafted further Reorganization legislation.
Chapter 806 of the Acts of 1974 dealt specifically with Environmental Affairs.
The provisions of this law (codified in part in Chapter 21A) grants extensive
new powers to the Secretary. This legislation is discussed at length in
Appendix A of the FEIS. In summary, it estab-
lishes the Executive Office as "the primary agency of the Commonwealth for
environmental planning," charges the Executive Office and the EOEA agencies "to
carry out the state environmental policy" in 28 diverse ways; empowers the
Secretary to "conduct comprehensive planning with respect to the functions of
the office and (to) coordinate the activities and programs of the departments
and divisions within the office; and in "coordinating and improving the
operations of all (agencies) within the office," enables the Secretary to
resolve conflicts between agencies, to jointly implement programs with
agencies and to coordinate program activities involvingtwo or more agencies.

The final piece of legislation, Chapter 706 of the Acts of 1975, completed
the Reorganization process for Environmental Affairs by assigning and transfer-
ring specific functions and agencies with the Executive Office of Environmental
Affairs.

343

2.0 Purpose

a. These regulations are nromulgated to establish the CZM Policies as statendnt~
of the state environmental policy for the Executive Office of Environmental Affairs;
to ensure that the diverse powers and responsibilities within the Executive Office
of Environmental Affairs which operate in or affect the resources of the coastal
zone are administered in a coordinated and consistent manner in order to carry out
the purposes of the Reorganization Acts; to comply with the requirements of the
Federal Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et seq)
by implementing the CZ7M Program, conducting continued Planning and receiving grant
awards; to establish the Coastal Zone Management Office within the Office of
the Secretary; and to conduct such other activities as are consistent with the
CZM Policies and state and federal laws.

b. It is the intent and purpose of the Massachusetts CZM Plan, as approved,
to rely solely on existing statutory authority so that none of the policies,
memoranda of understanding and proposed regulations is interpreted to allow an
expansion of governmental authority beyond existing law. Where the Plan and
regulations are inconsistent with, or interpreted toallow an expansion of such
authority beyond existing law, that part of the Plan or regulation shall be null
and void.

c. "Policy" means a general guideline, a broad purpose. As is the case
with all policies and goals, it is not expected that all policies can be met
all the time because they may conflict.

d. The intent of the CZM Plan is to express certain regulatory and non-
regulatory policies. Regulatory policies are to form a basis for administrative
decisions to approve activities only to the extent that such policies are contained
in the text of the statutes of the Commonwealth or regulations duly adopted and
promulgated pursuant thereto. They are to be applicable to each agency only to
the extent each agency has jurisdiction and authority to enforce such statutes.
Other policies are non-regulatory. They are included in the CZM Plan to help set
out priorities in administrative decisions and to inform the public and decision
makers of a coherent state framework, but such policies are not binding on private
parties.

CO fENTAR Y

Consistent with Parts 5 and 6 of these regulations, the CZM Policies are
binding on all EOEA agencies upon the effective date of this regulation to the
extent their statutory authority permits or unless there is a conflict between
two policies. Some EOEA agencies will be revising their regulations to clarify
how they will be implementing the CZM Policies; other EOEA agencies will require
no regulatory changes as their current regulations adequately define their roles
in the coastal zone.

3.0 Definitions

A-95 shall mean the inter-agency circular administered at the state level
by the Office of State Planning and created by the federal Office of Management
and Budget to coordinate state and local comments on federal assistance requests.

Agency shall mean any board, body, commission, corps, council, department,
division, office, or administrative unit, however labeled, and any authority of any
political subdivision which is specifically created as an authority under special
or general law.

344

Anadromous fish runs sIi]h, i~ean areas within estuaries, streams. bays and coastal
waters which are spawning or feeding grounds for anadromous fish as defined by
the Division of Marine Fisheries.

APA shall mean the Administrative Procedures Act, G.L. c. 30A.

Appropriate EOEA Agency shall mean any EOEA agency whose activities,
authority, jurisdiction or concerns are conducted within the coastal zone,
affect the coastal zone, are identified in the CZM Program, or are otherwise
affected by or responsible for carrying out the policies of the COzt Program.

Area of Critical Environmental Concern (ACEC) shall mean an area which
has been so designated by the Secretary of Environmental Affairs pursuant to
the procedures outlined in Section 6.40 et seq. For the purposes of the
CZMA,which requires states to have a process for designation of areas for
their conservation, recreational, ecological, or esthetic values, the federal
term 'Area for Preservation or Restoration' (APR) will be synonymous with
Area of Critical Environmental Concern.

Barrier beach system shall mean a narrow low-lying strip of land composed of uncon-
solidated material extending roughly parallel to the general coast and either
completely or partially separated from the mainland by a narrow body of fresh,
brackish or saline water or marsh system. Barrier beaches are dynamic landforms
that are presently migrating landward in response to rising sea level. They
serve as a buffer to protect landward public and private property and natural
areas from the force of storms and coastal flooding. In addition, barrier
beaches provide valuable natural habitats and function as natural dynamic
systems that change in response to coastal processes (erosion and accretion, storm
overwash, and dune development).

Beach shall mean the gently sloping shore of a body of water consistine of uncon-
solidated material subject to wave, tidal, and coastal storm action. Beaches
extend from the mean low water line to the duneline, beachgrass line or to
the seaward edge of existing man-made structures.

Coastal embayments shall mean marine waters that have a restricted opening to the
ocean due at least in part to the formation of a barrier beach. Unlike
estuaries or salt ponds there is very little fresh water influence. Coastal
embayments are shallow and may support healthy stands or eel grass and pop-
ulations of shellfish. Most coastal embayments support well dev~eloped salt
marsh systems.

345

Coastal 7zrc --shall mean that area aefined by the seaward limit of the
iassachusetts t :rritorial waters; i.e., three miles beyond the mean low water
lin.re or three nhiies beyond the Exterior Line of the Commonwealth as estab-
lished by the .Marine Boundaries Commission of the General Court; by the
:-assachusetts-::2w Hampshire border, by the Nlassachusetts-Rhode Island border,
and 100 feet inland of the roads, rail lines. or rights-of-wav listed in the Boundary
Appendix of these regulations and delimited in the coastal atlas, scale 1:40,000. The
coastal zone shall further include all islands contained within the
aforedescribed area, but shall exclude federal lands. The coastal zone shall
also include the following areas inland of the roads, rail lines, or rights-
of-way described in the Boundary Appendix: intertidal areas, coastal wetlands
and beaches, tidal rivers and adjacent uplands to the minimum extent of vegeta-
tion affected by measurable saline water, and anadromous fish runs to the
inland boundary of the coastal town, and shall extend in width to 100 feet inland of
the 100 year floodplain along such tidal rivers or anadromous fish runs.
Coastal Zone Boundary shall mean the line of demarcation between those
lands and waters within the coastal zone and those lands and waters landward
of the coastal zone, as set forth in the Boundary Appendix.

Coastal Zone Management Act (CZA) shall mean the federal Coastal Zone
Management Act of 1972 (P.L. 92-583, 16 U.S.C. 1451 et seq.), as amended.

Coastal Zone Management Office (CZM Office) shall mean that office established withi
the Office of the Secretary pursuant to Section 5.0 of these regulations.

Consistency Determination shall be that statement required by the CZMA
of federal agencies proposing an activity directly affecting the coastal zone.
Please refer to Section 7.30-7.35 of these regulations.

Consistency Certification shall be that statement required by the CZIA
to be prepared by applicants for federal licenses or permits in order to
show the consistency of their proposed action with the CZM Policies. Please
refer to Sections 7.10-7.25 of these regulations.

Consistency Concurrence shall be that statement issued by CZM or an EOEA
agency which indicates the consistency, inconsistency or conditions necessary
for consistency of the activity with the C0T policies.

CZM Policy or CZM Policies shallmean any of the policies stated in Section
5.3 and the Policy Appendix of these regulations or as they may be amended
pursuant to Section 4.3.

CZM Program shall mean the CZM Policies, the Final Environmental Impact
Statement (FEIS) and Report (FEIR), regulations, guidelines, memoranda of under-
standing, Volumes I and II of the draft CZM Plan, regional chapters, maps or
other material prepared to implement, interpret, guide or otherwise effectuate
the CZM Policies. CZM Plan shall be synonymous with CZM Program.

Departments and Divisions - see EOEA agency.

Developed Harbors shall mean sheltered harbors and navigable channels which
provide mooring space, berths, slips, ramps, and docks serving a region-wide
boating public, commercial fishermen, cruise boats, ferries, or light marine
industry. Such harbors may also present unique opportunities for the fishing
industry or for waterfront renewal and revitalization.

346

Director shall mean the Director of the CZM Office.

Dune shall mean any low hill, mound, or ridge of sand deposited by wind
action or stoi-n overwash or by artificial means for shoreline protection. Dunes
extend from the beach landward to the end of beachgrass vegetation or the end of
the topographic expression.

Environmental Monitor shall mean the semi-monthly publication of proposed
actions and projects which require filings with the Secretary pursuant to G.L.
c. 30, s. 62-62H, and implementing regulations.

EOEA Agency shall mean any agency, as defined by these regulations, under,
within, or created by the Executive Office of Environmental Affairs. EOEA
department or division shall be synonymous with EOEA agency.

Erosion Areas shall mean areas where there is a loss of land along the shore-
line caused either by natural forces or by the action of man. "Critical" erosion
is typically defined to mean erosion of shorefront property that causes it to
become unusable or will render it unusable imminently. Critical erosion is
evidenced by a loss in significant recreational beach benefits, a significant
loss in other public lands or facilities, significant damage or destruction of
private property, or significant change in the morphology of conservation land.

Estuary shall mean a semi-enclosed boy of water which has a free connection
with the open sea within which sea water is measurably diluted with fresh water
derived from outflowing fresh water rivers. In most instances, the landward
extent of the mixing of fresh and salt water is shown by the presence of salt
water marshes which form along the banks of the river.

Executive Office of Environmental Affairs (EOEA) shall mean the agency
created by G.L. c. 21A, composed of an Office of the Secretary, five departments
(the Department of Environmental Quality Engineering, of Environmental Management,
of Fisheries, Wildlife and Recreational Vehicles, of the Metropolitan District
Commission, and of Food and Agriculture) and other agencies. It shall be
referred to as EOEA.

Financial Assistance shall mean any direct or indirect financial aid pro-
vided by any agency, which shall include but not be limited to mortgage
assistance, special taxing arrangements, grants, loans, loan guarantees, debt
of equity assistance and the allocation of state or federal funds.

Floodplains shall mean coastal lands located within the 100 year flood
zone, as defined by the Army Corps of Engineers flood profiles.

Historic Sites or Districts shall mean man-made sites of historic,
archeological, architectural or cultural value listed on the National Register
of Historic Places or districts established by special legislative act or
pursuant to G.L. c. 40C.

Local Government shall mean those units of local government with the power
under existing state statutes to regulate or restrict the construction, altera-
tion or use of land, water or structures thereon or thereunder. For the pur-
poses of Sections 6.60 - 6.68 local government shall further mean Boards of
Selectmen or Mayors, Planning Boards, Conservation Commissions and the Martha's
Vineyard Commission but shall not mean such groups as Shellfish Wardens, Boards
of Health or Town Engineers.

347

>[EPA shi--i mean the Massachusetts Environmental Policy Act, G.L. c. 30,
s. 61-62H.

Negative Determination shall mean that statement prepared by Federal
agencies that a consistency determination is not required, see section 7.33.

NEPA shall mean the National Environmental Policy Act of 1969, 42 U.S.C.
4231 et seq., 83 Stat. 852, Pub. L. 91-190.

NOAA shall mean the National Oceanic and Atmospheric Administration.

Office of the Secretary shall mean the chief administrative, policy pro-
gram planning and enforcement agency of EOEA. It is composed of the Division
of Law Enforcement, the Division of Conservation Services and special executive
programs which include, at present, the Environmental Impact Review Program
(the MEPA Unit) and the Coastal Zone Management Office (CZM Office).

Permit shall mean a permit determination, order or other action, including
the issuance of a lease, license, permit, certificate, variance, approval or
other entitlement for use granted to any person, agency, firm or corporation,
including trusts, voluntary associations or other forms of business organiza-
tions, by an agency for a project but shall not include a general entitlement to
a person to carry on a trade or profession or to operate mechanical equipment
which does not depend upon the location of such trade or operation.

Port Area shall mean locations that include navigable channels of 20 foot
depth or more, lands abutting the channels which are suited for marine dependent
or industrial use, and well-developed road and rail links leading to major
arterial and truck routes. Such locations are also served by public water
supply and sewage treatment systems capable of accommodating heavy industrial
use and are separated or remote from residential neighborhoods and commercial
business districts.

Project shall mean any work, action, use or activity either directly under-
taken by an agency, or, if undertaken by a person, which seeks the provision of
financial assistance by an agency or the issuance of a permit by an agency but
shall not include a grant of aid for medical services or personal support, such
as welfare or unemployment funds to an individual or a third party on behalf of
an individual. The word "activity" shall be synonymous with "project". (The
federal consistency provisions, Section 7.00 et seq. uses the term "activity" so
as to parallel the use of that term in federal law and regulations.)

Public Recreational Beaches shall mean suitable, sandy beaches with access
adequate to provide recreation opportunities for a region-wide public.

Salt Marsh shall mean either a high marsh which is a low-lying coastal wet-
land characterized by the presence of Spartina patens and flooded by seasonal
high tides or a low marsh which is characterized by the presence of Spartina
alterniflora and submerged by normal high tides.

348

Salt Pond shall mean a shallow enclosed or semi-enclosed bay of saline water
formed as the result of glaciation or barrier beach formation at the mouth of a
shallow bay. Salt ponds are subject to fresh water influence from small streams
emptying into their uppr reaches or springs along their periphery and/or in the
pond itself. Salt marsh vegetation usually forms a fringe around the pond.

Shellfish beds shall mean those areas of bottom and associated vegetation
which presently provide a habitat for any one or more of the following: shell-
fish, mussels, oysters, quahogs, soft shell clams, bay and sea scallops, surf
clams, and ocean quahogs.

Significant Resource Areas (SRA) shall mean anadromous fish runs, barrier
beach systems, beaches, coastal embayments, developed harbors, dunes, erosion
areas, estuaries, floodplains, historic sites or districts, port areas, public
recreation beaches, salt marshes, salt ponds and shellfish beds. For the purposes
of Sections 305(b)(2)(4) of the CZMA which requires that Geographical Areas of
Particular Concern (GAPC) be inventoried and designated, SRA's shall be synonymous
with GAPC's.

State Environmental Policy shall mean those statement of environmental
policy identified by Section 5.1, 5.3 and the Policy Appendix of these regulations.

The Office shall mean the Executive Office of Environmental Affairs.

User Groups shall mean those groups which are in some measure involved with
the use of coastal resources. User groups may include, but need not be limited
to, the following: recreation groups; commercial contractors, labor, business
and utility interests; university, research and educational groups; state,
federal, and local government officials or planners; the Legislature; sports-
mens' groups or commercial fishermen; conservation and civic interests; and
interested citizens. (See Sections 5.8 and 5.9.)

4.0 Miscellaneous Provisions

4.1 Jurisdiction - These regulations shall have force and effect within the area
defined as the coastal zone in Part 3.0. Such area is further described in the
Boundary Appendix.

4.2 Severability - If any provision of these regulations or the application
thereof is held to be invalid by a court of competent jurisdiction, such
invalidity shall not affect other provisions or the application of any part of
these regulations not specifically held invalid, and to this end the provisions
of these regulations are declared to be severable.

4.3 Amendments to These Regulations and the CZM Plan

a. These regulations may ben amended from time to time by the Secretary in
accordance with the applicable provisions of the APA. At least once each
year and following any major changes in the CZM Program or in the CZMA,
the Secretary may review these regulations and determine whether they con-
tinue properly to fulfill their purposes and the requirements of applicable
legislation.

b. Minor amendments to the CZM Program shall include, but not be limited to,
changes in the CZM maps, changes in the text, relatively insignificiant or
non-controversial changes in the policies and the annual up-dates of the
Regional Chapters as prepared by the Regional Citizen Advisory Councils.
Notice of such changes shall be published in the Environmental Monitor
and given to each rcTMher of the Regional Citizen Advisorv Councils,

349

the Governor's Advisory Council and to NOAA. If the CZM Office has
not been notified of any objection to the amendments within 30 working
days of the postmark of the notice to the NOAA, and there have been no
objections from the pulic or the Advisory Councils, the amendments
shall become effective. The APA shall be compiled with when applicable.

c. Major amendments to the CZM Program shall include fundamental changes
in the CZM Policies or the management framework. These changes shall
be discussed at the Regional Advisory Council meetings, at the meet-
ings or the sub-committee meetings of the Governor's Advisory Council
and with NOAA. Notice of the proposed amendments -shall be published
in the Environrmental Monitor. A public hearing may be held. A minor
amendment which becomes controversial may be deemed a major amendment.

d. These regulations may be amended to reflect (b) or (c) amendments
during the Secretarial review pursuant to Section (a).

Commentary

Subsections (b) and (c) parallel NOAA's amendment provisions, see
15 CFR 920.57.

4.4 Delegation of Authority - Generally whenever the Secretary is to assume
some duty or perform some function in these regulations, she may appoint
a representative or designee to assume such duty or perform such function
in her name.

4.5 Number and Gender - Words imparting the singular number may extend and
be applied to several persons or things, words imparting the plural number
may include the singular, words imparting the masculine gender may include the
feminine and neuter, words imparting the feminine gender may include the
masculine and neuter, and words imparting the neuter may include the masculine
and the feminine.

4.6 Advisory Rulings - Upon the request of any interested person, the Secretary
may make an advisory ruling as to the interpretation or the applicability of these
regulations to any person, property or state of facts. In issuing the advisory
ruling, the Secretary may comply with the requirements of Section 8 of the APA,
but need not comply with other sections regarding regulations.

4.7 Midstream Projects - These regulations shall not apply to any project
(1) for which, as of January 1, 1978, an application for a permit has been
received by any EOEA agency, or (2) for which an application for financial
assistance has been received by any EOEA agency prior to January 1, 1978. These
regulations shall apply to applications for the renewal or reissuance of permits
unless a categorical concurrence has been issued. An application shall be the
good faith completion of all forms and the submission of sufficient information
to enable the agency considering such application to make its decision on
the permit or financial assistance request.

4.8 Waiver - The Secretary or the Director may waive any provision or requirement
in these regulations not specifically required by state or federal law when in their
judgement strict compliance with such provision or requirement would result

350

in an undue hard.fp and .weuld not serve to minimize or avoid damage to the
environment and in the case of public notice requirements would not be necessary
to provide a substantially similar audience of adequate notice in fact.
Hardship stemming from a delay in compliance with the law or regulations by
the person requesting the waiver will normally not be a sufficient reason for
granting such a waiver.

4.9 Effective Date - These regulations shall become effective upon their
promulgation pursuant to G.L. c. 21A, or April 13 1978, whichever is sooner.

351

5.0 Establishment of the Coastal Zone Management Office and Adoption of the
CZM Plan - There shall be established in the Office of the Secretary a CZM
Office to be administered by a Director. The Office and the Director shall
take such actions in furtherance of the CZM Program and Policies as the Secretary
may direct.

Commentary

Pursuant to Chapter 21A, Section 6, the Secretary may appoint such
experts as he shall deem necessary to perform the functions of her office.

5.1 State Environmental Policy - State Environmental Policy shall mean those
statements of environmental policy contained in:

a. Article 49 of the amendments to the Constitution of the Commonwealth
as amended by Article 97 of the amendments to the Constitution of
the Commonwealth;

b. Any environmental statute passed by the Legislature; or

c. Statements of environmental policy promulgated by regulation by
the Secretary or any agency within EOEA.

5.2 Adoption of the CZM Policies; Implementation of the CZM Program - Consis-
tent with the requirements under Chapter 21A, Section 2 through 4,to conduct
comprehensive planning with respect to the functions of EOEA; to coordinate and
improve program activities within EOEA; to implement programs jointly agreed to
by the Secretary and EOEA agencies; to serve as the primary agency of the Com-
monwealth for environmental planning; and to carry out the state environmental
policy including policies relating to Areas of Critical Environmental Concern,
the policies of Section 5.3 and the Policy Appendix are hereby Dromulgated as statements
of the state environmental policy for the coastal zone, and these regulations
are hereby adopted in order to implement the CZM

5.3 The CZM Policies - The CZM Policies are in two groups -- regulatory and
non-regulatory. The non-regulatory policies shall include policies regarding
state financial assistance and direct state actions. In the coastal zone, the
state environmental policy shall be, but need not be limited to, the policy
to:

a. Regulatory Policies

(1) Protect ecologically significant resource areas (salt marshes,
shellfish beds, dunes, beaches, barrier beaches, and salt ponds)
for their contributions to marine productivity and value as
natural habitats and storm buffers;

(2) Protect complexes of marine resource areas of unique productivity
(Areas for Preservation or Restoration (APR s)/Areas of Critical
Environmental Concern (ACEC's), ensurethat activities in or
impactirng sa.c! complexes are designed and carried out to minimize
adverse effects on marine productivity, habitat values, water
quality and storm buffering of the entire complex;

352

(3) Support attainment of the national water quality goals for all
waters of the coastal zone through coordination with existing
water quality planning and management activities. Ensure that
all activities endorsed by CZM in its policies are consistent
with federal and state effluent limitations and water quality
standards;

(4) Condition construction in water bodies and contiguous land
areas to minimize interference with water circulation and
sediment transnort and to preserve water quality and marine
productivity. Approve permits for flood or erosion control
projects only when it has been determined that there will be
no significant adverse effects on the project site or adjacent
or down coast areas;

(5) Ensure that dredging and disposal of dredged material minimize
adverse effects on water quality, physical processes, marine
productivity and public health;

(6) Accommodate off-shore sand and gravel mining needs in areas and
in ways that will not adversely affect marine resources and
navigation;

(7) Encourage the location of maritime commerce and development in
segments of urban waterfronts designated as port areas. Within
these areas, prevent the exclusion of maritime dependent indus-
trial uses that require the use of lands subject to tidelands
licenses;

(8) For coastally dependent energy facilities, consider siting in
alternative coastal locations. For non-coastally dependent
energy facilities consider siting in areas outside of the
coastal zone. Weigh the environmental and safety impacts of
locating proposed energy facilities at alternative sites;

(9) a. Accommodate exploration, development and production of
off-shore oil and gas resources while minimizing impacts
on the marine environment, especially with respect to
fisheries, water quality and wildlife, and on the recrea-
tional values of the coast, and minimizing conflicts with
other maritime-dependent uses of coastal waters or lands.
Encourage maritime-dependent facilities serving supply,
support or transfer functions to locate in existing
developed ports;

b. Evaluate indigenous or alternative sources of energy (coal,
wind, solar and tidal power) and off-shore mining to mini-
mize adverse impacts on the marine environment, especially
with respect to fisheries, water quality, and wildlife, and
on the recreational values of the coast;

353

(10) All development must conform to existing aDolicahle stmte and
federal requirements governing sub-surface waste discharges,
sources of air and water pollution anr protection of inland
wetlands;

(11) Support designation of scenic rivers in the coastal zone.
Support designation of Areas for Preservatiorf or Restoration as
"sign-free areas";

(12) Review proposed developments in or near designated or registered
historic districts or sites to ensure that federal and state
actions and private actions requiring a state permit respect
their preservation intent and minimize potential adverse impacts;

(13) Review developments proposed near existing public recreation
sites in order to minimize their adverse impacts;

b. Non-Regulatory Policies

(14) Encourage and assist commercial fisheries research and develop-
ment, restoration and management of fishery resources, develop-
ment of extensive and intensive aquaculture and enhancement of
anadromous fisheries initiated at local, state and federal
levels;

(15) Ensure that state and federally funded public works projects
proposed for location within the 100 year coastal floodplain
will:

a. not exacerbate existing hazards or damage natural buffers,

b. be reasonably safe from flood and erosion related damage,
and

c. not promote growth and development in damage prone or buffer
areas, especially in undeveloped areas of APR's;

(16) Encourage acquisition of undeveloped hazard prone areas for con-
servation or recreation use, and provide technical assistance for
hazard area zoning and mitigation of erosion problems;

(17) Provide funding for protection from tidal flooding and erosion,
emphasizing the use of non-structural measures where feasible;

(18) Encourage,through technical assistance and review of publicly
funded development, compatibility of proposed development with
local community character and scenic resources;

(19) Promote the widest possible public benefit from channel dredging,
ensuring that designated ports and developed harbors are given
highest priority in the allocation of federal and state dredging
funds. Ensure that this dredging is consistent with marine envir-
onment policies;

354

(20) Encourage through technical and financial assistance expansion
of water dependent uses in designated ports and developed harbors,
redevelopment of urban waterfronts and expansion of visual access;

(21) Improve public access to coastal recreation facilities and
alleviate auto traffic and parking problems through improvements
in public transportation. Link existing coastal recreation sites
to each other or to nearby coastal inland facilities via trails
for bicyclists, hikers and equestrians, and via rivers for
boaters;

(22) Increase capacity of existing recreation areas by facilitating
multiple use and by improving management, maintenance and public
support facilities. Resolve conflicting uses whenever possible
through improved management rather than through exclusion of
uses;

(23) Provide technical assistance to developers of private recrea-
tional facilities and sites that increase public access to the
shoreline;

(24) Expand existing recreation facilities and acquire and develop
new public areas for coastal recreational activities. Give high-
est priority to expansions or new acquisitions in regions of high
need or where site availability is now limited. Assure that both
transportation access and recreational facilities are compat-
ible with social and environmental characteristics of surrounding
communities;

(25) Encourage energy conservation and the use of alternative sources
such as solar and wind power in order to assist in meeting the
energy needs of the Commonwealth;

(26) Ensure that state and federally funded transportation and waste-
water projects primarily serve existing developed areas, assign-
ing highest priority to projects which meet the needs of urban
and community development centers; and

(27) Encourage the revitalization and enhancement of existing develop-
ment centers in the coastal zone through technical assistance and
federal and state financial support for residential, commercial
and industrial development.

5.4 The Policy Appendix - The Policy Appendix elaborates upon the intent of
the CZM Policies contained in Section 5.3 and provides direction for those EOEA
agencies primarily responsible for their implementation. All appropriate EOEA
agencies including the Office of the Secretary shall implement the CZM Policies
contained in Section 5.3 and the policy direction in the Policy Appendix and
shall so enforce their laws, process regulatory reviews, conduct program activi-
ties, disburse funds, construct works, supervise the construction of works or
otherwise administer their programs in the coastal zone, except as provided by
Section 5.6.

355

5.5 Other CZM Materials

a. The materials knoijn as the CZM Program, such as the FEIS and FEIR,
Volumes I and 11 of the draft CZM Program and other guidelines, mem-
oranda of understanding or other materials prepared to implement, inter-
pret or otherwise effectuate the CZM Policies shall not carry the full
weight and force of law unless adopted by properly promulgated regula-
tions. However, they may be relied upon by EOEA agencies to the extent
they reflect the CZM Policies of Section 5.3 and may serve as guidance
in implementing the CZM Policies.

b. In the case of a conflict between the CZM Policies and the CZM Program
or other CZM materials, the CZM Policies shall govern.

5.6 LegallyImpermissible Actions - No EOEA agency shall apply a CZM policy
where to do so would require it to take an action impermissible at law.

Commentary

As explained in the Management Chapter of the Draft CZM Program, the discre-
tionary authority of the EOEA agencies range from being very broad to being
ministerial. The extent to which the CZM Policies, as a statement of the
state environmental policy, operate to affect the decisions of the EOEA agen-
cies is determined by reference to the scope of authority under each EOEA law.
This regulation does not compel any EOEA agency to take an ultra vires action.
It does require all appropriate EOEA agencies to apply CZM Policies when they
take a lawful action in the coastal zone. As examples, where an agency's
scope of discretion is very broad, and it can balance the public good vs. the
private good, it can determine that a heavy industrial facility may not be
placed next to a public recreation area. Where an agency has been specifically
directed to protect an area for its flood damage prevention and fisheries
values and where the CZM Policies and the standards of the HUD Flood Insurance
Program call for structures to be placed on pilings, then those conditions
can be imposed. However, if aesthetic concerns are not addressed by the
enabling statute, then the agency could not require that the structure be
painted in earth-tone colors rather than red, white and blue stripes. Further,
if the CZM maps erroneously show an area to be a marsh, when in fact it
is not and to follow the CZM Policies would then be an unlawful exercise of juris-
diction, this exception allows agencies to make such minor deviations from the
letter of the CZM Policies. As is laid out in the Performance Evaluation Section
8.0, one of the issues to be addressed by that evaluation process will be
whether or not the agency consulted with the CZM Office prior tB determining
to proceed with an action inconsistent with a CZM Policy, allegedly because
acting consistently with the CZM Policy would then have been impermissible at law.

5.7 Procedures for Implementing the CZM Policies

a. All appropriate EOEA agencies shall review and if necessary
prepare amendments to their regulations, administrative procedures,
standards and criteria so as to incorporate the Policies contained
in Settion 5.3 and the Policy Appendix to the extent permissible at
law.

356

b. In any cijudicatorv proceeding or other occasion when the ei-gh to
be accoried to a CZM Policy is at issue, the CZM Policy shall be
dispositive. This provision shall mean that the CZM Policies shall
govern to the fullest extent permissible at law in the resolution of
all disputed findings of fact and questions of law involving coastal
matters.

c. All appropriate EOEA agencies may also enter into Memoranda of Under-
standing with the Secretary and/or other appropriate EOEA agencies
in order to jointly implement this program. Such Memoranda may
detail the ways in which specific programs will function, may pro-
vide for in-serve training of agency staff or continuing assistance
by the CZM Office or other EOEA agencies in order to aid agencies in
implementing the program, may agree to seek the assistance and direc-
tion of the Secretary in resolving any administrative or jurisdictional
conflict or may include such other matters as may expedite the coordinated
implementation of the CZM Program by all appropriate EOEA agencies.

d. In order to ensure that appropriate EOEA agencies fulfill their respon-
sibilities under this regulation and to expedite efficient and consis-
tent administration of their laws, such agencies are encouraged to pre-
pare memoranda for the file, issue advisory rulings or otherwise com-
pile a body of administrative findings relative to their statutory
authority with reference to the CZM Policies. Such body of adminis-
trative actions shall be for the purpose of clarifying or interpreting
CZM Policies in relation to that agency and for the purpose of building
a body of precedential agency actions for consistent decision-making
and public knowledge. The agencies are encouraged to work with the
CZM Office and the Office of the Attorney General as needed. Such
memoranda, rulings or findings shall be made available for public inspec-
tion or distributed as the EOEA agencies deem proper.

5.8 Regional Advisory Councils

a. Regional Advisory Councils on Coastal Resources shall be established
by the Secretary. Such Councils shall be composed of a representa-
tive from each town in the coastal zone in that region who shall be
appointed by the local Board of Selectmen or mayor and representative
of regional user groups who shall be appointed by the Secretary.

b. The Regional Advisory Councils shall generally advise the Secretary
on the CZM Program as it is implemented in the region. Additional
functions will, at the Council's option, include:

(1) Annual Review: Annual review and reporting to the CZM Office on
the applicability of the respective regional chapter and the sug-
gestion of revisions where necessary.

(2) Quality Control: Helping to insure overall quality control in
the CZM Program. The Councils may review on a periodic basis the
state's regulatory and management programs as they relate to their
respective region for quality and consistency with the CZM Policies.

(3) Observat:ion: Serving as local contacts within the region, alerting
the regional environmental engineer and the Director to problems
and issues in the region.

357

(4) Priority Setting: Advising in the setting of priorities in the
allocation of technical-assistance funding for the region
should requests for funds exceed available supplies.

(5) Conflict Resolultion: Serving as a forum for discussion and a
central point for the collection of information and ideas
should problems or conflicts occur between communities.

(6) Monitoring: Monitoring the coordination of activities by local,
state and federal government programs in the coastal zone and
recommending changes or amendments in the CZM Program or Policies.

5.9 The Governor's Advisory Council on Coastal Resources

a. The Governor may establish the Governor's Advisory Council on
Coastal Resources by Executive Order. Its membership shall not be
geographically representative but shall include representatives of
state-wide user groups, both coastal and inland, who shall be
appointed by the Governor.

b. The Governor's Advisory Council shall generally advise the Governor
and the Secretary on the CZM Program as it is implemented state-wide.
Additional functions will, at the Council's option, include:

(1) Advisory Planning: Advising the Director and the Secretary on
the implementation of the CZM Program. As planning continues
on erosion problems, recreation, and various aspects of OCS oil
and gas exploration and development, this group may help to
evolve state planning efforts.

(2) Quality Control: Working with the Director on a periodic
review of environmental regulatory and management functions to
insure adequacy and consistency in the application of the CZM
Policies.

(3) Priority Setting: Advising the Director and the Secretary on the
setting of priorities for CZM Office funding of local and state
agencies and for overall program objectives and goals.

(4) Education: Working to ensure development of long-term education
programs to foster a state coastal ethic.

(5) Management: Reviewing the CZM Program on an on-going basis and
recommending changes to the Secretary. This group may advise the
Secretary on questions of amendments to the CZM Policies.

(6) Review: Performing for the Secretary an annual independent review
of the CZM Program.

b. If the Governor shall fail to establish this body, the Secretary shall
establish it and appoint its members in Dccordance with (a)

Commentary

Please refer to the definition of user groups.

358

6.00 Procedures for Actions in the Coastal Zone

6.10 Role of EOER Agencies - The appropriate EOEA agencies shall be the pri-
mary agencies responsible for the implementation of the CZM Program. Except as
provided by this regulation, projects conducted by appropriate EOFA aiencies
shall follow the standard procedures established by those agencies, including
any modification in those proceduresto expedite implementation of the CZMi Program.
Requests for permits or state financial assistance (non-CZD Office funding) should
thus be addressed to the appropriate EOEA agency and not to the CZM Office.

6.20 Resolution of Conflicts in the Coastal Zone - Wthenever an administrative
or jurisdictional conflict exists between any two (or more) EOEA agencies or
where programs are jointly administered by the request of any agency, and a
conflict results in the course of their administration, the Secretary has the
power and duty to resolve such conflicts under Chapter 21A, Section 4.

6.21 Instancesof Inter-Agency Conflicts - Instances of conflicts between EOEA
agencies in which resolution may be appropriate include:

a. Subject matter jurisdictional conflicts;

b. Actions by one agency impinging upon the statutory responsibilities
of another agency;

c. Issues as to how to enforce a particular law or program;

d. Questions about how funding should be allocated;

e. Questions about how priorities should be established for agencies
or programs; or

f. Issues as to the interpretation or application of a policy adopted
by the Secretary, whether as applied to a particular site or as con-
trasted with another policy, and specifically for the coastal zone,
whether or not a proposed EOEA action is consistent with the CZM
Policies.

Commentary

Section 6.21(a) intends to encompass situations where two different la,;rs
each give two different agencies responsibility for the same project or area.

Section 6.21 (b) addresses situations where an action by one agency could
have the potential for undercutting, interfering with, duplicating, or being
inconsistent with, the actions or programs of another agency. It is sufficient
if another agency has expertise or concern in an area; it is not neces-
sary for both to have regulatory powers. For example, if one EOEA agency has
been funding a shellfish management program in an area, it would be inconsistent
for another EOEA agency to dredge these beds. Rather than have both auencies
co2irjnue to pursue their orwn course, this mechanism is designed to enable the
Secretarxy with appropriate public input, determine the best course for state
actions in that area.

359

6.22 Initiation 7 Conflict Resolution Mechanism - When any EOEA agency feels
that a conflict mayv exist with another EOEA agency regarding a project in the
coastal zone, that agency shall communicate its concerns to the Secretary or
her designee. An issue identification session shall be arranged.

6.23 Issue Identification Session - An issue identification session shall be
held informally but shall include any appropriate administrators named by
the Secretary. If the action is in the coastal zone but the CZM Office was not
an objecting agency, it shall be presumed to be an appropriate agency, but it
may withdraw after its onl evaluation of the conflict.

The purpose of the session is to clarify issues, isolate matters of con-
cern, resolve matters which are not of concern, to re-evaluate the posi-
tions of the agencies and to informally resolve the conflict.

6.24 Formal Statement of Issues, Resolution Without Hearing - If it is deter-
mined that a conflict does exist, a formal statement of the issuesmay be pre-
pared, based in part or in full upon material presented at the issue identifi-
cation session. The statement shall set forth the matters to be resolved by
the Secretary. The Secretary, at her discretion, shall then take such action
as may be appropriate to resolve the conflict, except when Section 6.25 applies.
If the Secretary determines that it shall be appropriate to call a public hear-
ing, a formal statement of issues shall be prepared, notice shall be sent to
those persons or agencies listed in Section 6.25(b) and the procedures of
Sections 6.25(c), (d), and (e) shall be followed.

6.25 Hearings - In all cases when the legal rights, duties or privileges of
specifically named persons are to be determined, as established by the
APA, such persons have a right to request a hearing and
any ten citizens of the Coimnonwealth have the right to intervene in such pro-
ceeding, pursuant to G.L. c. 30A, s. 10A. In such situations, the following
procedures shall be followed:

a. The named person shall be informed by the Office of the Secretary
that following initial review (Section 6.23) by the appropriate
EOEA agencies, it was determined that a conflict exists concerning
the proposed action. The named person shall be informed as
specifically as possible of the nature of the conflict, that the
Secretary will resolve the conflict, and that such person has a right to
request a formal adjudicatory hearing. If the Office of the Sec-
retary does not receive a request for a hearing within 20 days of
the mailing of such notice to the specifically named person, then
that person will be deemed to have waived his right to a formal
hearing, and the Secretary shall proceed to resolve the conflict
pursuant to Section 6.24. At the option of the named person or an
intervenor, an informal session or prehearing conference may be held
before any formal hearing or in place of any formal hearing.

b. Should the specifically named person request a hearing, notice of the
hearing shall be issued by the Office of the Secretary. It shall be pub-
lished in the Environmental Monitor and sent to the specifically
named person, to any town planning board, conservation commission or
other goverre-rntal agency, or to such interested individuals as the
Secretary may deem appropriate.

360

c. The notice shall include a formal statement of issues based in part
or ir full upon material presented at the issue identification ses-
sion. It may aisc include a call for more information. It shall
name the time and place of any hearing. It shall also specify the
means that membLers of the public may use to submit their views. The
her-Jng shall not occur less than 21 days following publication of
notice in the Environmental Monitor.

d. A conflict resolution hearing regarding a project in the coastal zone
shall be a management program decision pursuant to Section 6.60-6.69
of these regulations concerning local government consultation. No
statement of findings shall be issued by the Secretary less than 37
days from the publication of notice in the Environmental Monitor,
unless local governments comment or indicate that they waive their
right to comment before 37 days have elapsed.

e. The Secretary shall issue a statement of findings following the hear-
ing which shall be published in the Environmental Monitor and sent
to the persons and agencies identified under Section 6.25(b).

6.26 Effects of Conflict Resolution - Whether the issue is resolved under the
procedures of Section 6.23, 6.24 or 6.25, the following shall apply:

a. By virtue of Section 5.5 of these regulations and by the requests of
EOEA agencies to the Secretary to jointly implement the coastal zone
management program, the CZM policies are binding upon the Secretary
and the EOEA agencies as limited by Section 5.6.

b. Following the resolution of the conflict, agency actions shall be con-
sistent with the findings of the Secretary.

c. If the Secretary makes a finding contrary to the CZM Policies and a
statement of findings has not been prepared because there was no
hearing, the named person, other interested parties, any named EOEA
agency, or the Director may request, and the Secretary shall provide,
written reasons as to why CZM Policies were not applied.

Commentary

While this authority and these procedures could be applied to any issue
arising within the Secretariat, these regulations are limited to resolving
issues arising under the CZM1 Program.

6.27 Agency Hearings

a. When the issue to be resolved is the consistency of the agency's
actions in relation to the CZM Policies or when the
agency has agreed to jointly implement the CZM Program and the
agency has, pursuant to its enabling legislation, made certain find-
ings of fact based upon the substantial sieight of the evidence after
an adjudicatory hearing or opportunity for a hearing, the Secret-ery

361

shall not set aside the findings of an agency that are consistent
with the clear weight of the evidence,but she may set aside findings
when, after investigation, she determines that the agency did not
adequately address the issues apply the criteria required by the
CZM Policies or give adequate weight to the evidence or policies of
other EOEA agencies.

b. If the CZM Policies are in conf2ict as applied, the Secretary shall
determine which policy shall prevail.

Commentary

The authority of the Secretary to resolve conflicts stems from Chapter
21A, Section 4(1). In addition, the Memoranda of Understanding with the Conm-
missioners triggered Section 4(2) of 21A which enables the Secretary to jointly
implement the CZM Program at their request.

It is also anticipated that many issues will be resolved pursuant to
Sections6.23 or 6.24 because they will involve internal administrative issues,
such as priority areas for agency action, or divisions of responsibility among
programs, and not permit decisions.

6.28 Time Limit - The Section 6.25 procedures shall not take more than 45 days
after the publication of the notice in the Environmental Monitor unless they are
stayed by agreement of the other parties of the hearing and the named party.

6.30 Proceedings Conducted by EOEA Agencies - The Director or his designee
shall have the right to be notified in advance of all proceedings affecting the
coastal zone or otherwise affecting any of the CZM Policies, in order that the
Secretary, the Director or a designee may appear as an expert witness, may
intervene as an interested party, or may otherwise submit comments to the EOEAR
agency. For the purposes of this Section and Section 6.31, the Secretary here-
by designates the Director as her designee.

6.31 Right of Appeal - Unless otherwise forbidden by law, the Secretary or any
EOEA agency shall have the right, where a right of appeal to a hearing exists
for other interested parties or permit applicants, to request an appeal or hear-
ing of any action taken by an EOEA agency regarding an projectwithin the coastal
zone, affecting the coastal zone, or otherwise affecting any of the CZM Policies.
The CZM Office shall, in all cases, be bound by the procedures of the EOEA agency.

Commentary

These sections make clear that the CZM Office shall have the right to
intervene in EOEA agency proceedings or standing to request a hearing whenever
EOEA agencies are conducting or evaluating projects within or affecting the
coastal zone. The intention of these sections is to integrate the CZM Program
directly into existing EOEA procedures and thus to obviate resort to thle con-
flict resolution mechanisms.

362

6.40 Procedures flr Designation of an Area of Critical Environmental Concern
within the Coastal Zone - The following procedures shall apply to the process
of designating Areas of Critical Environmental Concern within the coastal zone,
pursuant to Chapter 21A, Section 2(7), which charges the Secretary and the EOEA
agencies to develop statewide policies regarding the acquisition, protection
and use of Areas of Critical Environmental Concern to the Commonwealth.

6.41 Purpose - Sections 6.40 - 6.55 are promulgated in order to implement
Chapter 21A, Section 2(7).for the coastal zone and to comply with the require-
ments of the CZMA.

Commen tary

Section 306(B)(9) of the CZMA, 16 U.S.C. 1455, requires that the CZM
Policies contain procedures whereby specific areas may be designated for the
purpose of preserving or restoring their conservation, recreational, ecological,
or aesthetic values. After discussion by the Citizen Advisory Committees,
the CZM Program contains ten proposed areas. The Coastal Atlas shows them in
blue on the maps. Pursuant to the procedures outlined in this regulation, the
CZM Office will nominate these areas for possible designation as Areas of
Critical Environmental Concern. The effects of such designation are described
in Section 6.51. For federal purposes, these areas proposed as Areas for
Preservation or Restoration (APR's) are also proposed as Areas of Critical
Environmental Concern.

6.42 Nominations for Designation - The Secretary shall consider designating an
Area of Critical Environmental Concern within the coastal zone upon a nomination
by:

a. Any ten citizens of the Commonwealth;

b. The Board of Selectmen, the town Planning Board, or the Conserva-
tion Commission of any town which would be affected by the desig-
nation;

c. The Secretary or any EOEA agency; or

d. other state agencies, Regional Planning Agencies, the Governor,
or a member of the General Court.

6.43 Nominations - Nominations should include summary information regarding
the resources of an area, a suggested boundary of the area and a general des-
cription of the advantages that would be achieved through designation and sub-
sequent management of the area. The area so nominated shall be delimited on
an 82 x 11" sectLons of a U.S.G.S. 7� minute, 1:24,000 scale map or on the
appropriate map from the Coastal Atlas. If the features of the area cannot
be clearly shown on the above maps, maps, diagrams or sketches at a larger
scale should be included.

6.44 Coastal Resource Areas - Areas eligible for nomination as Areas of
Critical Environmental Concern within the coastal zone shall include at least 5 of
the following SRA's: barrier beaches, dunes, beaches. salt marshes, shellfish beds,

363

salt ponds, estuaries, coastal embayments, floodplains, anadromous fish runs,
erosion areas, historic sites and districts or public recreational beaches.

Commentary

The reason that an area must contain at least five of the listed charac-
teristics is to preclude the consideration of areas that are of less than state-
wide importance. This threshold was established as being indicative of a sig-
nificant ecological system with critical interrelationships between its com-
ponents. In addition, in order to preserve or restore these areas as intended
by their designation (as opposed to other special areas where development is
encouraged), they must have a very high number of-natural attributes. It is
not the intention of the designation to remove these areas from public enjoy-
ment or use. Areas which also have recreational, historic or scenic attributes
are welcomed nominations. Human activities which can be conducted without
adversely affecting the qualities of the area are encouraged. A basic function
of this designation is to coordinate and focus EOEA programs (such as water pollu-
tion control, acquisition, wetlands, MEPA, CZM etc.) with federal pro-
grams and to encourage local agencies to act consistently with the state's
concern for their valued resources.

6.45 Further Information - The Secretary may request such additional informa-
tion from the party nominating the area or from other sources as would assist her
in making the finding set forth in Section 6.49.

6.46 Further Information - The Secretary shall evaluate the nominations and
may decide either to decline to designate the area or to proceed with a full
review of the nominated area. The Secretary shall inform the nominating party
of the results of this decision within 45 days of receiving the nomination or
such additional information as she may request under Section 6.45, whichever
is later.

6.47 Public Notice/Public Hearing - Before designating an area, the Secretary
shall hold a public hearing. The hearing must be held within 25 miles of the
area nominated or at the nearest location where a suitable facility exists.
Public notice of the hearing shall be published by the Secretary not less than
30 days before such hearing in the Environmental Monitor. Notice shall also
be published in a newspaper of general circulation in the vicinity of the
nominated area under nomination and in any appropriate trade, industry, informational,
or professional publications. Such notice shall be mailed to the appropriate
Boards of Selectmen or Mayors, Planning Boards, Conservation Commissions, and
any interested citizens or organizations which have come to the attention of the
Secretary. Such notice shall include a citation of the authority under which
the designation would occur, a summary of the reasons proposed for such a
designation, the time and place of the hearing, and the method by which
members of the public may make their views known. A map of the area to be
designated may be included.
Commentary

These hearings are intended to be legislative, not adjudicatory.pro-
ceedings. Members of the public are invited to present their views, but since
no individual rights of named people are involved, appearances by attorneys
are unnecessary.

364

6.48 Designation - The Secretary shall consider the following factors in decid-
. ing whether or not to designate an area. These factors need not be weighed
equally, nor need they all be present in order to designate an area. However,
areas which posses's many significant resources (as listed in Section 6.44),
are characterized by a high number of the following factors or which are
exceptionally important in terms of one of the following factors may be given
priority over other nominations.

Public.Health, Inappropriate Use: Future development of the area potentially
may threaten the public health, safety, or iielfare because of: pollution
of the water supply; pollutants introduced indirectly through the food
chain; landform alterations which adversely affect land stability and/or
natural protection; existing natural hazards; other direct or indirect
effects which vary with the potential uses.

Quality of the'Area: The area possesses outstanding natural character-
istics such as: high or potentially high water quality; undeveloped or
unaltered land and water; healthy indigenous trees and/or grasses; rec-
reational opportunities.

Productivity: The area is unusually rich in nutrients serving as a food
source for or hosting a high diversity of finfish, shellfish or waterfowl.

Uniqueness of Area: The area is unique or unusual from a regional or
national perspective. Uniqueness will apply to: endangered plant and
animal species; geologic features; archeological/historic/cultural
features; other resources of educational value.

Irreversibility of Impact: The area has resources or characteristics
which are potentially exhaustible or so fragile that alterations may
have irreversible consequences. Irreversibility of impact will be
assessed based on such factors as: the dependence of natural systems
on groundwater; the tolerance of animals and habitats to pollutants;
the degree of interdependence of ecosystems; and the sensitivity of
species to changes in the salinity balance.

Imminence of Threat to the Resource: The area is subject to imminent
threat such as: current proposals for major private development pro-
jects; plans for major new public infrastructure developments such as
sewers, water systems, roads; or regional growth trends.

Economic Benefits: The area has intrinsic values which are important to
a region's economic stability. Such values include: recreation, tourism,
fisheries development, and water supply.

Supporting Factors: The area has other factors which facilitate preserva-
tion or restoration. Such factors may include: strong public consensus
on the intrinsic value of the area; legislative identification of the
value of the resource; public awareness of the importance of the area; the
lack of coordinated local control because the area is contained within
more than one town; ownership of some or all of. the resource by the local,
state, regional or federal government; or the existence of supplementing
management programs in the area.

365

Commen tary

These factors are provided in order to focus the scope of the Secretarial
inquiry into the value of the area. While the more factors that an area
possesses may well influence the need for its designation, the strong presence
of any single factor (for instance, public health or an imminent threat to the
resource) may well given an area a high priority for immediate Secretarial
attention.

6.49 Secretarial Finding - Based upon her review of the factors listed in Sec-
tion 6.48, or information presented by the nominating party at the public hear-
ing, the Secretary may find that the area is one in which an otherwise insignif-
icant impact could become significant and thus may designate it an Area of
Critical Environmental Concern.

6.50 Notice of Decision - The Secretary shall publish notice of her decision in
the Environmental Monitor within 90 days of the hearing. Failure to provide
such notice shall be the equivalent of a decision not to designate. Written
findings and conclusions shall be available for public inspection at the Office
of the Secretary. In no case shall the decision be made prior to 37 days from
the publication of notice of the hearing.

6.51 Effect of the Designation - The designation shall have the following
effects: (1) Pursuant to Section 5.4 of this regulation, all appropriate EOEA
agencies shall take actions, administer program and/or revise regulations
consistently with this designation, except as described by Section 5.6, in
order to have consistent EOEA policies regarding the acquisition, protection,
Ikd use of areas of critical environmental concern to the Commonwealth. (2)
a resuiLt, 'al state agencies, offices-, departments, etc., outside of the
EOEA and entities apart from the state govermnent shall be affected by the
designation insofar as they require a permit from an EOEA agency, provide
financial assistance for projects with state funds, conduct a direct action
with state funds, or otherwise fall under the environmenal disclosure provi-
sions of MEPA and its implementing regulations. (3) For federal purposes, any
area which has been designated by the Secretary as an Area of Critical Environ-
mental Concern. and lies, in whole or in part, within the coastal zone shall be
considered an Area for Preservation or Restoration (APR) as described in Sec-
tion 306(c)(9) of the CZMA and 15 CFR 923.16. Pursuant to Section 307(c) of
the CZMA and 15 CFR 930, no federal agency shall conduct, support or permit any
activity in the coastal zone which is inconsistent with the designation.

In reviewing federal activities, federal financial assistance applica-
tiofis or concurring with consistency certifications prepared by applicants,
for actions in areas that have been designated as ACEC's/APR's, the CZM
Office shall use the procedures outlined in Part 7.00 of these regulations.
The CZM Office shall conduct such reviews and issue its concurrence only when
proposed projects are consistent with the "purpose of preserving or restoring
such areas for their conservation, recreational, ecological, esthetic values."

6.52 Timing of Order - The effective date of the designation shall be the
date of publication of the notice of the decision unless the Secretary shall
otherwise provide.

366

Commentary

Refer to Policies 1 and 2 of the Policy Appendix for a summary of the
other EOEA agencies which will coordinate their actions in APR's/ACEC's.

The timing of the Designation Order, when combined with the requirements
of local government consultation provisions and the APA, means that the Order
may not take effect until 7 days after the public hearing if it is held 30
days after the notice of the hearing was published. This 7 day delay decreases
if the hearing is held more than 30 days after public notice so that the Order
may take effect immediately if the hearing is held 37 days or more after public
notice.

6.53 Review of Designations

a. Every four years the Secretary may review the designations to evalu-
ate whether they should be continued, amended, or repealed.

b. After one year from the designation of an area or from the decision
under Sections 6.46 or 6.49 not to designate an area, any of the
parties listed under Section 6.42 may request the Secretary to re-
evaluate her decision. Such requests shall be subject to the provi-
sions of Sections 6.43 - 6.50.

6.54 Effect of Coastal Atlas - The Secretary and the EOEA agencies shall refer
to the Coastal Atlas for guidance in deciding whether to designate an area.

6.55 Mid-Stream Projects - The designation shall not apply to any project:
(1) for which, as of the date of nomination, an application for a permit has
been received by any EOEA agency, or (2) for which an application for
financial assistance has been received by any EOEA agency as of the date of
nomination.

367

6.60 Continuing Consultation Mechanisms with Local, Regional and Inter-
State Agencies and Other State Agencies - This part is promulgated in order
to insure continuing local participation in the CZM program and to meet other
federal requirements.

Comrmentary

This part is promulgated pursuant to sub-sections 23, 16, and 18 of
Chapter 21A, Section 2, which call for EOEA agencies to "advise and assist
local governments, private and public institutions, organizations, and
associations, businesses, industries, and individuals by providing and
acting as a clearinghouse for environmental information, data and other
materials"; to assist other state and regional agencies in developing appro-
priate programs and policies relating to land use planning and regulation in
the commonwealth"; and to "advise, assist, and cooperate with such other de-
partments, agencies, authorities, officials, and institutions.. .as may be
concerned with or involved in matters under their control or supervision";
and Section 306 (c) (2) (b) of the CZAR, which calls for the CZM Plan to
establish "an effective mechanism for continuing consultation and coordination
between the management agency...and local governments, interstate agencies,
regional agencies and areawide agencies within the coastal zone to assure
the full participation of such local governments and agencies in carrying
out the purposes of (CZMA)." The federal regulations for this section appear
at 15 CFR 923.42.

6.61 Notice to CZM by EOEA Agencies - At least 60 days before any EOEA agency
shall implement a management program decision, defined in Section 6.64, it shall
send a notice of such decision to the CZM Office.

6.62 Notice by CZM - Upon receipt of such notice or pending any management
program decision by the Office of the Secretary, the CZM Office shall publish
notice of such pending decision in the Environmental Monitor. The Environmental
Monitor shall be mailed to the following local government agencies: Boards of
Selectmen or Mayors, Planning Boards, Conservation Commissions, and the Martha's
Vineyard Commission.

Commentary

Regional, areawide, interstate and other state agencies which are not
local governments (see definitions) and members of the public are urged to
utilize the public notice function of the Environmental Monitor in order to
comment to the state agency on proposed management program decisions.

6.63 Procedures in Lieu of Sections 6.61 and 6.62 - If an agency already has
procedures for giving public notice of its actions, it may enter into a Memorandtum
of Understanding with the CZM Office in order to meet the requirements of Sections
6.61 and 6.62 through alternative procedures. In order to enter into such a
Memoranduam, the Secretary or tie Director must find that the a]lternative procedures
are as effective in notifyi g a substantially similar audience as the Environmental
Monitor. The CZM Office shall publish notice in the Monitor that it is
considering procedures in lieu of Sections 6.61 and 6.62 and shall not approve
such procedures without allowing 30 days for public corment.

368

Conrrentary

Since the Monitor will be used as the key information vehicle concerning
state and federal actions in the coastal zone, existing forms of notice re-
quired of other agencies (such as publication in the newspaper) may not in fact
be as effective as publication in the Environmental Monitor. But, in order
to minimize the burden on agencies, theCZM Officeis open to alternative suggestions
as long as the local governments do receive effective notice.

6.64 Management Program Decisions - These decisions shall be major state policy
or plan implementation actions and shall include proposals to:

a. adopt Coastal Wetlands Restriction Orders by the Department of
Environmental Management.

b. designate an Area of Critical Environmental Concern in
the coastal zone by the Secretary.

c. designate scenic rivers in the coastal zone by the Department
of Environmental hanagement.

d. take by eminent domain by any EOEA agency of any land in the
coastal zone.

e. purchase by any EOEA agency of any land in the coastal zone
without taking eminent domain action.

f. adopt regulations by any EOEA agency relating to the implementation
of the CZM program, except for the adoption of emergency regulations.

g. amend the CZM Program.

h. announce application deadlines for EOEA grant programs in the
coastal zone.

i. resolve EOEA conflicts pursuant to Section 6.25.

Management program decisions do not include individual permit or regula-
tory actions, issuance of grants by EOEA agencies or construction programs
carried out by EOEA agencies.

6.65 Content of Public Notice of Section 6.62 - The notice shall provide that
the local government may, within the 30-day period commencing on the date of
receipt of the notice, submit to the EOEA agency with a duplicate to the CZM
Office written comments on such management program decision and any recommendation
for alternatives thereto. The notice shall further state that in order to enable
the state to proceed without unnecessary delay, the local government is encouraged
to forward to the state agency and CZM Office a written statement of its willingness
to waive its rights to comment, of its concurrence with the management program
decision or its intention to take actions which conflict or interfere with the
management program decision. In all instances, if no written comments are
received by CZM Office fror.: th local government within 37 days of the publication
of the notice in the Environc-nta] 'Monitor, the local government will be presumed
to have chosen not to comment.

369

2r-.tcntary

It is rec: .-?nded that local governments send comments by certified mail. 0

.66 EOEA Agenacv Procedures

a. Any EO1A agency which receives comments from local governments shall
consider such comments before proceeding with the management program
decision. The EOEA agency may decide to hold a public hearing, unless
it has already held or will hold one. Unless the EOEA agency has received
a written statement from the local government indicating its willingness
to waive its rights to comment, its concurrence with the proposed
decision or its intention to take actions which would conflict or
interfere with the management program decision, the EOEA agency shall
not proceed with the management program decision until 37 days have
elapsed from the date of its publication in the Environmental Monitor.

b. To ensure that the EOEA agency has considered the local corments,it
shall provide a written response to the local government within a
reasonable period of time following the receipt of the local comments.
Such response may include a discussion of the information presented
for the EOEA agency's consideration at the public hearing, if the
initial notice also called for such a hearing; whether or not the
agency has decided to hold a hearing if it had not originally planned
on doing so; other factors, laws or constraints, or the views of
other affected local bodies, members of the public or other agencies
which the agency has also taken into account in reaching its decision;
modifications in the proposed decision which have been made in light
of public comments, including those made by the local government; and
whether or not the EOEA agency is staying the implementation of its
decision for more than 37 days from publication in the Environmental
Monitor in order to receive or consider further public comment.

c. Other statutory standards or requirements of the agency's enabling
legislation or the APA will still be applicable to any management
program decision.

6.67 Local Government Procedures - Local governments may use this comment
mechanism to inform the EOEA agencies whenever a proposed decision conflicts
with existing zoning ordinances, variances, special exceptions, master plans
or official maps. Local governments shall decide that such a conflict exists
only when the EOEA decision is incompatible with or contradictory to such
ordinances, variances, exceptions, plans or maps and not when the EOEA
decision consists of additional or different requirements.

Commrnentary

This section parallels the federal regulations.

370

6.68 Conflict Resolution - EZOEA agencies shall attempt, through informal
consultations, public hearings, additional studies, environmental impact
is statements or other appropriate measures to resolve such conflicts with local
governments. The EOEA agencies shall, however, act consistently with their
responsibilities towards all. citizens of the Commonwealth in providing uses
or services for regional and statewide benefit and shall act consistently
with their existing legislative mandates.

6.69 Notice of Financial Assistance Applications Received and Awards Made

a. Upon the receipt of applications for financial assistance in the
coastal zone, the EOEA agency shall transmit notice of such applications
to the CZM Office for inclusion in the Monitor. Such notice shall
include the applicant's name, the town and type of activity and how
the public may comment. Receipt of a grant application is not a
management program decision but it still shall be made public. Such
notice may be on an individual, annual or periodic basis.

b. When any EOEA agency has decided to grant financial assistance in
the coastal zone, it shall transmit notice of the award to the CZM
Office for inclusion in the Environmental Monitor. The grant award
decision is not a management program decision. Such notice may
be on an individual, annual or periodic basis.

Commentary

Sections 6.64 (h) and 6.69 are designed to give public notice of the
availability of grant monies in the coastal zone and to provide an opportunity
for public comment on applications submitted but not to delay the ability of
the agency to disburse the funding once awards have been made.

EOEA agencies are strongly encouraged to transmit notice of application
deadlines to the CZM Office at the earliest possible opportunity, even
before the 60 day requirement of Section 6.61.

371

7.00 Federal Consistency Procedures - This Part establishes procedures and
policies to lb? utilized by EOEA agencies and the CZM> Office for implementing
the federal consistency provisions of the CZMA, Sections 307, 316 and 317.

Co:wmsnntary

The CZMA establishes the national policy that all actions by federal
agencies - federal licenses or permits, federal assistance, or activities or
projects undertaken by the federal government - must be consistent with approved
state coastal zone management plans.
These regulations have been
prepared to reflect the draft federal regulations.

Since this is the first time that the federal government has sought, in
such a widespread effort, to coordinate its activities and procedures with those
of states, it may require a period of trial and error in order to effectively
coordinate the procedures of both levels of government. It is anticipated that
refinements and amendments to these regulations may be required during CZMA
Section 306 period implementation to reflect working experience with these
procedures. For instance, the categorical concurrence procedures will be used
to eliminate many minor projects,which are consistent with the CZM Policies,
from any CZM Office review.

As is explained in the CZM Program, the goal of the
procedures is to expedite concurrent processing of applications by state and
federal governments, to hold joint public hearings or site visits, and to make
all relevant parties (the applicant, the federal agencies, other EOEA agencies)
aware of how much scrutiny the CZM Office will need to apply in order to
determine the consistency of any project with the CZM Policies.

The CZ1MA establishes four separate categories of federal activities which
have varied standards and procedures. Please refer to the Federal Consistency
chapter of the CZM Program for fuller details. Briefly, the
four types of federal activities are those involving direct actions undertaken
by a federal agency (dredging, land acquisitions); those involving the issuance
of permits; those providing financial support to state or local governments
(grants, etc.); or those regarding activities described in OCS'Plans. The
standard for licenses, OCS licenses, and financial assistance is whether the
activity is one "affecting land or water uses in the coastal zone", whereas
for direct. federal actions it is whether it is one "directly affecting the
coastal zone". For direct actions, the federal agency submits the consistency
notice; for licenses, the applicant submits it; for OCS plans, the person
submitting the OCS plan; for funding applications, the A-95 clearinghouse
serves as the notice vehicle. Direct federal activities must be "consistent
with the CZM Program". This difference is significant under federal law.

372

The fc-. e''i consistenchu part of these regulations (Sections 7.00-7.50)
ut Scri.bsct] . ,' m'edurses w:Cch -:..ill be used in Massach'usetts for the implem4:-,:tatlon
of the feder x-.nnsistencu! r-euirement. In many cases, these regulations
c0se.ly para7! A the lan ?arie of the draft federal regulations. In other rplaces,
thie procedurc:. ;:ique to tl:e Massachusetts CZM Program are described. The federal
_7 :c.?.Ces and I:.-mits provisions (Sections 7.10-7.25) are the most detailed
.._u:ise it is :-.ected t hat many private citizens wio mali not have access to
the federal regulations w�ill use these regulations only. The provisions
relating to d-i-cc federal actions and federally funded assistance, OCS leasinq
ani the conflict resolution procedures are not as detailed, based on the
assumption that federal agencies and anyone involved in the OCS leasing process
cr a dispute with the CZM Office will refer to the federal regulations.

7.130 Procedures for Activities Requiring a Federal Permit

a. When an applicant applies to an EOEA agency for a permit and subparts
(c)(1)(2) and (3) below apply, the EOEA agency shall inform the
applicant that before a Federal agency will be able to grant its license
or permit, the applicant must complete a consistency certification
and the CZM Office must find that the activity is consistent with the
CZM Policies.

b. The EOEA agency shall urge the applicant to complete his consistency
certification at the same time that he submits his EOEA permit
application.

c. Activities affecting land or water uses in the coastal zone require
a consistency certification if:

(1) they will be located in whole or in part within the coastal zone,
and

(2) one or more of Policies 1-13 of Section 5.3 and the Policy
Appendix apply or might apply, and

(3) they will require one of the following federal permits:

U.S. Army Corps of Engineers: Section 404, Federal Water Pollution
Control Act (33 U.S.C.A. 1344), permit for discharge of dredged or
fill materials in navigable waters; Section 10, Rivers and Harbors
Act (33 U.S.C.A. 403-404), permit for obstruction or alteration in
navigable waters; Section 4(f), OCS Lands Act (43 U.S.C.A. 1333(f)),
permit for artificial islands or fixed structures on the OCS; Sec-
tion 9, Rivers and Harbors Act (33 U.S.C.A. 401), permit for con-
struction or modification of bridge structures across navigable
waters; Ocean dumping permits, see EPA below.
Department of Commerce: Section 302(f), Marine Protection,
Research and Sanctuaries Act (16 U.S.C.A. 1432(f)), approval of
activities affecting marine sanctuaries.
Department of the Interior: Section 5(c), OCS Lands Act (43
U.S.C.A. 1334(c)), granting of rights of way for oil or gas
pipelines on the OCS.
Department of Transportation: Section 4 Deepwater Port Act
(33 U.S.C.A. 1]503), license.
Environmental Protection Ajency: Sections 402 and 404 Federal
Water Pollution Control Act (33 U.S.C.A. 1342, 1344), NPDES permit
and ocean dumping activity; Sections 102-304, Marine Protection,
Research, and Sanictuaries Act (33 U.S.C.A. 1412-1414), ocean dtruping
ie"r: !: i.u, In con-itinr�tin -ith ' U.S.. - r, : T.

373

Department of Energy: Section 401. Department of Energy Organi-
zation Act (42 U.S.CA. 7172 (a)(l)(A) and (D)), permit for con-
struction, operation and maintenance of non-federal hvdro-electric
power developments and certificate authorizing natural gas com-
panies to extend, improve or abandon its transportation facilities;
authorization to import or export natural gas (see 15 U.S. 717 et seq.).
Nuclear Regulatory Commission: Section 201, Energy Reorganiza-
tion Act (42 U.S.C.A. 5841 (f)), license for construction and
operation of nuclear power plant.

d. For exceptions to Sections 7.10(a)-(c), see Section 7.23 - Categorical
Concurrences and Section 7.18 - Unlisted Federal Activities or Activi-
ties Outside of the Coastal Zone.

e. In the case of any difference between the procedures of Sections 7.10-
7.25 and any federal regulations implementing Section 307(c)(3)(A) of
the CZDA, these regulations shall govern. In the case of a conflict
between a consistency concurrence with the CZM Policies issued by
Massachusetts and any federal agency, NOAA's conflict resolution pro-
cedures shall govern.

Commentary

The CZM Office strongly urges that applicants commence the federal
consistency process at the same time that the state permitting procedures are
being conducted. This will greatly facilitate coordinated and consistent EOEA
actions and reduce time delays for the applicant. One purpose of the process
described in Sections 7.10 (a)-(c)-7.25 is to provide an applicant with an early
determination of consistency in order to permit federal agencies to initiate
their reviews without delay. Another purpose is to facilitate concurrent
permit reviews at the state level and at the federal level and to
encourage joint site visits or hearings. The federal regulations
encourage such multiple permit reviews.

If an applicant chooses not to file his consistency certification at the
time he initiates the state permit procedures, federal consistency requirements
will still apply, and, pursuant to the federal regulations, the applicant must
submit his consistency certification to the federal agency at the time he submits
the federal permit application. A copy of the certification must be sent to
the CZM Office which has up to six months to concur before consistency with
the CZM policies is presumed. Public notice of the filing of the consistency
certification must also be given; the CZM Office may not issue its concurrence
until the notice requirements are met. Then, the federal agency may act.

374

Under federal law, it is the applicant who must prepare the consistency
certification. It is expected that there will not be a need to create a new
form for the certification; where possible, existing DEQE or MEPA forms will be
used, with the addition of a few questions and a signature line. Applicants
are urged to consult with the CZM Office or the EOEA agency in order to fill
out the certification, to understand the CZM Policies, or to spotlight anticipated
inconsistencies with them. But the completion of the consistency certification
itself is all that is required to trigger early CZM/EOEA review. As stated
above, applicants are strong!u urged to participate in these procedures in
order to expedite the whole state and federal process.

7.11 Consistency Certification: Content

a. The consistency certification must be accompanied by a description of
the type, scale or size of the proposed action, a statement of whether
any public funds are involved or are sought, and the location of the
activity. The activity shall be located on a map of suitable
scale. The applicant shall also identify the proximity of the activity
to the special areas of the CZM Program including,APR's/ACEC's, SRA's and
SADA's,and what CZM Policies are affected.

b. The CZM Office, after consultation with other EOEA agencies, may
prepare guidelines, explanatory material, or more specific requirements
for the preparation of consistency certifications, if existing EOEA
application forms or procedures are inadequate.

c. No proprietary or confidential materials shall be required unless
sufficient protection from public disclosure is provided. However,
the CZM Office may condition or deny concurrence on the grounds of
insufficient information, consistent with the federal regulations.

7.12 Filing - The applicants for an EOEA permit who also file a consistency
certification shall file it with that EOEA agency, The EOEA agency will determine
whether the project qualifies for a categorical concurrence. It is does, no
individual CZM Office concurrence will be required, and the issuance of all
relevant EOEA permits will constitute a finding that the project is consistent
with the CZM policies. If the project does not qualify for a categorical
concurrence, the EOEA agency shall forward the certification to the CZM Office
and proceed with its review.

Commentary

The advantage to applicants in filing their consistency certifications
early is clear; they can receive a prompt and early decision on whether their
activity is consistent with the CZM policies. Failure to file a consistency
certification until after ECEA perm7its are issued could entail significant
delazts if the project isc .lnconsistent with the CZ! policies.

375

7.13 Notice - iUcon receipt of the consistency cert-ification, the CZM Office shall
publish notice in the Environmental Monitor which shall include a su.mmary of
thc proposed activity and its location. The notice shall include a request for
com-lents to be submitted to the CZM Office within 30 days of the publication of
the notice.

7.14 Threshold Determination by the CZM Office

a. Within 10 days of receipt of the consistency certification, the CZM Office
shall determine which of the following categories the proposed activity
falls into:

(1) The activity is one that on the basis of the certification applica-
tion and any other materials readily at hand, can quickly be deter-
mined to require no further CZM coordinated because it is clearly
consistent or inconsistent with, or of no concert to, the CZM Policies.

(2) The activity, either due to its type, scale, location or design,
requires a site visit, technical review, or the submission of more
detailed information in order to evaluate its consistency with the
CZM Policies;

(3) The activity requires a case-by-case analysis in order to determine
its consistency with the CZM Policies;

(4) The activity entails use of federal or state funds and may involve
other federal consistency procedures under Sections 7.30-7.50 or
CZM Policies relating to public funds. It thus could result in
inconsistent or duplicate federal consistency concurrences;

(5) The activity entails other EOEA permits and therefore may involve
duplicate or inconsistent federal consistency concurrences;

(6) The activity is an application from a state agency for a license
and therefore requires either intra-EOEA coordination, inter-agency
coordination, or a potential conflict of interest for an agency
issuing a federal consistency concurrence for itself;

(7) The activity is located in or near an APR/ACEC and therefore would
require in-depth scrutiny by all EOEA agencies; or,,

(8) The activity involves some procedure, use or activity discussed
in a Memoranda of Understanding between the CZM Office and some
other EOEA, state or federal agency and may thus entail special
procedures or other efforts to coordinate processes.

b. Depending upon the decision of the CZM Office under (a), either
Section 7.15 or Section 7.16 shall apply.

376

I,.15 Procedur�-_ _T7en CZM Office Coordination or Act-ion is Not Needed

a. For all those proposed activities for which EOEA agencies are processing
applica-ions for state licenses or permits consistently with the C7Z
Policies and thich do not contain circumstances requiring CZM Office
coordination, the CZM Office shall issue, deny or condition its consistency
concurrence with the federal consistency certification, subject to
whatever conditions may be imposed by the EOEA agency implementing the
CZM Policies. The CZM Office shall send such concurrence to the EOEA
agency. The EOEA agency' shall issue its permit or license together iith
the CZM Office concurrence. Should the rOEA agency deny the licen-se or
permit pursuant to CZM Policies, then the EOEA agency shall likewise inJicate
disagreement with the consistency certification. If the EOEA encyi1 v
denies the permit on grounds other than inconsistency with the CZ'?
Policies pursuant to its own enabling authority, it shall still issue
the CZM consistency concurrence, upon request of the applicanlt.

b. The EOEA agency shall act within its statutory or administrative time-
frame in issuing, denying or conditioning the permit or license. The
CZM Office shall contact the EOEA agency regarding any public comments
received prior to EOEA agency action. Aside from emergeacy actions, no
EMOEA agency may act within less than 30 days from publication of the notice
required under Section 7.13 in the Environmental Monitor.

c. Should later information obtained during the permit review, such as
from public comments, reveal circumstances which would affect the
Section 7.14(a) decision, and therefore may require greater CZM Office
involvement, the CZM Office shall appropriately participate in the
EOEA review, including the issuance of its concurrence or its dis-
agreement with or conditioning of the consistency certification.

7.16 Procedures FWhen CZM Office Coordination or Action is Needed - For those
proposed activities which will require CZM Office coordination, the CZM Office
shall contact the necessary agencies, conduct studies or site visits, or take
other appropriate measures within any statutory or administrative timle limits
of the EOEA agency to assess the consistency of the proposed action with the
CZ1M Policies. At the applicant's request, the CZM Office or the EOEA agency
may inform the applicant and the appropriate federal and state agencies of the
nature of the review, what CZM policies are at issue, and an estimate of the
time needed to evaluate the activity, consistent with the time limits of the
EOEA agency. The CZM Office shall then issue its concurrence directly
with the certification.

Commentary

All consistency certifications will need to come through the CZI.? Office in
order to be published in the Environnm3ntal Monitor (which is also administered
by the Office of the Secretary and located on the sar:ie floor). Th'e: CZ". C;ffic-

377

has iqr'osed a 10 day time limit on itself in order to make the threshold decisions
cried in S zWon 7.14. It is anticipated that ti.e vast majority it projects
iil fall either Into Section 7.14 (a) (1-2) or be categorically exempt. If the
project falls w-ithin subsection (2) and if the EOEA agency has the staff adequate
t? rnake the investigation, the CZM Office will again promptly issue its concurrence.
Thle types of projects anticipated to fall into subsection (2) are those addressed
by those CZM Policies wh4ich require site impact evaluation before consistency
ciJ! be determined. For example, Policy 4 allows private flood and erosion
control projects with no adverse effects on adjacent properties or downcoast
arceJs. Clearly a site review would be needed. But where another EOEA agency
suc.i as DEQE, has to conduct a site review, the CZM Office will not routinely
conduct a second site review.

It is further anticipated that for many of the other cases (subsections 3-8),
the role of the CZM Office will merely be to contact other EOEA or federal agencies
to insure that, within the scope of their authority, the EOEA agencies consider
and are responsive to public comments. For instance, the CZM Office, by working
closely with the CZM coordinator in the DEQE Office, will be able either to
issue its concurrence consistently and concurrently with the DEQE issuance of
the permit or to transmit to DEQE its concurrence as in Section 7.15 (a).

In the case of projects that have major policy implications
involve several, possibly contradictory policies, or are of
such a scale or magnitude that they require a thorough multi-agency review, the
CZM Office will need to be fully involved. Examples are when a non-
water dependent use is proposed for a port area or whcn an activity is proposed
for an APR. Other cases, for instance, -?-ore state and private monies are being
used to provide waterfront redevelopment, might be entirely consistent with CZM
Policiesand thus, the CZM Office's role would be to promote and ease such
actions through the permitting system.

The CZM Office will also be responsible for coordinating with federal agencies.
Special Memoranda of Understanding may be entered into which will relate to
coordinated processing, joint site visits, etc. It will be the CZM Office's
responsibility to contact the EOEA agency and the federal agency in order to
promote such intergovernmental cooperation.

The basic function of Sections 7.14-7.16 will be to filter out those
projects which will require some neasure of CZM Office coordination from those
which the EOEA agencies can process independently in order to eliminate
duplication of the more routine reviews and to expedite inter-agency review of
the more complex ones.

7.17 Other Procedures

a. If an applicant fails to file a consistency certification during the
review of his state permit application, the CZM Office shall, upon
receipt of a copy of the certification from the applicant after he
applies for a federal permit, publish the notice
in the Environmental iMonitor, as provided in Scction 7.13. 30 days
after such publication, Lhe CZM Office may issue its concuirence.

378

b. Applic.nts for federal permits listed under Section 7.10 who do not
require a state permit, shall file their consistency certification
dirce -' with the C1ZM Office which shall pu;blish notice in the
Envirl:.mental Monitor, as above, and may issue its concurrence 30
days after publication.

Co:.-menta ry

7.17(b) encomprasses Deepwater Port or OCS activities, for example.

7.18 Procedures for Unlisted Federal Licenses or Permits or Activities Outside
the Coastal Zone

a. For any activity requiring a federal permit not listed in Section 7.10
or occurring outside the coastal zone which may significantly
affect land or water uses in the coastal zone, the CZM Office may
require a filing of a consistency certification. The CZXi Office !nay
use A-95, MNEPA or NEPA reviews, citizen information or other measures
to learn of such pending activities.

b. The CZM Office shall notify the applicant, the federal agency, and the
Assistant Administrator of NOMAA within 45 days from the notice of
federal permit or license application of the need to file a
consistency certification.

c. The CZM Office shall publish notice in the Environmental Monitor of
its receipt of the certification pursuant to Section 7.13.

7.19 Decision of the CZM Office - 30 days after such publication, the CZM
Office may:

a. concur with the action as proposed and mail its consistency concurrence
to the applicant; or

b. concur with the action subject to such conditions as mode, scale, location,
design, or operation of the proposed activity and/or may, under limited
circumstances, conditionally concur reserving the right to object and
compel modifications or withdraw its concurrence if monitoring
discloses that the activities are not consistent with the CZM Policies
and then mail copies of its conditions and/or reservations to the
applicant and the federal agency; or

c. object to the action and mail copies of the objection to the applicant,
the federal agency, and the Assistant Administrator of NOAA. The
objection must describe how the proposed action is inconsistent with
the CZM Policies and (if they exist) alternative measures which, if
adopted by the applicant, would permit the proposed activity to be
conducted in a manner cornsistent with the CZ.I Policies. The objection
may be based on a determination that the applicant has failed, foloa,,.ing
a written request, to supply sufficient iniforration for thl- C>Z> Oifice

379

to f[., with reasonable assurance, that the proposed action will be
cone t-ed consistenitly with the CZM policies. If the objection is
base' cn the grounds of insufficient infornation, the objection must
describe the nature of the information requested and the necessity of
havin, such information to determine the consistency of the action with
the CZM Policies.

d. In the case of (b) or (c), the notice to the applicant shall inform the
applicant of her right to appeal to the Secretary of Commerce.

Co;rcentary

This section parallels draft 15 CFR 930.55 and 930.66.

7.20 Time Periods

a. The CZM Office need not issue its concurrence until 10 days after the
final appropriate EOEA permit is issued if:
(i) the CZM Office is directly issuing its concurrence pursuant to
Section 7.16 and the applicant has not yet applied to a federal
agency, or
(ii) due to appeal proceedings for al EOEA permit, the failure of
the applicant to apply for all appropriate EOFA permits concurrently,
or other provisions of law or procedure, the final EOEA permit
appropriate to the projectand a CZM Policy has not been issued.

b. If the applicant has applied to a federal agency, the CZM Office shall
issue its concurrence, disagreement or conditions within six months,
whether or not final action by all EOEA agencies has been taken.

c. The CZM Office shall issue its concurrence within six months for projects
under Sections 7.17-7.19.

Commentary

These time periods are another incentive for applicants to initiate concurrent
state and federal processing. Since the federal regulations, which permit a
maximum of six months for state concurrence, are triggered by application to the
federal agency, early federal application during the state process ensures that the
state will act during this six month period. Since Massachusetts' procedures in
Section 7.10 are optional with the applicant and not imposed by federal law, the
federal time limits need not apply.

The CZM Office believes that the six months time period is too long in the
majority of cases and therefore has imposed upon itself the 10 day time limit in
Section 7.14 for threshold determinations. But, in order to allow for flexibility
for cases where a fuller study or appeals are involved, the option to await final
EOEA permit issuance is retained. The CZM Office, of course, could always issue
its concurrence subject to the EOEA conditions, as set out in Section 7.15.

380

The amended KEPA 7law, G.L. c. 30, s. 62D, now imposes a 90 day deadline for
state action on permit applications which should shorten delays in issuance of
non-appealed EOEA permits.

7.21 Lost Papers - Upon a showing of proof of the submission of their consistency
certification by certifies mail, return receipt requested, which indicates
delivery to the CZMI Office or an EOEA agency, any applicant may compel the CZM.
Office to issue its concurrence within the time limits of Section 7.17.

Commentary

This section is included for the protection of applicants in the event that
papers are not delivered or are misplaced by the agencies. Applicants are urged
to call or write the CZM Office if they do not hear from it or an EOEA agency
within an expected time period, rather than waiting for the full time period to
elapse.

7.22 Conflict Resolution - The CZM Office will utilize and abide by the conflict
resolution procedures established by the CZMA and any implementing regulations.

7.23 Categorical Concurrences

a. When an agency routinely processes permits for minor activities or
maintenance activities to existing structures or facilities, the CZM
Office may issue a categorical concurrence for such activities if:

(1) The proposed activities are all of similar types, scale, and/or
geographical location such that a single evaluation by the CZM
Office could substantially reveal the impacts of the proposed
activities and their consistency with the CZM Policies; and

(2) The activities all fall within Section 7.14(a)(1) and thus would
receive limited scrutiny by the CZM Office under normal procedures;
and

(3) The CZM Office publishes notice of the proposed categorical
concurrence in the Environmental Monitor and holds a public hearing;
and

(4) The categorical concurrence describes in detail the types, scale
geographical location , and duration of the activities which the
CZM Office finds are consistent with the CZM Policies, and
specifies any conditions or exceptions thereto, which may include
notice to the CZM Office of whenl any activity is to occur; and

381

(5) The CZM Office has coordinated the terms of its categorical
concurrence with other federal, state or local agencies where
possible.

b. The CZM Office shall notify the federal, state and local agencies of
its categorical concurrence.

c. Once a categorical concurrence has been made for a type of project, no
consistency certification shall be requited and no notice shall be
placed in the Environmental Monitor. The EOEA agency shall provide the
applicant with a copy of the categorical concurrence, at the request of
the applicant.

Commentary

Section 7.14(a)(1) is designed to inform applicants and federal agencies
swiftly of the consistency of activities with the CZM Policies where it is
possible to make that determination after limited evaluation. For instance, if
the activity is permitted under Policy 1 (a wharf on pilings or utility lines
through a marsh), or Policy 10 (a residential home outside of any SRA or any
APR with hook-up to an existing sewer or soils satisfactory to Title 5 of the
Environmental Code (septic standards) and approved by the local government),
then concurrence by the CZM Office is automatic. Therefore, when such activities
will occur frequently, separate applications and review of each activity could
create unnecessary burdens on applicants and on agencies. Section 7.23 is
designed to require a single in-depth public evaluation of certain types of
proposed activities, and then to permit the individual activities to proceed
without focused review by the CZM Office.

7.24 Amendments to Section 7.10 - The list of federal licenses or permits in
Section 7.10 which are subject to consistency review by the CZM Office may be
amended at any time by giving 30days public notice in the Environmental Monitor,
notice to the federal agency, to NOAA, and by conforming to the requirements of
the APA.

7.25 Concurrences for Energy Facilities - For energy facilities subject to the
jurisdiction of the Energy Facilities Siting Council (Council), except for
facilities relating to OCS exploration, development and production activities,
the CZM Office, in issuing its concurrence, shall be governed by the following
procedures:

a. Where Council approval for a Long-Range Forecast or Supplement has been
given following opportunity for EOEA review of and comment on the lead
company submission and the Council's consideration of the CZM Policies
is in accordance with the Council's regulations amended pursuant to
the Memorandu'n of Understanding between the Secretary and the Council,
the CZ> Office sFlhal issue its concurrence for permits required by the
Federal :Erna:gy ReTgulatory Commission or the Nuclear Regulatory Comr-ission

382

for a_1 issues, including siting or safety, which are not within the
scope of-review of any EOEA agency. Such limited concurrence shall
not be deemed a consistency concurrence for any CZM Policies over which
the CZM Office or the EOEA agencies have enforcement jurisdiction.

b. Once all EOEA permits have been granted, with or without conditions,
the CZM Office shall issue its concurrence in accordance with Section 7.16.
When a Certificate of Environmental Impact and Public Need (G.L. c. 164,
s. 69K) is not sought, no further concurrence by the CZM Office is needed.

c. If a Certificate of Environmental Impact and Public Need is sought on
grounds other than the denial of or imposition of conditions on a permit
by an EOEA agency, no further CZM Office concurrence is needed for the
activity to be consistent with the CZM Policies.

d. Where a Certificate of Environmental Impact and Public Need is sought
after the denial of or the imposition of conditions on a permit by an
EOEA agency and is approved by the Council following EOEA review of and
comment on the application, appropriate environmental impact review,
EOEA opportunity to intervene or participate in the hearing on the
application and Council consideration of CZM Policies in accordance
with Council regulations adopted pursuant to the Memorandum of
Understanding between the Secretary of EOEA and the Council, then the
CZM Office shall automatically issue its concurrence.

7.30 Procedures for Federal Agency Activities - The Massachusetts CZM Program
shall follow the standards and implementing regulations of Section 307(c)(1-2)
of the CZMA as its general procedures governing the conduct of federal agencies
and the CZM Office regarding federal activities significantly affecting the
coastal zone, subject to the special provisions below.

Commentary

Federal agencies are required by Sections 307(c)(1-2) of the CZMA to make
consistency determinations for activities significantly affecting the coastal
zone, to notify state agencies of all consistency determinations and to conduct
all activities consistently with the state CZM Plan to the maximum extent
practicable. Federal activities include federal development projects, resource
management practices and the issuance of licenses or permits to other federal
agencies.

7.31 List of Federal Activities Requjiring Consistency Determination - The
following activities in the coastal zone significantly affect the coastal zone
and shall always require a federal agency consistency determination:

383

Army Corps of Engineers:

- proposed project authorization for dredging, channel works, breakwaters,
other navigation works, erosion control structures, beach replenishment,
dams;

- proposed real property acquisitions.

Department of Interior:

- proposed Bureau of Land Management OCS lease sales;*

- proposed National Park Service real property acquisitions;

- proposed U.S. Fisheries and Wildlife real property acquisitions.

Department of Defense:

- location and design of new or enlarged defense installations.

Department of Transportation:

- location and design of new or enlarged Coast Guard stations, bases and
lighthouses;

- location and design of aviation communication and air navigation
facilities.

General Services Administration:

- location and design of proposed federal government construction;

- real property acquisitions and disposals of surplus federal lands.

Amtrak, Conrail:

- railroad expansions, new construction or abandonments.

7.32 Other Federal Activities

a. The CZM Office shall utilize MEPA, NEPA, A-95 review or citizen information
to learn of proposed federal activities not listed in Section 7.31. If
the CZM Office determines that the activity could significantly affect
the coastal zone, it shall so notify the federal agency within 45 days of gett-
notice of the unlisted federal activity and shall request a consistency
determination.

* The CZM Office reserves tee right to review proposed Bureau of Land Managemlent
OCS lease sales when the question of whether or not lease sales are eligible
for consistency review has been determined.

384

b. The list of federal activities in Section 7.31 may be amended at any time
by giving 45 days public notice in the Environmental Monitor, notice to
the federal agency, to NOAA and by otherwise conforming to the require-
ments of the APA.

7.33 Negative Determinations

a. Federal agencies may apply for a categorical concurrence for similar or
minor actions pursuant to Section 7.23. Once a categorical concurrence
has been issued by thile CZM Office, the federal agency may then submit
a negative determination to the CZM Office notifying it of the
commencement of the individual activity.

b. If a federal agency submits a negative determination to the CZM Office
foran activity which is not covered by an existing categorical
concurrence, the CZM Office shall treat the negative determination as
if it were a standard federal agency consistency determination.

7.34 Form for Consistency Determination

a. The consistency determination shall be provided to the CZM Office at
least 90 days before the federal activity reaches a stage of final
approval.

b. The consistency determination shall be sent to: Executive Office of
Environmental Affairs, Coastal Zone Management Office, 100 Cambridge
Street, Boston, Massachusetts 02202.

c. The consistency determination shall include a detailed description of
the activity and comprehensive data and information sufficient to support
the federal agency's position.

d. The consistency determination shall also identify:

(1) whether the proposed activity is located within or outside of the
coastal zone;

(2) whether the proposed activity is located in a SRA;

(3) whether the proposed activity is located in or near a SADA;

(4) whether the proposed activity is located in or near an APR/ACEC; and

(5) what CZM Policies are affected by the proposed activity.

385

Commentary

In lieu of subsection (b), if the federal agency prefers the A-95 or NEPA
procedures or a richanism detailed in a Memorandum of Understanding with
the CZM Office, such procedures may be used to provide the CZM Office with the
consistency determination as long as the substantive information provided is
sufficient for the CZM Office to determine whether or not it agrees or disagrees
with the federal agency's determination.

Completion of the information required in subsection (d) is critical to a
determination of the consistency of the proposed action with the CZM Policies.
Pursuant to the dzaft federal regulations, federal agencies must relate the
impacts of the activity to the relevant elements of the state management program.
Most of the CZI' Policies are either area or activity related. The CZM Office
maps and other matrices and guidelines can be used to quickly identify those
areas and activities which are relevant to the CZM Policies. Since some CZM
Policies support and strongly encourage some types of federal activities and since
other policies seek to discourage or prohibit other types of activities in certain
areas, the maps and matrices/guidelines may be important tools to identify the
relevant policies and assist in determining consistency with the CZM Policies.

7.35 CZM Response

a. Within 15 working days of receipt of the consistency determination,
the CZM Office shall inform the federal agency of its agreement, dis-
agreement, or need to further evaluate the proposed action. The CZM
Office review shall follow the procedures described in Section
7.15 with the following exceptions. Consistent with the federal
regulations, if the CZM Office requires additional time to conduct further
studies or site investigations, it may request that the 45 day time
period be extended. Federal agencies shall approve a request for 15
days or less. Longer requests may be granted depending on the magnitude
and complexity of the proposed activity and the information in the
consistency determination.

b. If the CZM Office disagrees with the consistency determination, it shall
describe how the proposed activity will be inconsistent with the CZM
Policies and how alternative measures, if they exist and are adopted
by the federal agency, would allow the activity to proceed in a manner
consistent to the maximum extent practicable with the CZM Policies. The
CZM Office shall send a copy of its disagreement to the Assistant
Administrator of NOAA.

c. In the event of such disagreement, the CZM Office shall attempt to
informally resolve the issue with the federal agency or shall utilize
the mediation services of the Secretary of Commerce.

386

7.40 Procedures for Federal Financial Assistance to State and Local Governments

a. The CZM Program shall follow the standards and implementing regulations
of Section 307(d) of the CZMA as the general procedures governing the
issuance of the CZM Office agreement or disagreement with requests for
federal financial assistance by state and local governments, subject to
the special provisions below.

b. The CZM Office shallutilize the A-95, MEPA and NEPA review procedures,
citizen information, Memoranda of Understanding or other measures to
receive notice of all grants, contracts, loans, subsidies, guarantees,
insurance or other forms of federal financial assistance to be awarded
to any unit of state or local government or any related public entity.

Commentary

The CZMA and the Federal Consistency Regulations prevent any federal agency
from granting any form of assistance to any public body which may significantly
affect the coastal zone without the concurrence of the CZM Office. Furthermore,
no federal agency may disburse such funds if a dispute has arisen concerning
whether or not the federal assistance project is subject to the consistency
review until such dispute has been settled.

7.41 Federal Assistance Requiring CZM Office Review

a. As set forth in Section 7.40(b), any federal financial assistance shall
be reviewed by the CZM Office if it is:

(1) for an activity located in:

a. tidal waters, or
b. intertidal areas, or
c. land areas above mean high water extending to 100 feet inland of
the 100 year floodplain, or

(2) for the following facilities regardless of their location within
the coastal zone:

a. power generating and desalination plants,
b. minerals extraction facilities,
c. wastewater treatment and collection facilities,
d. transportation facilities, or

(3) for an activity located in the balance of the coastal zone or
outside the coastal zone but which significantly affects the
coastal zone, as determined by the CZM Office in its review.
pursuant to Section 7.40 (b).

387

Em. ;ActJ.: is lec-atcd in the areas described :n (a)(]) above or of the
tv':, : ribeJ il. (a)(2) sli-ll require a ccn.sistencv concurrence. The
CZ>1 OfCi..e shall rotify the ayplicant agency, the federal agency and
the A,:i Lant Ad:,:inistrator of NOAA of its intention to review an
activei .y under (e)(3).

c. Copic:s of this r-gulation shall be sent to all federal agencies, units
of state and local government and A-95 state and regional clearing-
hous es.

7.', Review Through Al:-95 Procedures - The CZM Office shall receive copies of all
proposed assistance projects fromn the state A-95 clearinghouse, the Office of
State Planning. Withinl the Office of State Planning's 30 day time limit, the
CZi. Office shall review the proposed assistance project according to the same
criteria as described in Section 7.15.

a. For those proposed federal assistance projects whose consistency with
the CZM Policies can be quickly assessed, the CZM Office shall
issue its agreement or disagreement on the forms provided by the
Office of State Planning.

b. For those proposed federal assistance projects which will require
additional timte for on-site evaluation, in-depth review, etc., the
CZI Office shall notify applicant agencies, federal agencies, state and
regional clearinghouses and the Assistant Administrator of NOAA. Such
notice shall specify which policies are at issue and what the scope of
the investigation will be, including estimates of the time involved.

c. After the review set out in Section 7.42(b) is completed, the CZM Office
shall issue its agreement or disagreement, either on forms provided by
the Office of State Planning or by letter to all the parties previously
notified under Section 7.42(b).

Comnm'.,' tary

The CZ?. Office has been usirng the A-95 process during the past three yea-zs
to monitor federal assistance projects affecting the coastal zone. Thle state
Office of State Planning has 30 days from receiving federal financial assist7ance
requests to distribute them to vaicous a-jencies, including the CZM Office, receive
the com,7ments and return them to the federal agency. This time limit has meant
that colrmnenting agencies, such as the CZMI Office, effectively have about two weeks
in which to respond. Paralleling the procedures set out for federal licenses or
permits, this allow.,s sufficient time for the CZM Office to make a threshold
decision about the consistency of a proposal or the need for further evaluation.

388

-.' C7.I Of"i-:. Objections - The CZMI Office shall -)bject to or agree with,
.S;,' :'t to ct--:.-ia-n modifications or conditions, the proposed federal financ'ial
assistance orojtPct. Suc'h objections, conditions or modifications must: describe
,-: the propes-.e project is inconsistent with the CZ-f Policies and what alternative
:,;L<ares, if thny exist, would permit the proposed project to be conducted in a
-manner consistcnt with the CZM Policies.

CZM Office objections shall include a statement notifying the applicant
ale;icy of the right to appeal to the Secretary of' Commnerce,

7.50 Procedures for Federally Permitted Activities Described in Detail in OCS Plans

a. The Massachusetts CZM Program shall follow the standards and implementing
regulations of Section 307(c)(3)(B) of the CZMA as the general procedures
governing the conduct of federal agencies, applicants and the CZM Office
regarding consistency for OCS permit activities.

b. Submission of a consistency certification to the Executive Office of
Environmental Affairs, Coastal Zone Management Office, 100 Cambridge
Street, Boston, Massachusetts 02202 shall be required for all OCS Explora-
tion and Development/Production plans (drilling, platform which include
placement and gathering line permits issued by the U.S. Geological
Survey). Copies of the Plans, certifications and any other information
shall be sent to the above address.

c. The CZM Office shall publish notice of the receipt of the certification
in the Environmental Monitor.

8.0 Performance Evaluation - The Secretary, consistent with her statutory
responsibilities to continually review the operations of the Office with a view
towards improving administrative organization, procedures and practices,
promoting economy and efficiency, managing the budgetary processes of the EOEA
agencies, and continuing her fiscal responsibility to the federal government to
insure that the standards of Section 306 of the CZMN are being met, shall conduct
periodic performance evaluations of the status of the CZMi Program in all appropriate
EOEA agencies. Such evaluations may incorporate, but need not be limited to, sutch
areas of inquiry as: (a) whether the EOEA agency has made an initial. determination
as to the applicability of any CZM Policy to an issue at hand and perfor-med
necessary investigations as to facts, site conditions, etc.; (b) whether the EOEA
agency has incorporated the CZM Policies in its decision-making process and ill its
final decision, to the extent permitted under Section 5.6; (c) whether the EOSA
agency has attempted, through informal consultation with the CZM Office and other
EOEA agencies, to clarify and coordinate actions where there is a question as to
the meaning or intention of a CZM Policy or how it should be applied in a particular
circumstance or situation; (d) whether, in cases where the CZM Policy has not been
followed, it was not so followed because of Section 5.6 and whether that decision
was legally corzcrc and welber rr not early efforts w..ere Jcde to cotim'.nica:e. suc
conclrns to the C(ZI Office; (:) wic.t rerr thle local g,.nr .--:t no:-ificatJon rat riuire-
t ents 'were cemjlr'licOrl h ;-i.; ~ .~ e-,t;>:v ag.d (f vhe a gency ~ :.c,: ' ..;onLr~,ry to p: ic:.,::.; er
M.iemoranla of U!ctlrstallding r.rirdin_,g d..I-et state fuPLd:;r .,lojCects or �inrialcial
assistance.

389

0
POLICY APPENDIX
See Chapter 4.
BOUNDARY APPENDIX
See Appendix E.

390

0*~~~ ~~Appendix H.
The Attorney General's Memorandum
Opinion on the Secretary's 21A Authority

391

0
391

77/78 - 18

THE COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE ATTORNEY GENERAL
JOHN W. PC CORMACK STATE OFFICE BUILDING
ONE ASHBURTON PLACE. BOSTON 02102

fRANCIS X. BeLLOTn January 20, 1978
A'"ORN~y 3ENERAL

Evelyn F. Murphy
Secretary
Executive Office of Environmental Affairs
100 Cambridge Street
Boston, Massachusetts 02202

Dear Secretary Murphy:

On November 21, 1977, you forwarded to me 16 questions

concerning the Massachusetts Coastal Zone Management (CZM) program.

You posed four of these questions on your own behalf as Secretary
1/
of Environmental Affairs. You transmitted an additional 12

questions on behalf of the Joint Committee on Natural Resources
2/
of the Legislature.

I/
Your questions may be paraphrased as follows: (1) does
the statutory authority of EOEA, including its constituent agencies,
empower appropriate EOEA agencies to implement a CZM plan for the
Commonwealth, which includes such policies as those 27 set forth
in the (draft) Massachusetts CZM Plan? (2) Do the Secretary's
statutory 'responsibilities under G.L. c. 21A, ��3 and 4 authorize
the Office of the Secretary to develop and implement a CZM program
jointly with EOEA agencies, when requested in a memorandum of
understanding? (3) Is it within the authority of the Energy
Facilities Siting Council to agree to recognize and to act
consistently with EOEA regulations concerning CZM policies? (4)
Does G.L. c. 21A, �2(7) or any other provision of law authorize
the Secretary to designate areas of critical environmental concern
within the coastal zone as provided in the CZM plan?

2/
As Secretary, you are entitled to obtain legal advice from the
Attorney General on questions relating to your immediate official
duties. G.L. c. 12, �3. That section does not apply to the Joint
Committee, whose legal relationship with the Attorney General is de-
fined by G.L. c. 12, �9. Under the terms of S9, the Joint Committee
would not be entitled to an opinion on the questions it has raised
because none of the questions concerns legislation pending before it.
I understand that you transmitted the Joint Committee's 12 questions
along with your own as a matter of courtesy.

392

-.2-

As background for your request you stated the following. I

in 1972 Congress passed the Coastal Zone Management Act of 1972,

Pub. L. 92-583, 86 Stat. 1280, 16 U.S.C. ��1451-1464. The Act

authorized federal funding to states which were developing plans

for the coordinated management of coastal areas. The Executive

Office of Environmental Affairs (EOEA), pursuant to the Governor's

designation, has received federal and matching state funds for the

past three years to develop a CZM plan for Massachusetts. The

plan has now been drafted, and you have submitted it to the

United States Department of Commerce for approval; that approval

is a prerequisite of the plan's implement~ation. However, several

questions have recently been raised concerning the legal authority

of EOEA to carry out the provisions of the CZM plan without

additional enabling legislation. Your opinion request seeks an

answer to those questions, for final federal approval of the

plan will not be forthcoming until the issues of state statutory

authority are resolved. See 16 U.S.C. �1455.

For the reasons discussed below, I must respectfully decline

to answer the questions you have asked in the context of a

formal opinion; the abstract, hypothetical and general nature of

the questions prevents my doing so. Nevertheless, I recognize

your special need to resolve the issues of legal authority you

have raised, since final review of the CZM plan by federal

authorities cannot be completed without such a resolution.

Accordingly, pursuant to my responsibilities under G.L. c. 12, �3,

I have undertaken to answer your questions in a separate

memorandum accompanying this opinion.

393

-3-

It has been the long established policy of the Attorney

General to refuse to give opinions on hypothetical questions

or those calling for a general, abstract interpretation of

statutory provisions. See, e.g., 1966/1967 Op. Atty. Gen.

at 112, 114; 1934/1935 Op. Atty. Gen. at 31; 3 Op. Atty. Gen.

at 425, 428-429 (1911); 1 Op. Atty. Gen. at 273-275 (1895);

cf. 1946/1947 Op. Atty. Gen. at 23. The reasons for this practice

are not hard to discern.

Every opinion ot the Attorney General is advisory in a sense,

and is to some extent a general pronouncement or prediction

about the law. Cf. Opinion of the Justices, 365 Mass. 665, 679

(1974); Opinion of the Justices, 341 Mass. 738, 748 (1960).

Nevertheless, when legal questions are presented which are divorced

from a concrete factual context or application, the Attorney

General's ability to properly advise the requesting state

official on their answers is extremely limited. Obviously the

answers may change depending on the particular circumstances in

which the questions arise. Cf. lerardi, Petitioner, 366 Mass.

640, 649 (1975); Commonwealth v. Welosky, 276 Mass. 398, 400

(1931). Rather than hazard a factually unfounded guess as to

the correct legal determination in such situations, the Attorney

General has traditionally declined to rule on the questions

presented. The policy finds analogous support in the advisory

opinions of the Supreme Judicial Court. See, e.g., Opinion

of the Justices, Mass. Adv. Sh. (1977) 1814, 1818; cf. Opinion

of the Justices, 347 Mass. 797, 798 (1964).

394

-4-

These principles govern the present opinion request. The
3/
draft CZM plan represents a proposed course of governmental action

to be put into effect in the future. Your questions ask whether

a variety of statutory provisions, some identified in the questions

and others only generally referred to, authorize you, the Office

of the Secretary, and the agencies, departments, commissions and

boards under the jurisdiction of EOEA, to implement that plan. By

their terms, the inquiries are extremely broad and their answers

call for a general examination of legislation removed from a

sufficiently developed factual framework. In these circumstances I

find I must abstain from considering the questions within this

opinion.

At the same time, I wish to emphasize that my inability to

render a formal opinion should not be construed as a conclusion

that the appropriate EOEA agencies and officers presently lack

the statutory authority to implement the policy objectives

presented in the draft CZM plan. My memorandum on these issues

makes plain that this is not the case. What is more, I want to

assure you that if EOEA proceeds to implement the plan and its

legal authority to do so is challenged in court, I will provide

representation for those state officials and agencies named as

defendants. See 1977/1978 Op. Atty. en. No. 6.

Ver ruly

PRANCI X. BELLOTTI
ATTORNEY GENERAL

3/! 395
The draft CZM plan is presented in a two-volume document of c=rentary,
analysis, maps and other information, totalling 800 pages. It appears that the
draft is still undergoing a process of amendment and revision; your staff has
recently forwarded new material reflectng changes in the wording and number
of CZM policies and in the accompanying cormtintary. The fluid status of the
actual CZM plan underscores the inappropriateness of my rendering a formal
opinion in this instance.

Memorandum Opinion on Coastal Zone Management Program

TO: Evelyn F. Murphy
Secretary
Executive Office of Environmental Affairs
I/
This memorandum addresses the questions you have posed

concerning the legal authority the Secretary of Environmental

Affairs (the Secretary), the Executive Office of Environmental
2/
Affairs (EOEA), and its constituent agencies to implement the

Massachusetts Coastal Zone Management (CZM) program, as that

program is presented in the proposed Massachusetts CZM plan
3/
which you have forwarded to me for review.

In summary, I answer your questions as follows. (1) As a

general matter, my review of the proposed CZM plan is necessarily

limited in scope because of its draft status and the abstractness of

your questions. However, within these constraints I have concluded

that the statutory powers of EOEA and the separate agencies,

departments, and other entities within its sphere are broad

I/
The questions are set forth in the body of the memorandum.

2/
EOEA is established by G.L. c. 21A, �1. It has under its
jurisdiction five principal or line agencies: Department of
Environmental Quality Engineering (DEQE); Department of Environmental
Management (DEM); Department of Food and Agriculture; Department of
Fisheries, Wildlife and Recreational Vehicles (DFW & RV); and
Metropolitan District Commission (MDC). See G.L. c. 21A, �7.
Each of these agencies in turn supervises a number of divisions,
departments, boards, etc. See G.L. c. 21A, �8. A large compendium
of statutes charges EOEA, its agencies, and departments with
varied responsibilities and functions relating to the protection
or enhancement of the environment. Many of these statutes are
discussed below.

3/
In the opinion acccacpanying the nemorandum, I set forth the reasons that
I could not consider your questions in the context of a formal opinion of the
Attorney General. However, I indicated that I would undertake to address them
in a separate document, which this memorandum represents.

396

enough to permit them to implement the proposed CZM plan.

(2) The management powers vested in the Secretary by G.L. c. 21A, i

empower her to develop and implement the CZM program jointly

with the several EOEA agencies in accordance with the terms of

joint memoranda of understanding between them. (3) The Energy

Facilities Siting Council (EFSC) may agree to recognize and act

consistently with EOEA coastal zone management policies so long

as EFSC retains and continues to exercise its discretion to

balance the three statutory factors of (a) energy supply requirements,

(b) environmental impact and (c) cost in each siting determination.
4/
See G.L. c. 164, ��69H, 69J, 69 0. (4) The Secretary has

authority under G.L. c. 21A, �2(7) and St. 1974, c. 806, �40

to designate areas of critical environmental concern within the
4A/
coastal zone. Is

A. The Secretary's Questions

1. Does the statutory authority of EOEA including its
constituent agencies, empower appropriate EOEA
agencies to implement a plan of coastal zone
management for the Commonwealth which includes such
policies as those 27 [5/] proposed in the CZM plan?

4/
Your third question, inquiring into the authority of the Energy
Facilities Siting Council, is not a question that you may properly
ask since the Council is not under your jurisdiction. However, the
Secretary of Environmental Affairs is a member of the Council, G.L.
c. 164, �69H, and in view of the particular circumstances presented
here, I have answered the question informally in this memorandum.

4A/
My answers to the Joint Committee's questions are set forth in
the last section of this memorandum.

5/
The original draft CZM plan and Addendum contained 38 policies
However, your staff has recently forwarded to me a new listing of i
policies which renumbers, rewords and consolidates the original
38 into 27 policies. In this memorandum I have considered only the
27 newly-designated policies. 397

-3-

The draft CZM plan represents a proposed course of governmental

action to be implemented in the future. It is not, and does not

purport to be, a duly adopted regulation. Rather, the draft

plan recognizes that the implementing agencies, including EOEA

itself, will be required. to carry out the plan's policies through

their own existing regulations or through regulations they intend

to adopt at a later date. Examination of the facial validity of

administrative regulations is narrow in scope. If (1) the reg-

ulations can by "any reasonable construction be interpreted

in harmony with the legislative mandate," Consolidated Cigar

Corp. v. Department of Public Health, Mass. Adv. Sh. (1977)

1419, 1433, and (2) "the line of arbitrariness is not crossed,"

Cambridge Elec. Light Co. v. Department of Public Utilities,

363 Mass. 474, 496 (1973); see id. at 490-491, 493, they will be
6/
upheld. Without having been presented with either regulations

implementing a final CZM plan or a concrete application of the plan,

my review must be even more limited than suggested by the cases
7/
just cited. Within these boundaries I have made the determination

6/
In rendering a legal opinion under G.L. c. 12, �3, my
role is similar to that of a court. My inquiry is limited to
the legal questions presented, leaving considerations of policy
to the appropriate officers or agencies. See, e.g., 1976/1977
Op. Atty. Gen. No. 25; 1961/1962 Op. Atty. Gen. at 199; cf. First
National Bank of Boston v. Konner, Mass. Adv. Sh. (1977)-2095, 2105.

7/
Two principles of administrative law are particularly
pertinent to my review here: (1) in administering statutes, agencies
may exercise those powers expressly delegated to them and those
reasonably necessary to effectuate the statutory purposes. See, e.g.,
Massachusetts Commission Against Discrimination v. Liberty Mut. Ins.
Co., Mass. Adv. Sh. (1976) 2403, 2406-2407, 2409; Scannell v. State
Ballot Law Commission, 324 Mass. 494, 501 (1949); (2) the Legislature
may validly vest wide discretion in an agency to select the
appropriate means of effectuating a broadly phrased statutory
scheme. See, e.q., Commonwealth v. Racine, Mass. Adv. Sh. (1977)
1101, 1106-1107; Scannell v. State Ballot Law Commission, supra.

398

that the statutes authorize the contemplated agency action.

However, questions concerning the validity of particular CZM

regulations or application of the CZM policies in an individual

case must be left for another day. See Cambridge Elec. Light

Co. v. Department of Public Utilities, supra, 363 Mass. at 493.

In answering this question, I have confined my review to

state statutes directly involving EOEA and its agencies. The

validity of actions that you, the Office of Coastal Zone Management

(OCZM) or other EOEA agencies intend to take in implementing the

CZM plan under the federal Coastal Zone Management Act, 16 U.S.C.

S�1451 et seq., or in connection with other federal statutory

programs, is a matter of federal law. Accordingly, it is not

appropriately within my jurisdiction to consider. See, e.g., 2

Op. Atty. Gen. at 570 (1905). It is sufficient to note that G.L.

c. 21A, �2(25), charging EOEA and its agencies with the duty of acting

on behalf of the Commonwealth in relation to federal grant programs,

supplies those agencies with any necessary state authorization for their
8/
federally-oriented activities.

In the following discussion I begin my review with the

first 13 policies, designated as "regulatory." I have consid-

ered each separately, although quite briefly. I then turn to the

Several agencies have also been granted specific individual
authority to cooperate with federal agencies and to seek and use
federal funds. See, e.g., G.L. c. 21, ��9, 18, 27; c. 91, �11;
cf. G.L. c. 30, �62 (state regulations on environmental impact
reviews to conform with corresponding federal statute's require-
ments).

399 0

14 "non-regulatory policies" which are treated in a more summary

fashion. The main focus of the discussion is on the individual

statutes creating specific programs and duties for the various

separate EOEA agencies. The Secretary's authority to implement

the EOEA plan, an issue governed by G.L. c. 21A, is treated

principally in my answer to your second question.

(1) Regulatory Policies

Policy 1: Protect ecologically significant resource
areas (salt marshes, shellfish beds, dunes, beaches,
barrier beaches, and salt ponds) for their contributions
to marine productivity and value as natural habitats and
storm buffers.

The draft CZM plan indicates that this policy will be carried

out under existing statutory licensing, permit and restriction
9/
programs by EOEA line agencies. See, e.g., G.L. c. 131, �40

(wetlands protection - DEQE and local conservation commissions);

G.L. c.~130, �105 (coastal wetlands restriction - DEM); G.L. c. 91,

��1-59B (waterways program - DEQE); G.L. c. 132A, ��13-17 (ocean

sanctuaries - DEM); G.L. c. 21, ��27, 43,55 (discharge permits -

Division of Water Pollution Control [DWPCI). Nothing in the plan's

description suggests that the implementing agencies intend to act

in excess of their respective statutory authorities. In my opinion
10/
the statutes relied upon are broad enough to accommodate Policy 1.

9/
It appears that the Office of Coastal Zone Management (OCZM)
within the Secretary's office will play a coordinating role among the
line agencies. The functions and status of OCZM and the Secretary's
Office are discussed in other parts of this memorandum.

10/
In so concluding, I assume that actual implementation of
Policy 1 by EOEA and its agencies will be preceded by promulgation
of specific regulations if and as required under the terms of the
specific statutes cited above or by virtue of the state Administra-
tive Procedure Act, G.L. c. 30A.
400

Policy 2: Protect complexes of marine resource areas of
unique productivity (Areas for Preservation or Restoration
[APR's]); ensure that activities in or impacting such com-
plexes are designed and carried out to minimize adverse
effects on marine productivity, habitat values, water
quality, and storm buffering of the entire complex.

This policy seeks to protect marine resource areas designated

by the Secretary as "areas of critical environmental concern", see G.L.
11 /
c. 21A, �2(7), or "areas for preservation or restoration" (APRs).

See 16 U.S.C. �1454(b)(3). The draft CZM plan specifies that certain

activities will generally be prohibited in these areas: (1) new

industrial discharges and the discharge of hazardous substances;

(2) new dredging (with certain exceptions); (3) disposal of dredged

materials (with certain exceptions); (4) direct discharges from new

sewage treatment facilities; and (5) the siting of new wastewater

treatment plants. The plan also mentions that the ESPC, in reviewing

energy facilities proposed for APRs, will give prime consideration i

to the need to prevent adverse environmental impacts in these

areas. See G.L. c. 164, ��64H, 64J, 64 O.

As authorities relied upon for implementing Policy 2, the

plan cites among other statutes the Massachusetts Environmental Policy

Act (MEPA), G.L. c. 30, �61, 62, and MEPA Regulations, ��8.2
12/
and 8.3 (appearing in Mass. Register Issue No. 36 at 1, 17 [1976]),

as well as specific statutory programs designed to protect marine

11/
The Secretary's authority to designate such areas is the
focus of Question 4. See pp. 27-28 infra.

12/
MEPA has recently been amended by St. 1977, c, 947, �1,
which amends G.L. c. 30, �62 and adds eight new sections, G.L.
c. 30, ��62A-62H. Under the new version of MEPA, the Secre-
tary has increased rulemaking responsibilities. See �62H. In
addition, the Secretary is now specifically charged with respons-
ibility for establishing general and special categories of projects
(footnote cont.)
401

~~~~~~~~* ~~-7-

environment resources. These include: G.L. c. 131, �40A, (inland

wetlands restriction - DEM); c. 21 (water pollution control - DWPC

see, in particular, ��27, 43, 57-58); and the statutory provisions

cited above in relation to Policy 1 -- G.L. c. 91, ��51-59; c. 131,

�40; c. 130, �105, c. 132A, ��13-17. I have reviewed these

statutes as well as the other cited in the plan, and conclude

that they authorize the proposed implementation of Policy 2 by
13/
EOEA and its agencies.

12/
(Continued)
which shall or shall not require environmental impact reports.
See �62E. This last section goes into effect July 1, 1978. The
other new sections of G.L. c. 30 are effective February 15, 1978.
See St. 1977, c. 947, ��4,5. Since the effective date of the
additional sections of MEPA is imminent, I refer throughout to
MEPA as G.L. c. 30, �61-62H.

13/
Again I assume compliance with relevant rulemaking
requirements. Furthermore, since your first question asks only
about the authority of the Secretary and EOEA agencies, I do
not address here any actions that the EFSC might take to implement
Policy 2. The authority of the EFSC to implement the policies
of the CZM plan is the focus of your third question, and I discuss
the issue in my response to that question.

402

Policy 3: Support attainment of the national water
quality goals for all waters of the coastal zone
through coordination with existing water quality
planning and management agencies. Ensure that
all activities endorsed by CZM in its policies
are consistent with federal and state effluent
limitations and water quality standards.

By its terms this policy provides that EOEA, its OCZM

and the line agencies will follow and support existing federal

and state water quality statutes, regulations and duly promulgated

goals. EOEA and its agencies not only have the authority but

the duty to take such'action. Moreover, the Division of Water

Pollution Control (see G.L. c. 21, �26), apparently

the primary agency involved in implementing Policy 3, has an

express mandate to take all necessary action to secure for the

Commonwealth the benefits of the Federal Water Pollution Control

Act Amendments of 1972, Pub. L. 92-500, 33 U.S.C. ��1251 - 1376.

G.L. c. 21, �27(3). This federal legislation is the source

of the major programs which the EOEA and its agencies intend
14/
to support and work with in implementing Policy 3.

14/
To the extent that Policy 3 calls on OCZM to work
with other EOEA and regional agencies, such cooperative
efforts are authorized by G.L. c. 21A, ��3, 4(2), and 2(16)
(23), (27).

403

-9-

Policy 4: Condition construction in water bodies and contiguous
land areas to minimize interference with water circulation
and sediment trar.sport and to preserve water quality and
marine productivity. Approve permits for flood or erosion
control projects only when it has been determined that there
will be no significant adverse effects on adjacent or down
coast areas.

The draft CZM plan indicates that the purpose of this policy

is to protect estuaries and coastal embayments as ecologically

productive natural areas by conditioning construction and flood

and erosion control projects in the manner suggested. The

authorities reled upon include: G.L. c. 131, ��40, 40A; c. 130,
15/
�105; c. 91, ��14-18, 30, 30A; c. 21, ��8-15 (protection of

state water resources -- DEM and DEQE [division of water resources

and water resources commission]); and regulations promulgated by

the agencies charged with administering these statutes. In

addition, funds. available under the federal Coastal Zone

Management Act, 16 U.S.C. �1456c(b), will be used to conduct

relevant studies. See G.L. c. 21A, �2(22), (25). My review

of these statutes indicates EOEA and its agencies have the

power to conduct the activities contemplated under Policy 4.

15/
The statutory provisions cited are described above. See
pp. 5, 7 supra.

-10-

Policy 5: Ensure that dredging and disposal of dredged
material minimize adverse effects on water quality,
physical processes, marine productivity and public health. i

It appears that this policy will be enforced by: DEQE and

the Division of Marine Fisheries within the DFW & RV pursuant to

G.L. c. 130, 9�23-26 (discharge of oil, sewage and other sub-

stances in coastal waters); DEQE under the waterways program,

G.L. c. 91, ��1-59B (see in particular �52, 10-15, 52-55); DEM

under the ocean sanctuaries program, G.L. c. 132A, ��13-17; the

Division of Water Pollution Control in conjunction with the United

States Environmental Protection Agency under G.L. c. 21, �527,

42, 43; DEM under the coastal wetlands restriction act, G.L. c. 130,

�105; conservation commissions or other local authorities and

DEQE under the wetlands protection program pursuant to G.L. c. 131,

�40; and local boards of health and DEQE pursuant to G.L. c. 111,

�150A. These statutory provisions encompass the activites

described under Policy 5, assuming, as with all these policies,

that you comply with any rulemaking requirements which the statutes

or G.L. c. 30A might impose.

Policy 6: ,Accommodate off-shore sand and gravel mining needs in
areas and in ways that will not adversely affect marine
resources and navigation.

Sufficient authority to implement this policy, as its con-

tents are described in the draft CZM plan, exists in the Division

of Mineral Resources within DEQE. See G.L. c. 21, S�54-56.

Accordingly, I need not consider the extent to which other agencies

may also carry out the policy's provisions.

Policy 7: Encourage the location of maritime commerce and
development in segments of urban waterfronts designated
as ports. Within these areas, prevent the exclusion
of maritime dependent industrial uses that require
the use of lands subject to tidelands licenses.

4&05

The draft CZM plan defines "port areas" as a class of

areas more limited than the term "harbor" generally connotes,

and with specific reference to marine dependent industry and

activity. Policy 7's proposed encouragement of maritime commerce

and development would be implemented primarily through the

licensing activities of DEQE under the waterways program. See

G.L. c. 91, 5�10 (care and supervision of harbors and tidewaters

in DEQE), 14-18 (licenses for construction of wharves, piers and

other structures in or over tidewaters), �23 (abatement of un-

authorized structures), �49B (removal of dilapidated wharves and

piers). The wetlands protection program established by G.L. c. 131,

�40 is also relied upon.

The protection of port areas and encouragement of

navigation and maritime commerce enjoys a long history of

recognition as a legitimate and significant governmental

purpose. See, e.g., Commonwealth v. Charlestown, 1 Pick. 180,

183-184 (1822); Commonwealth v. Alger, 7 Cush. 53, 95 (1851);

see also Illinois Central R. Co. v. Illinois, 146 U.S. 387,

452 (1892). So too does the authority of the sovereign to

reasonably exercise its judgment in choosing between conflicting

uses of such port areas. See Commonwealth v. Charlestown,

supra at 184. Readiny the relevant provisions of G.L. c. 91

and G.L. c: 131, �40 in light of these principles, I conclude

that EOEA and its agencies have sufficient power to implement
16/
Policy 7.

16/
The draft CZM Plan refers to actions EFSC will take in
assisting with the implementation of Policy 7, pursuant to
that agency's memorandum of understanding with EOEA. However,
the particular reference recognizes EFSC's paramount role
in the energy facility siting process.

4+06

-12-

Policy 8: Weigh the environmental and safety impacts
of locating proposed energy facilities at alternative
sites. For coastally dependent facilities, consider
siting in alternative coastal locations. For non-
coastally dependent facilities consider siting in
areas outside of the coastal zone.

As mentioned elsewhere, and as reflected in the

discussion of this policy in the draft plan, the EFSC

exercises primary jurisdiction over the siting of energy
17/
facilities. G.L. c. 164, 5�64G-64S. Thus EOEA and its line

agencies do not have authority to implement Policy 8 in

the sense of requiring other governmental agencies or private

persons to abide by the policy's terms. Under G.L. c. 21A, �2(17),

however, all EOEA agencies are empowered and directed to

analyze and recommend energy policies and programs in

cooperation with other state agencies. See, also G.L. c. 164,

�64Q. Insofar as the inplementation of Policy 8 calls for the making of

such policy recarmendaticns, it is authorized by existing statutes.

Policy 9: a. Accommodate exploration, development and
production of off-shore oil and gas resources while
minimizing impacts on the marine environment, especially
with respect to fisheries, water quality and wildlife,
and on the recreational values of the coast, and
minimizing conflicts with other maritime-dependent
uses of coastal waters or lands. Encourage maritime-
dependent facilities serving supply, support or transfer
functions to locate in existing developed ports.

b. Evaluate indigenous or alternative sources
of energy (coal, wind, solar and tidal power) and off-
shore mining to minimize adverse impacts on the marine
environment, especially with respect to fisheries, water
quality, and wildlife, and on the recreational values of
the coast.

17/
See the discussion of Question 3, at pp. 24-26 infra.

407

-13-

To the extent this policy is regulatory in character,

is* it relies for state authorization on G.L. c. 21, �54 (removal

of mineral resources - DEQE [Divison of Mineral Resources]);

c. 91, ��14-18 (construction of structures below highwater

mark - DEQE); and G.L. c. 132A, ��13-17 (ocean sanctuaries -

DEM). These statutes confer adequate authority on the Division

of Mineral Resources, DEQE and DEM, respectively, to cover the

proposed actions under Policy 9. See also G.L. c. 30, ��61-62H

(MEPA); c. 130, �17A (regulations for marine fisheries --

DFW & RV [Division of Marine Fisheries]), ��23-24 (penalties

for discharge of oil and other substances into coastal waters

causing injury to fish); �105 (coastal wetlands restriction - DEM);

c. 91, ��59 - 59A (liability for discharge of petroleum products

into Commonwealth waters and flats); c. 21, ��50-52, (regulation

of oil terminals and disposal of oil products - (Division

of Water Pollution Contro l), �557-58 (hazardous waste disposal).

Insofar as the policy calls for encouragement by EOEA and

its agencies of certain industry decisions and evaluation of

certain new information, it is justified by the provisions of
iS/
G.L. c. 21A, �2 and c. 21, �554-55, among other statutes.

138/
Again, the draft CZM plan's reference to the EFSC cannot
be read as purporting to authorize EOEA agencies to determine
siting policies.

40o8

-14-

Policy 10: All development must conform to existing applicable
state and federal requirements governing sub-surface waste 0
discharges, point sources of air and water pollution and
protection of inland wetlands.

By its terms Policy 10 states the obvious: development

projects, whether or not located in the coastal zone, must comply

with the requirements of applicable state. and federal statutes.

To the extent these requirements are set forth in statutes which

EOEA or its line agencies adminster, clearly the agencies have

the authority to enforce them. See G.L. c. 21A, �13; c. 111,

�17 (state environmental code, subsurface sewage disposal systems);

c. 111, ��142A-142E (regulation of air pollution); c. 21, �43

(regulation of point source discharges and sewage connections and

extensions). The draft CZM plan discussion of this policy shows

that it will be implemented by the appropriate agencies through

their continued administration of programs already set up

under these statutes. Accordingly, I conclude that the agencies

have sufficient statutory powers to carry out Policy 10.

Policy 11: Support designation of scenic rivers in the coastal
zone. Support designation of areas for preservation or
restoration as "sign free areas."

Under G.L: c. 21, �17B, the Commissioner of DEM is vested

with broad authority to protect and regulate, by adoption of

specific orders, the use of scenic rivers throughout the Common-

wealth, including 100 yards on either side of the banks. The

statute clearly includes the power to "designate" or adopt pro-

tective orders relating to particular scenic rivers in the coastal

4o9 0

-15-

zone. As stated in the draft CZM plan, implementation of the

first sentence of Policy 11 primarily will be a function of DEM's

administration of G.L. c. 21, �17B, although in addition OCZM

will work with local interests to encourage visual protection

of scenic rivers. Such activity is permited and indeed specifically

encouraged by G.L. c. 21A, �2(5), (8), (11), (18), (23).

Turning to the second sentence of Policy 11, designation of

"sign free areas" is the responsibility of the Outdoor Advertising

Board within DEQE. G.L. c. 21A, �8. See G.L. c. 93, �29. The

Board's current regulations provide for designation of "sign

free areas" after notice and public hearing. See OAB Regulations,

�4(h), reprinted in 9 C.M.R., Part 4 at 10(1973). Pursuant to

the provisions of G.L. c. 21A, �2(7), (11), (16) and (18), OCZM

may validly encourage the Outdoor Advertising Board to designate

APRs or "areas of critical environmental concern" as "sign-free

areas."

Policy 12: Review proposed developments in or near designated
or, registered historic districts or sites to ensure that
Federal and state actions and private actions requiring a
state permit respect their preservation intent and minimize
potential adverse impacts.

Authority to implement this policy is grounded in MEPA,G.L.

c. 30, ��61-62H. The statutory scheme creates a review process

to assess potential "damage to the environment" arising from all

state or federal projects or private projects requiring a state

permit or license. Areas entitled to protection from such en-

vironmental damage include historic districts and sites. G.L.

c. 30, �61. See generally Secretary of Environmental Affairs v.

410

-16-

Massachusetts Port Authy., 366 Mass. 755, 767-773 (1975). The

program is administered primarily by the Office of Environmental

Impact Review within the Secretary's office. The discussion of

Policy 12 in the draft CZM plan reveals that the policy will be

implemented through continuation of the existing environmental
19/
impact review program; no other or additional regulatory powers
20/
or functions are asserted on behalf of EOEA or its agencies.

In my judgment, MEPA provides sufficient authority to carry out

Policy 12.

19/
I assume there will be changes in MEPA's administration
to accomodate the amendments to MEPA. See n. 12 supra. However,
I presume that such changes will accord with the new legislative
provisions. See Consolidated Cigar Corp. v. Department of
Public Health, supra, Mass. Adv. Sh. (1977) at 1433.

20/
The draft plan discusses local zoning measures and other
local programs that could be used to advance Policy 12, as well
as national programs. EOEA and its agencies have the power to
encourage such measures and programs, see generally G.L. c. 21A,
�2, and the draft plan does not suggest that the agencies intend
to go beyond permissible encouragement activities.

-17-

Policy 13; Review developments proposed near existing public
recreation sites in order to minimize their adverse impacts.

As with Policy 12, the draft CZM plan indicates that

Policy 13 will be implemented primarily through the environmental

impact review system established by MEPA. The review contemplated in

the plan is therefore limited to development projects undertaken

directly by state or local governmental bodies or for which state

permits or licenses are required; MEPA permits such review. However,

insofar as public recreation sites are located on coastal or

inland waters, wetlands or related areas, the EOEA agencies have

additional regulating powers that may be used to further Policy

13. See e.g., G.L. c. 130, �105; c. 131, �540, 40A.

(2) Non-Regulatory Policies

The remaining 14 policies included in the draft CZM plan

have been generally classified by EOEA as "non-regulatory."

Their implementation requires the EOEA agencies to: (1) assist

other state and regional agencies, local governments or private

individuals and industry in their activities relating to the

coastal zone and in seeking state or federal funding for various

programs and proposals; (2) work as advisors or advocates with

federal, state and local agencies and groups concerning the

policies and purposes of the CZM plan; and (3) generally utilize

the EOEA agencies' own numerous and varied regulatory and reviewing
21/
powers to advance the substantive purposes which Policies

14-27 embody.

21/
These are the powers enumerated in the discussion above of
the first 13 CZM policies. 412

I have examined these 14 policies and the draft CZM plan's

discussion of them. In my judgment,. sufficient legal authority

for them may be found in the provisions of G.L. c. 21A in general
22/
and of c. 21A, �2 in particular, supplemented by the specific

enabling statutes for each agency described above. A separate

discussion of remaining policies would be in large part redundant

and is unnecessary. Accordingly, what follows is a list of

the 14 policies, each followed by citation of the relevant statu-

tory provisions authorizing the policy's implementation by EOEA

and its agencies. I should point out, however, that the statutes

cited are not intended to be an exclusive compilation of authorities.

Other relevant provisions may exist, but those listed here are

in themselves sufficient to support implementation of Policies

14-27.

22/

This section directs EOEA and its agencies together to
"1carry out the state environmental policy", and delineates 28
separate functions which the agencies are to perform in meeting
the statutory mandate.

4-1l3

-19-

Policy 14: Encourage and assist commercial fisheries research
and development. restoration and management of fishery
resources, development of extensive and intensive aqua-
culture, and enhancement of anadromous fisheries.
initiated at local, state and federal levels.

G,L. c. 21A, �2(3), (5), (9), (22), (23), (27);
c. 130, �17,

Policy 15: Ensure that state and federally funded public
works projects proposed for location within the 100 year
coastal floodplain will:

a, not exacerbate existing hazards or damage natural buffers,

b. be reasonably safe from flood and erosion related damage,
and

c. not promote growth and development in damage prone
or buffer areas, especially in undeveloped areas of APR's,

G.L. c, 21A, �2(7), (9), (10), (13), (16), (21);
c, 21, 52-7; c. 30, ��61-62H; c. 92, �32.

Policy 16: Encourage acquisition of undeveloped hazard prone
areas for conservation or recreation use, and provide technical
assistance for hazard area zoning and mitigation of erosion
problems,

G.L, c. 21A, �2(2), (9), (10), (11), (15), (16), (18),
(20), (23), (25); c. 132A, �3.

Policy 17: Provide funding for protection from tidal flooding
and erosion, emphasizing the use of non-structural measures
where feasible.

G.L. c. 21A, �2(2), (5), (7), (9)-(11), (25), (27);
�9; c. 91, SS��2, 5, 9, 10-13, 31.

41.4

-20-

Policy 18: Encourage through technical assistance and review
of publicly funded development, compatibility of proposed
development with local community character and scenic
resources.

G.L. c. 21A, �2(11), (16), (18), (23), (27);
c. 30, �S61-62H.

Policy 19: Promote the widest possible public benefit from
channel dredging, ensuring that designated ports and
developed harbors are given highest priority in the
allocation of federal and state dredging funds. Ensure
that this dredging is consistent with marine environment
policies.

G.L. c. '21A, �2(2), (9), (14), (23), (25), (27);
c. 30, S��61-62H; c. 91, ��3, 4, 10-11, 31,
52, 53; c. 132A, ��13-17.

Policy 20: Encourage, through technical and financial
assistance, expansion of water dependent uses in
designated ports and developed harbors, redevelopment
of urban waterfronts, and expansion of visual access.

G.L. c. 21A, 52(2), (9), (11), (14), (23), (27);
c. 21, S�17, 17A, 43; c. 30, ��61-62H;
c. 91, ��9A, 10-14, c. 92.

Policy 21: Improve public access'to coastal recreation
facilities, and alleviate auto traffic and parking
problems through improvements in public transportation.
Link existing coastal recreation sites to each other
or to nearby coastal inland facilities via trails for
bicyclists, hikers, and equestrians, and via rivers
for boaters.

G.L. c. 21A, �2(8), (9), (11), (15), (16), (18), (23),
(25), (26), (27); c. 21, ��17A, 17B, 18; c. 30, ��61-62H;
c. 132A, �11.

Policy 22: Increase capacity of existing recreation areas by
facilitating the multiple use of the site and by improving managerment,
maintenance and public support facilities. Resolve con-
flicting uses whenever possible through improved management
rather than through exclusion of uses.

G.L. c. 21A, �2(8), (9), (11), (15), (16), (23), (25),
(27); c. 30, ��61-62H.

415

-21-

Policy 23: Provide technical assistance to developers of
private recreational facilities and sites that increase
public access to the shoreline.

G.L. c. 21A, �2(8), (9), (11), (18), (23).

Policy 24: Physically expand existing recreation facilities
and acquire and develop new public areas for coastal recrea-
tional activities. Give highest priority to expansions
or new acquisitions in regions of high need or where
site availability is now limited. Assure that both
transportation access and the recreational facilities
are compatible with social and environmental'characteristics
of surrounding communities.

G.L. c. 21A, �2(25), (26); �9; c. 21, ��17, 17A, 18; c. 132A, ��3, 11.

Policy 25: Encourage energy conservation and the use of
alternative sources such as solar and wind power in order
to meet the energy needs of the Commonwealth.

G.L. c. 21A, �2(2), (3), (5), (9), (10), (15), (17), (21),
(23), (27); c. 21, �54; c. 30, ��61-62H; c. 91, �14;
c. 132A, ��13-17.

Policy 26: Ensure that state and federally funded transportation
and wastewater projects primarily serve existing developed
areas, assigning highest priority to projects which meet
tne needs of urban and community development centers.

G.L. c. 21A, �2(9), (10), (13), (16), (18), (19),
(23), (27); c. 21, �43; c. 30,��61-62H.

Policy 27: Encourage the revitalization and enhancement of
existing development centers in the coastal zone through
technical assistance and federal and state financial
support for residential, commercial and industrial
development.

G.L. c. 21A, �2(16), (23), (25); c. 30, ��61-62H.

416

-22-

2. Do the Secretary'.s Chapter 21A statutory responsibilities
to conduct comprehensive planning, improve program activities
and implement programs jointly upon request, empower the -
Office of the Secretary to develop and implement a program of
coastal zone management jointly with EOEA agencies, to the
extent permitted by law, [23/] when requested in a memorandum of
understanding. [24/]

The planning and implementation powers referred to in this

question are those set forth in G.L. c. 21A ��3 and 4. Section

4(2) specifically contemplates the formation of agreements between

the Secretary and the various EOEA agencies or officers, and

directs the Secretary to implement programs pursuant to such

agreements. By its terms, a memorandum of understanding represents

an agreement. The five memoranda which the Secretary and the

EOEA line agency commissioners have entered into thus come

directly within the statute's provisions.

23/
Taken literally, the phrase "to the extent permitted by law"
produces the question whether the Office of the Secretary may
develop and implement a CZM program jointly with EOEA agencies
to the extent legally permitted. The obvious answer is yes. To
give the question meaning, I treat the phrase as surplusage, and
consider your inquiry to be whether the Office of the Secretary
under G.L. c. 21A may jointly develop and implement a CZM program
by memoranda of understanding with the EOEA agencies.

24/
Such memoranda exist between the Secretary and the Commissioners
of each of the five EOEA line agencies; copies are included in
the draft CZM plan. The terms of each memorandum are virtually
the same. In each, a Commissioner has (1) expressed acceptance
and support for the CZM plan, (2) requested the Secretary to
jointly implement it, (3) agreed to incorporate the plan into his
agency's, department's, etc. regulations through proper rulemaking
proceedings, and (4) requested the Secretary to use the conflict
resolution procedures of G.L. c. 21A, �4(1) as necessary.

41l7

-23-

Turning to the CZM program itself, my answer to your first

question shows that the Secretary and the line agencies may

validly enter into a memorandum of understanding concerning

that program. As discussed above, the five agencies play varying

roles under the CZM plan, each responsible for the plan's implement-

ation to the extent that the agency's own enabling statutes give
25/
it duties affecting the coastal zone. Clearly each agency has

the power and discretion to accept and support the CZM program

insofar as it relates to the agency's functions, and, under G.L.

c, 21A, �4(2), to request the Secretary's assistance in implementing

that program. Cf. Secretary of Environmental Affairs v. Massach-

usetts Port Authority, supra, 366 Mass. at 775-777 (memorandum of

understanding between Massachusetts Port Authority and Executive

Office of Transportation and Construction regarding Logan Airport

construction project).

Additional support for the EOEA memoranda of understanding lies

in G.L. c. 21A, �2. As mentioned, �2 provides that "[t]he office

[EOEA] and its appropriate departments and divisions shall carry

out the state environmental policy [emphasis supplied]", and

sets forth 28 duties and responsibilities to be performed by them.

25/
Each agency may also have independent responsibilities under
the several provisions of G.L. c. 21A, �2.

-24-

26/
In terms of substance, the various policies of the CZM plan-

fall within the scope of these 28 tasks. On a more procedural

level,~ the vesting of joint responsibility for carrying out

the tasks strongly implies a legislative expectation that the

EOEA and its agencies would cooperatively work together in
27/
implementing environmental programs such as the CZM program.

3. Is it within the authority of the EFSC, when carrying
out its statutory duty to weigh the environmental impacts of
proposed energy facilities, to agree to recognize and to act
consistently with duly promulgated EOEA regulations concerning
coastal zone management policies, while retaining its ultimate
authority to determine the siting of facilities?

26/
The plan itself represents state "environmental policy."
This is indicated in the Governor's letter to the United States
Secretary of Commerce, incorporated into the CZM plan.

27/
One cautionary note should be added. General Laws, c. 21A, ��3
and 4 give the management powers at issue here directly to the
Secretary, and not to a separate or independent office or program
of coastal zone management. The legal status of such an office
needs some definition. Obviously personnel will be necessary
to carry out the CZM plan and the program, and the Secretary has
the. authority to hire them. G.L. c. 21A, �6. I view OCZM
as an integral part of the Office of the Secretary, similar to the
Environmental Impact Review Board. The CZM plan itself defines
OCZM as the planning and policy-formulation arm of the Secretary
for coastal zone affairs.

1419

-25-

EFSC is established by G.L. c. 164, �69H. It is the agency

is charged with the review ana approval of the construction and siting

of all major energy facilities -- gas, electric and oil -- in

the Commonwealth. See G.L. c. 164, ��69G-69S, defining the powers

and functions of the agency. See also Plymouth County Nuclear

Information Committee, Inc. v. Energy Facilities Siting Council,

Mass. Adv. Sh. (1978) 139. A number of these provisions demon-

strate that EFSC must consider environmental impact

in all its construction and siting determinations. Thus the

guiding mandate of EFSC is to implement the Commonwealth's energy

policies so as "to provide a necessary energy supply for the

commonwealth with a minimum impact on the environment at the low-

est possible cost." �69H. Moreover, in making the specific energy

facility determinations called for under the legislative scheme,

the agency is -under an explicit command to assess the proposed

facility in relation to established environmental policies of

the Commonwealth. See ��69J, �[2 (approval of plans for construction

of new electric, gas and oil facilities), 69 0(2)(3) (approval of

certificates of environmental impact and public need); see also

��691 (electric power, gas, and oil companies applying for energy

facility construction approval to submit information showing,

inter alia, environmental impact of proposed facilities), 69L(2)

(applicants for certificates of environmental impact and public

need to submit studies of environmental impact of proposed
28/
facility).

28/
28/ The Secretary of Environmental Affairs' seat on EFSC, one of
four cabinet secretaries designated as members, see �69H, also shows
the importance of environmental considerations to the agency.

420

-26-

Furthermore, EFSC has been granted express powers to work

cooperatively with other agencies of the Commonwealth as well as

other states and the federal government. See G.L. c. 164, ��69H,

I[4, 69Q. Reading these provisions in light of the clear legis-

lative intent that EFSC consider environmental concerns, I conclude

that EFSC may agree to recognize and to act consistently with duly

promulgated EOEA regulations concerning coastal zone management

policies. Cf. Holyoke St. Ry. Co. v. Department of Public

Utilities, 347 Mass. 440, 450 (1964); cf. also New York Cent.

R.R. v. Department of Public Utilities, 347 Mass. 586, 591-592

(1964); Newton v. Department of Public Utilities, 339 Mass. 539,
29/
546-548 (1959).

29/
At the same time, it is useful to define certain limits to
the Council's authority to agree to, or to bind itself to, policies
and regulations of EOEA. I have examined the present memorandum
of understanding between EFSC and EOEA relating to the CZM plan,
which appears in the draft plan document. Included within the
memorandum is a commitment by EFSC to "give prime consideration to
the environmental impact" on critical areas of environmental
concern in reviewing facilities proposed for these areas (emphasis in
original). This covenant requires some analysis. An agency may
voluntarily limit broadly granted statutory discretion by
announcing standards for its exercise. See Dixon v. Love, 431
U.S. 105, 115 and n. 12 (1977); Service v. Dulles, 354 U.S. 363, 388
(1957); see generally K. Davis, Adminstrative Law Treatise, ��2.04,
2.05, 2.07, 2.11 (1958 and Supp. 1976). However, an agency may not
act in contradiction of its enabling legislation. E.g. Bureau of
Old Age Assistance of Natick v. Commissioner of Public Welfare,
326 Mass. 121, 124 (1950).
Here, the Legislature has commanded EFSC to consider all three
criteria of "necessary energy supply for the commonwealth,"
"minimum impact on the environment," and "lowest possible cost" in
its determinations. G.L. c. 164, ��69H, 69J, 69 0(3). At the
same time the Legislature has directed EOEA to "develop statewide
policies regarding the acquisition, protection, and use of areas of
(footnote cont.)
421

-27-

4. Does G.L. c. 21A, �2(7) or any other provision of
law authorize the Secretary to designate areas of
critical environmental concern within the coastal
zone as provided for in the CZM Plan?

General Laws, c. 21A, �2(7) provides that the EOEA "shall

develop statewide policies regarding the acquisitions, protection,

and use of areas of critical environmental concern to the

commonwealth"; St. 1974, c. 806, �40(e) (1) further specifies

that critical areas may include "the coastal zone." In short,

the plain language of these provisions empowers the Secretary,

on behalf of EOEA, to designate areas of critical environ-

mental concern within the coastal zone. As to the procedures

29/
(Continued)
critical environmental concern to the commonwealth," G.L. c. 21A,
�2(7). Such "critical areas" may include the coastal zone. St.
1974, c. 806, �40(e). To harmonize these legislative objectives,
the Council and EOEA may agree that the criterion of environmental
impact is entitled to special weight in the Council's consideration
of an energy facility site proposed for a critical area. If this
policy is the meaning of the phrase "prime consideration", it lies
within the Council's statutory power.
However, EFSC may not agree to make the environmental criterion
automatically determinative of siting decisions for critical
areas. Such a policy would contradict the statutory mandate
of the Council to weigh all three criteria of energy needs, low
cost, and environmental effect, and would therefore be invalid.
See Bureau of Old Age Assistance of Natick, supra. Had the
Legislature intended one criterion to be decisive in particular
circumstances, it plainly could have said so. In addition,
G.L. c. 164, ��691,O prescribe that the Council's consideration
of every energy facility application is to be a deliberative,
adjudicatory process. EFSC must exercise its judgment in each
instance. It cannot contract away its statutory duty to exercise
its discretion by agreement with another agency. See Mass. Const.,
Pt. 1, Art, 20; cf. Accardi v. Shaughnessy, 347 U.S. 260, 266-267
(1954).

1422

and standards the Secretary will use to designate these areas,

I note that the draft CZM plan contains proposed regulations

which treat both of these matters. Recognizing the limited

scope of my review of these suggested provisions, I conclude

that in substance they seem to represent reasonable and valid

measures. See Consolidated Cigar Corp. v.. Department of Public

Health, supra, Mass. Adv. Sh. (1977) at 1432-1437; Warner Cable

of Massachusetts, Inc. v. Community Antenna Television Commission,

Mass. Adv. Sh. (1977) 915, 925; Secretary of Environmental Affairs
30/
v. Massachusetts Port Authority, supra, 366 Mass. at 774.

B. The Questions of the Joint Committee
on Natural Resources

I turn next to the 12 questions proposed by the Joint

Committee. Many of these overlap with the four questions of

the Secretary or call for answers deriving from the discussion
31/
above. For the,,most part they can be answered more concisely.

1. Do EOEA and its constituent agencies have the
statutory authority to implement the Massachusetts
CZM program by basing such authority on St. 1974,
c. 806, now codified in G.L. c. 21A?

My response to the Secretary's first question indicates

that in my judgment, G.L. c. 21A, together with the various statutory

provisions cited in my response and in the draft CZM plan,

30/
The remaining phrases of this question (whether "any other
provision of law" similarly authorizes the Secretary to designate
areas "as provided in the CZM Plan"), are too indefinite to permit
even an informal answer.

31/
I regret I have not been able to answer all of the Joint
Committee's questions. As with some portions of the Secretary's
requests, the meaning of some portions of the questions is not
sufficiently clear to permit an adequate response. In addition, I
have declined to consider a few of the questions because they appear
to have no connection to the CZM plan in its current form or to the
EOEA's current proposed implementation of the CZM program.
423

-29-

empower EOEA and its constituent agencies to implement the CZM

program proposed by that plan. Since EOEA-does not attempt to

justify the CZM plan solely on the basis of G.L. c. 21A, it

does not seem necessary to consider that question at the

present time, and I have not done so.

2. Does the State Environmental Policy, declared in
Article 49/97 of the Constitution, mean that in
conjunction with its own specific enabling legislation,
every agency within EOEA, due to the powers and
responsibilities enumerated in G.L. c. 21A, �2,
must make its policies consistent with the CZM
program?

Article 97 of the Amendments to the Constitution, amending

art. 49 of the Amendments, declares certain broad rights of the

people to protection of the environment. It has no express

connection with the CZM program. In any event, the agencies

within EOEA have voluntarily agreed through memoranda of

understanding to make their policies consistent with that

program. In these circumstances, I need not examine the implicit

relationship between art. 49 and the CZM plan and program.

3. Does the enabling legislation outlined in the [U.S.
Department of Commerce] Draft Environmental Impact
Statement (pages 11-35 to 11-41) allow an agency to
implement the CZM without expanding [its] existing
jurisdiction as authorized by law?

As set forth in my answer to Question 1 of the Secretary,

the EOEA and its constituent agencies presently possess

sufficient statutory authority to implement the proposed

CZM program.

-30-

4. Do the existing statutes upon which EOEA relies to
implement the CZM Program create a different standard
to be applied when exercising its authority under
G.L. c. 30, �61, the Massachusetts Environmental Policy
Act; G.L. c. 131, �40A, the Inland Wetlands Restriction
Act; and G.L. c. 131, �40, the Wetlands Protection Act?

The meaning of this question is unclear. I do not

know the statutes referred to by the phrase "existing

statutes upon which EOEA relies." Moreover, I cannot

determine whether the question intends to ask if the referenced

statutes create standards of conduct different from each

other, different from G.L. c. 21A, or from other statutes.

I therefore decline to answer it.

5. General Laws, c. 21A, �3 provides that "the Secretary
shall conduct comprehensive planning with respect
to the functions of the office and shall coordinate
the activities and programs of the agencies within
the office." Does this planning authorization imply
that after development of such planning activities,
said Secretary shall have the power to implement
the plans without new legislation?

The planning authorization of G.L. c. 21A, �3, permits the

Secretary to implement plans so long as their substance lies within

the authority conferred upon the Secretary by existing legislation.

With that qualification, I answer Question 5 affirmatively.

6. Does the Office of Coastal Zone Management [OCZMI require
statutory status to implement the CZM Program as described
in Volume I and II of the [draft] CZM Plan?

OCZM does not require statutory status to implement the

program or plan presently proposed. It may implement the plan

or program as an "arm of the Secretary" under the authority of

G.L. c. 21A, 1�l, 6. See my answer to Question 2 of the

Secretary at p. 24, n. 27 supra.

425

-31-

7. Are the Memoranda of Understanding which have been
signed by the five Commissioners within EOEA and EFSC
a formal recognition of the CZM Program as a statement
of the state environmental policy, therefore compelling
such commissioners and EFSC to implement the program? If
such memoranda represent valid actions by the adopting
agencies, must such memoranda be adopted as regulations
under G.L. c. 30A in order to be enforceable?

As discussed above, the memoranda of understanding between

the Secretary and the five constituent agencies of EOEA, and between

the Secretary and EFSC, are commitments to the policy of

the CZM plan which each agency may undertake so long as it does

not exceed or violate its statutory authority or duty. The

memoranda are an expression of voluntary, practical cooperation

among the agencies. The agencies are not irrevocably or

indefinitely bound by the "understanding" in the sense of

contractual obligation. An agency might withdraw from the under-

standing if itEconcluded that wise policy or legal duty required.

As a practical matter, of course, I assume that differences of

policy between the Secretary and the five agencies of EOEA

would be Worked out among them, since the Secretary supervises

the agencies and appoints their commissioners. G.L. c. 21A,

�7. See also G.L. c. 21A, �4(1), giving conflict resolution

powers to the Secretary. Questions of legal duty could be

settled by a proper opinion request to the Attorney General

or ultimately by resort to the courts. With special regard

to the EFSC, see the discussion in answer to Question 3 of

the Secretary, supra.

426

-32-

Since -the memoranda are inter-agency instruments of general

policy, they need not be adopted as formal regulations to be

enforceable among the signatory agencies. Insofar as the policies

set forth in the memoranda will be applied to others, I note that

the documents specifically contemplate adoption or amendment of

regulations. It is accordingly unnecessary to consider further the

application of G.L. c. 30A to the memoranda themselves.

8. Is the passage of enabling or other legislation necessary
in order to empower the Secretary of Environmental Affairs
and or OCZM to implement the proposed CZM Program?

In my opinion, no further legislation is necessary. The

reasons are discussed in the answers to Questions 1, 2, and 4 of

the Secretary, supra.

9. Does EOEA have the authority to create an office of
Coastal Zone Management with the power:

(a) to determine whether applications for federal grants, W
projects or permits in the coastal zone are consistent
with the CZM Plan, and to veto any such federal grants,
projects or permits which are determined to be incon-
sistent with the CZM Plan?

(b) to intervene as a party in adjudicatory proceedings
before agencies within EOEA which may affect the
coastal zone?

As I have explained in answer to Question 2 of the'Secretary,

an "office" of Coastal Zone Management has no legal existence

independent of the Secretary. Considered in this light, Question 9

addresses the power of the Secretary to take the action described

in subsections (a) and (b).

427

-33-

(a) To the extent this question asks about the Secretary's

powers to require consistency of federally approved projects with

the CZM program pursuant to 16 U.S.C. �1456(c)(3), it is one of

federal law, which I may not properly consider. To the extent

the question asks about the Secretary's authority under

state law, I point out again that G.L. c..21A, �2(25) authorizes

EOEA to represent and act on behalf of the Commonwealth in connection

with federal grant programs. See also id. �2(28), third paragraph.

(b) Because OCZM lacks independent legal status, it may not

formally intervene in adjudicatory proceedings as a distinct party.

However the Office of the Secretary, of which it would be part and

which does enjoy statutory status, could duly intervene in such

proceedings and present views concerning the CZM program, in

accordance with G.L. c. 30A, �10. See generally Save the Bay,

Inc. v. Department of Public Utilities, 366 Mass. 667, 673-674
32/
(1975). See also G.L. c. 164, �69N.

32/
If and when the Secretary appears as an interested
party in an adjudicatory proceeding before an EOEA agency, or before
EFSC, she should avoid participation in the judicial or
decisionmaking process so as to avoid the risk of an unconstitutionally
biased outcome. The due process requirement of a fair trial before
a fair tribunal applies to administrative agencies performing
adjudicatory duties as well as to courts. Withrow v. Larkin, 421
U.S. 35, 46-47 (1975); Gibson v. Berryhill, 411 U.S. 564, 578 (1973).
See G.L. c. 164, �69H. One who personally participates in a case as
a party or on behalf of a party cannot then sit as a decisionmaker
on the same case. Trans World Airlines, Inc. v. Civil Aeronautics
Board, 254 F. 2d 90, 91 (D.C. Cir. 1958); cf. In re Murchison,
349 U.S. 133, 136-137, 138-139 (1955); American Tel. & Tel. Co. v.
Federal Communications Commission, 449 F. 2d 439, 453-455 (2d Cir.
1971); cf. also Board of Selectmen of Barnstable v. Alcoholic
Beverages Control Commission, Mass. Adv. Sh. (1977) 2434, 2439.
(Continued)

428

-34-

33/
12. Can EOEA by a memorandum of understanding bind0
EFSC to issue regulations or an administrative bulletin
to implement the CZM Plan; to recognize the CZM Plan,
as approved by the Governor, as state environmental policy;
to submit company submissions to EOEA prior to a hearing
before EFSC; to recognize the standing of OCZM in EFSC
proceedings; to give "prime consideration" to environmental
impacts of facilities proposed for areas of critical
environmental concern?

EOEA cannot "bind" the EFSC by memoranda of understanding to

undertake any of the conduct described in Question 12. The reasons

are discussed in the answer to Question 3 of the Secretary and

to Question 7 of the Committee, supra. The EFSC is "bound" only

to the performance of its statutory duties. As I have explained

32/
(Continued)
Consequently, if the Secretary were to appear as a party in an
adjudicatory proceeding before the EFSC, she should not sit as _
a member of the Council in deciding the matter. I do not consider,
however, whether she should disqualify herself if an EOEA officeW
or agency were to appear as a party before the EFSC.

33/
I must decline to answer the Committee's tenth and eleventh
questions. Both are too general and abstract to allow for
proper consideration. Moreover, it seems that answers are
not presently necessary. Question 10 asks about EOEA's power
to establish priorities of uses or prohibited uses within coastal
zone areas. Insofar as the question asks about areas of critical
environmental concern, see my answer to Question 4 of the
Secretary, supra. If the question asks about other areas,
the proposed plan does not suggest that the Secretary or
OCZM will unilaterally establish such uses. Question 11,
concerning the draft CZM plan's validity as a regulation, needs
no answer since the CZM plan is not a regulation.

4t29

-35-

34/
in those answers, however, that agency may voluntarily

undertake any of the conduct described in Question 12 as a

matter of discretionary policy, so long as its activities

do not exceed or contradict its statutory authority and duties.

Consequently, I answer the literal que n posed in the

negative.

ATTORNEY GENERAL

34/
On the status of OCZM as a party in EFSC proceedings, see
my answer to the Committee's Question 9(b) at p. 33 and n. 32
supra.
430

(zAA,04

Appendix I
M.E.P.A. Amendments

4.31

APPENDIX I

A recent amendment to MEPA (effective February 15, 1978) is
intended to retain environmental standards while providing greater
guidance to applicants early in the process and more expeditious
review of projects.

The significant revisions of the law delegate more authority
to the Secretary of Environmental Affairs and specify time frames
for decision making and permit granting. The Secretary of
Environmental Affairs, rather than the secretaries of each executive
office, is now empowered to promulgate regulations under the Act,
thus simplifying the process because only one set of regulations
will be used in determining what is required in a filing. The
provision placing the power to determine whether an environmental
impact report is required with the Secretary, rather than with the
agency involved, merely codifies how decisions were made in many
cases prior to the amendment. And by giving the Secretary power
to determine the scope of an impact report, including the range of
alternatives which must be considered, the preparation time can be
shortened, attention focused on the important issues and the size
of the report reduced.

Other provisions of the amendment aim at expediting the
process by placing responsibility for filing on the applicant
instead of the agency; requiring agencies to act on an application
within a certain number of days; and establishing procedures for
filing on emergency actions or land acquisitions in an urban
renewal project.

Since the recent amendment should allow for more expeditious
and consistent review of projects, it should complement the efforts
of the CZM policies to improve existing decision making within EOEA.

4f32

DEFINITIONS

433

I SIGNIFICANT RESOURCE AREAS*

Anadromous fish runs: areas within estuaries, streams, bays and
coastal waters which are spawning or feeding grounds for anadromous
fish. Defined by the Division of Marine Fisheries.

Barrier beach system: a narrow low-lying strip of land composed of uncon-
solidated material extending roughly parallel to the general coast and
either completely or partially separated from the mainland by a narrow
body of fresh, brackish or saline water or marsh system. Barrier beaches
are dynamic landforms that are presently migrating landward in response to
rising sea level. They serve as a buffer to protect landward public and
private property and natural areas from the force of storms and coastal
flooding. In addition, barrier beaches provide valuable natural habitats
and function as natural dynamic systems that change in response to
coastal processes (erosion and accretion, storm overwash, and dune
development).

Beach: the gently sloping shore of a body of water consistixag of uncon-
solidated material subject to wave, tidal, and coastal storm action.
Beaches extend from the mean low water line to the duneline, beachgrass
line or to the seaward edge of existing man-made structures.

Coastal embayments: marine waters that have a restricted opening to the
ocean due at least in part to the formation of a barrier beach. Unlike
estuaries or salt ponds there is very little fresh water influence.
Coastal embayments are shallow and may support healthy stands of eel grass
and populations of shellfish. Most coastal embayments support well
developed salt marsh systems.

Developed harbors: sheltered harbors and navigable channels which provide
mooring space, berths, slips, ramps, and docks serving a region-wide boat-
ing public, commercial fishermen, cruise boats, ferries, or light marine
industry. Such harbors may also present unique opportunities for the
fishing industry or for waterfront renewal and revitalization.

Dune: any low hill, mound, or ridge of sand deposited by wind action
or storm overwash or by artificial means for shoreline protection. Dunes
extend from the beach landward to the end of beachgrass vegetation or the
end of the topographic expression.

Erosion Areas: areas where there is a loss of land along the shoreline caused
either by natural forces or by the action of man. "Critical" erosion is
typically defined to mean erosion of shorefront property that causes it to
become unusable or imminently rendered unusable. Critical erosion is
evidenced by a loss in signficant recreational beach benefits, a signifi-
cant loss in other public lands or facilities, significant damage or
destruction of private property, or significant change in the morphology
of conservation land.

* Theale areas are Geographical Areas of Particular Concern as

defined in the federal Coastal Zone Management Act.

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Estuary: semi-enclosed body of water which has a free connection with
the open sea within which sea water is measurably diluted with fresh water
derived from outf lowing fresh water rivers. In most instances, the land-
ward extent of the mixing of fresh and salt water is shown by the presence
of salt water marshes which form along the banks of the river.

Floodplains:- coastal lands located within the 100 year flood zone, as
defined by the Army Corps of Engineers flood profiles.

Historic sites or districts: man-made sites of historic, archeological,
architectural, or cultural value listed on the National Register of His-
toric Places. Districts established by special legislative act or pursu-
ant to MGLA Chpater 40G.

Port areas: locations that include navigable channels of 20 foot depth
or more, lands abutting the channels which are suited for marine dependent
or industrial use, and well-developed road and rail links leading to major
arterial and truck routes. Such locations are also served by public water
supply and sewage treatment systems capable of accommodating heavy indus-
tiral use and are separated or remote from residential neighborhoods and
commercial business districts.

Public recreational beaches: suitable, sandy beaches with adequate
access which provide recreation opportunities for a region-wide public.

Salt marsh: high marshes are low-lying coastal wetlands characterized
by the presence of Spartina patens. These marshes are flooded by seasonal
high tides. Low saltwater marshes are areas vegetated by Spartina
alterniflora. This land is submerged by normal tides.

Salt ponds: a shallow enclosed or semi-enclosed bay of saline water
formed as the result of glaciation or barrier beach formation at the mouth
of a shallow bay. Salt ponds are subject to fresh water influence from
small streams emptying into the upper reaches of the pond or springs along
the periphery and/or in the pond itself. Salt marsh vegetation usually
forms a fringe around the pond.

Shellfish beds: areas of bottom which,-in combination with other envir-
onmental factors, favor the establishment and reproduction of harvestable
shellfish; blue mussel, oyster, quahog and soft shell clams, bay scallops,
sea clam, and ocean quahog. Bottom areas with associated Zostera marina
serve in places as bay scallop nurseries. Defined by the Division of
Marine Fisheries.

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TI ABBREVIATIONS

A-95 Review established by the Intergovernmental Coordination
Act of 1968. This review process ensures that federal
agencies are made aware of state, regional and local con-
cerns about the compatibility of proposed federally funded
projects with other state or federal programs.

ACEC Area of Critical Environmental Concern

APR Area for Preservation or Restoration

BLM Bureau of Land Management

BOR Bureau of Outdoor Recreation

BPD Barrels Per Day

BRA Boston Redevlopment Authority

CAC Citizen Advisory Committee

CCPEDC Cape Cod Planning and Economic Development Commission

CFR Code of Federal Regulations

CZM Coastal Zone Management

CZMA Coastal Zone Management Act

DCA Department of Community Affairs

DCS Division of Conservation Services

DEM Department of Environmental Management

DEQE Department of Environmental Quality Engineering

DFW&RV Department of Fisheries, Wildlife and Recreational Vehicles

DLE Division of Law Enforcement

DMF Division of Marine Fisheries

DOC Department of Commerce

DOI Department of Interior

DOT Department of Transportation

DPW Department of Public Works

DWPC Division of Water Pollution Control

436

DWT Dead Weight Ton

EDA Economic Development Administration

EDIC Economic Development and Industrial Corporation

EFSC Energy Facilities Siting Council

EIS Environmental Impact Statement

EOCD Executive Office of Communities and Development

EOTC Executive Office of Transportation and Construction

EOEA Executive Office of Environmental Affairs

EPA Environmental Protection Agency

ERDA Energy Research and Development Administration

FAA Federal Aviation Administration

FEA Federal Energy Administration

FIA Federal Insurance Administration

FIRM Flood Insurance Rate Maps

FPC Federal Power Commission

FRC Federal Regional Council

GAPC Geographical Area of Particular Concern

GSA Unites States General Services Administration

HEW Health, Education and Welfare (Department of)

HUD Housing and Urban Development (Department of)

LNG Liquid Natural Gas

MACC Massachusetts Association of Conservation Commissions

MAPC Metropolitan Area Planning Council

MARAD Maritime Administration, Department of Commerce

MBTA Massachusetts Bay Transportation Authority

MCZM Massachusetts Coastal Zone Management

MDC Metropolitan District Commission

MEPA Massachusetts Environmental Policy Act

437

MGLA Massachusetts General Laws Annotated

MOU Memorandum of Understanding

MVC Martha's Vineyard Commission

MVPC Merrimack Valley Planning Council

NAAQS National Ambient Air Quality Standards

NEIWPCC New England Interstate Water Pollution Control Commission

NEPA National Environmental Policy Act

NEPOOL New England Power Pool

NERBC New England River Basins Commission

MERCOM New England Regional Commission

NESHAPS National Emission Standards for Hazardous Air Pollutants

NFIP National Flood Insurance Program

NMFS National Marine Fisheries Service

NOAA National Oceanic and Atmospheric Administration

NPDES National Pollution Discharge Elimination System

NPEDC Nantucket Planning and Economic Development Commission

NPS National Park Service

OCS Outer Continental Shelf

OCZM Office of Coastal Zone Management

OSP Office of State Planning

SADA Special Assistance Development Area

SCORP State Comprehensive Outdoor Recreation Plan

SENE Southeastern New England Study

SNG Synthetic Natural Gas

SRA Significant Resource Area

SRPEDD Southeast Regional Planning & Economic Development District

RPA Regional Planning Agency

UMTA Urban Massachusetts Transit Association

438

USDA/SCS Unites States Department of Agriculture/
Soil Conservation Service

USF&W United States Fish and Wildlife

USGS United States Geological Survey

439