The Latest on the DEP’s “Pile Policy”: If the Tides Rise, Do Structures Still “Exist”?

Back in September, we wrote about MassDEP’s Proposed Interpretation of Chapter 91 regulations, which attempted to provide guidance to the regulated community on the conditions under which a historic pile field can contribute to the “project shoreline” — the outer boundary of a development proposal.  The issue that the policy seeks to address arose as the DEP reviewed an application for a Chapter 91 license for Lewis Wharf in Boston.   The Lewis Wharf developers are seeking to build a luxury hotel on the waterfront over the footprint of an old pile field, portions of which have fallen into disrepair.

MassDEP published the proposed interpretation for public comment, and received 194 pages of comment letters.  Commenters had a lot to say, much of it supporting the interpretation on grounds not even mentioned in the policy.   Numerous individual commenters supported the policy as a way to stop the Lewis Wharf project, preserve existing view corridors, protect the “charm” and “character” of the neighborhood, prevent increased traffic, etc.   Of the comments that focused on policy (vs. project-specific) issues, most supported the interpretation as public safety measure, hoping it would encourage the removal of dilapidated and broken piles and the elimination of navigational hazards.

One might say these grounds for support are unrelated to the policy’s purpose, but that would require the policy to have a stated purpose.   The closest thing to a statement of purpose it provides is a notation that its interpretation is “important” to the Lewis Wharf project and will provide “guidance on how the Department will analyze future projects on sites with historic pile fields.”

Safety and navigational hazards are not mentioned anywhere in the interpretation.  This is almost certainly because the Department already has provisions in its Chapter 91 regulations it can utilize to require the removal of any structures that are deemed to be a hazard to navigation.  Importantly, those provisions require the Department to notify the license holder and allow for a reasonable opportunity to repair or reconstruct a structure (310 CMR 9.26(1)(a)).  Under the new interpretation, no notice or opportunity to correct is provided, nor is there any time period provided to come into compliance with the new de facto maintenance standards.

Among other flaws resulting from addressing a site-specific issue with a broad brush, the Department has provided an interpretation of “existing” that would apply not only to pile fields, but also to piers, wharves, and other filled and pile-supported structures.  “Existing”, under the new definition, would require “any extant structures” to “remain above the highest predicted tidewater elevation at a specific site (Extreme High Water Mark)”.  As we all know, the highest of high tides in Boston can put many parts of Boston’s waterfront underwater, as shown in the photo below from the October 18, 2016 King Tide at Lewis Wharf.   Careful kids, don’t you know that wharf doesn’t exist?

Source: Boston.com

The Department has listed the interpretation as one of its policy initiatives for 2017.  Stay tuned.

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