Environmental Law and Compliance

Massachusetts has a diverse landscape, from mountains and coastal areas, to suburbs and the booming city of Boston. Much of the undisturbed land in Massachusetts is, in fact, conservation land, which triggers a number of regulations and things for homeowners and contractors alike to consider before commencing a construction project. Some may require insight or guidance from a construction environmental regulation attorney.

Our firm’s Massachusetts construction lawyers in Boston and Burlington advise homeowners and construction companies on any and all limitations that may affect their construction projects that are located near conservation land.

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1. 1. LAND USE ABUTTING AREAS MARKED FOR CONSERVATION

The Environmental Protection Agency (EPA) serves as the federal government’s policymaker when it comes to maintaining a healthy environment. Much of its role has been delegated to the States, which may make their own policy supplementing those of the EPA. The Department of Environmental Protection (DEP) serves as Massachusetts’ enforcement agency.

1. 1. • Clean Water Act

Under Section 404 of the Clean Water Act, the Secretary of the Army, through the Army Corps of Engineers, is authorized to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). The Administrator of the Environmental Protection Agency (the “Administrator”) may reject or rescind an area’s specification as a disposal site, “whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c). These requirements, and the regulations that enforce this statute, exempt discharge:

1. 1. • • from normal farming, silviculture, and ranching activities, such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;
        • for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures;
        • for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches;
        • for the purpose of construction of temporary sedimentation basins on a construction site, which does not include placement of fill material into the navigable waters;
        • for the purpose of construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized;
        • resulting from any activity with respect to which a State has an approved program under section 1288(b)(4) of this title, which meets the requirements of subparagraphs (B) and (C) of such section,

33 U.S.C. 1344(f)(2); see also 40 C.F.R. § 232.3. Obtaining a general permit requires the permitting authority to determine that three conditions are met:

1. 1. • 1. The activities in such category are similar in nature and similar in their impact upon water quality and the aquatic environment;
        2. The activities in such category will have only minimal adverse effects when performed separately; and
        3. The activities in such category will have only minimal cumulative adverse effects on water quality and the aquatic environment.

40 C.F.R. § 230.7(a). The “aquatic environment and aquatic ecosystem mean waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.” 40 C.F.R. § 230.3(b). Except for the conditions of 33 U.S.C. § 1344(b)(2), discharge will not be permitted under four circumstances: (a) A practicable alternative that will have a less adverse effect exists; (b) The discharge:

1. 1. • 1. Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard;
        2. Violates any applicable toxic effluent standard or prohibition under section 307 of the Act;
        3. Jeopardizes the continued existence of species listed as endangered or threatened under the Endangered Species Act of 1973, as amended, or results in likelihood of the destruction or adverse modification of a habitat which is determined by the Secretary of Interior or Commerce, as appropriate, to be a critical habitat under the Endangered Species Act of 1973, as amended. If an exemption has been granted by the Endangered Species Committee, the terms of such exemption shall apply in lieu of this subparagraph;
        4. Violates any requirement imposed by the Secretary of Commerce to protect any marine sanctuary designated under title III of the Marine Protection, Research, and Sanctuaries Act of 1972[;]

(c) the Discharge will “cause or contribute to significant degradation of the waters of the United States.”; or (d) “unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.” 40 C.F.R. 230.10.

Massachusetts law prohibits the alteration of land that borders water unless written notice of the intent to do so is given, as a construction environmental regulation lawyer in Boston, MA will advise you. M.G.L. c. 131, § 40; see also 310 C.M.R. 10.00. Said notice will also include “such plans as may be necessary to describe such proposed activity and its effect on the environment and without receiving and complying with an order of conditions and provided all appeal periods have elapsed.” M.G.L. c. 131, § 40. The plans will be provided to the conservation commission, if extant, of the municipality in which the land is located; if there is no conservation commission, should be given to the mayor or the board of selectmen. Id. It is very important that this be dealt with as quickly as possible. Otherwise, it can hold up the potential sale of property.

Similar laws exist regarding the location of waste management plants within Massachusetts. See, generally, M.G.L. c. 21D.

1. 1. • Pollution Prevention Act

Passed by Congress in 1990, this statute ordered the EPA to develop a strategy that would encourage source reduction:

1. 1. • The term “source reduction” means any practice which—
        • reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and
        • reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.
          The term includes equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training, or inventory control.
      • The term “source reduction” does not include any practice which alters the physical, chemical, or biological characteristics or the volume of a hazardous substance, pollutant, or contaminant through a process or activity which itself is not integral to and necessary for the production of a product or the providing of a service.

42 U.S.C. § 13102(5). To do so, the EPA Administrator may make grants to states who “promote the use of source reduction techniques by businesses.” 42 U.S.C. § 13104(a).

The Department of Environmental Protection (DEP) serves as Massachusetts’ enforcement agency. A construction environmental compliance attorney in Boston, MA, can explain how the DEP’s rules may influence your business.

How to Contact the Experienced Massachusetts Conservation Land Attorneys at Calabrese Law Associates in Boston and Burlington, Massachusetts

If you have a question about a conservation land in Massachusetts, wonder if your neighbor’s water runoff is legal or if you are interested the regulations that may limit your construction project in Massachusetts, we encourage you to contact our offices in Boston or Burlington, Massachusetts. It’s important to address conservation land regulation issues right away, before violations occur during construction. A construction environmental regulation lawyer can help address any concerns you may have.

To contact our office, simply call us at 617-340-6623 or fill out our client intake form, and one of the firm’s construction lawyers will get in touch with you within one business day.