18
O
n February 4, 2015, the New
England District of the US Army
Corps of Engineers (Corps) re-issued
the Massachusetts General Permit (GP).
1
Contrary to the Corps’ longstanding history
of conducting extensive outreach through a
public review process prior to issuing past
GP’s for Massachusetts, the MA GP was issued
in the unusual circumstance of holding no
public hearings and accepting no public
comment. Instead, in an unprecedented move, the Corps suggested
that the public process followed for the failed New England General
Permit (NE GP) proposal provided sufficient process for input on
the Massachusetts-specific provisions. Since the MA GP was issued,
the Corps has issued advance notice of the re-issuance of the GP
for the State of Maine, and in that circumstance, is following the
regulatory requirements for the re-issuance of the Maine GP. As a
result, the re-issuance of the MA GP resulted in the re-introduction
of significant regulatory obstacles for certain types of activities.
Specifically, through the issuance of the Massachusetts GP, the New
England District, in taking its lead from Corps Headquarters, once
again seeks to significantly expand the jurisdictional reach of “waters
of the United States” to regulate both uplands and wetlands that have
nothing to do with navigation or clean waters (the Congressional
authority granting the Corps jurisdiction for specific regulatory
activities). For example, the factual basis provided by the Corps on
the new regulatory requirements for vernal pools clearly identifies
the stated goals of protection of certain wildlife and associated
habitat and not the protection of the “waters.” In addition, the Corps
Draft Mitigation Guidance issued on March 3, 2015 is extraordinarily
cumbersome, is much too subjective, and is entirely inconsistent
with other regulatory standards of the Massachusetts Department of
Environmental Protection.
The HBRAMA has been working with NAHB in efforts to re-examine
the Corps’ re-issuance of the MA GP. The HBRAMA’s request for
funding from the NAHB’s Legal Action Committee was recently
approved at the NAHB’s Spring meeting. Both the NAHB and the
HBRAMA hope to persuade the New England District to re-start the
MA GP process by holding public sessions and by accepting and
responding to a meaningful public comment process so that those
in the regulated community affected by the MA GP will have their
voices heard.
Meetings with Mass. Secretary of Energy and Environmental
Affairs and Commissioner of Mass. Department of
Environmental Protection
Through the efforts of our lobbyists, Ben Fierro and Patricia Lynch, a
contingent of homebuilder members had very informative meetings
with Secretary of Energy and Environmental Affairs, Matthew Beaton
on March 18, and MA DEP Commissioner Martin Suuberg on April
30, 2015. These key regulators newly appointed by Governor Charlie
Baker have gathered impressive staffs and were quite receptive to
the Wetland and Water Resource Committees’ targeted ideas of
potential regulatory reforms, most of which have both economic and
environmental benefits and may result in offering new solutions to
some of the restrictive regulatory barriers which serve to slow down
housing production and make housing more expansive to build and to
buy. Over the next several months, we hope to develop a clear dialogue
on several HBRAMA initiatives.
Submitted by: Jeffrey Brem, PE, Meisner Brem Corp. and
Chair, HBRAM Wetland and Water Resources Sucommittee
1
general-permits-for-massachusetts.aspx
By Jeffrey Brem, PE, Meisner Brem Corp. and Chair, HBRAM Wetland and Water Resources Subcommittee
By Jeffrey Brem
MA Programmatic General Permit –
US Army Corps of Engineers
A F FA I R S
Government
