This article was written by Pat Murphy and originally appeared in Lawyer’s Weekly.
Environmental law attorneys like a wetlands bill signed into law last month that dramatically reduces the power of cities and towns to regulate development projects.
The General Assembly passed Senate Bill 737 in June, and the measure was signed by Governor Gina M. Raimondo on July 29.
The key provisions of the new law require the establishment of a single set of state standards for freshwater wetland buffers and setbacks, essentially preempting local efforts.
“This basically says that, once the statute passed, the municipalities can’t enact new regulations to set standards, and, once the state regulations come out, the municipalities can’t enforce conflicting standards,” said Providence attorney John M. Boehnert, who practices in the areas of real estate, land use and environmental law.
Jennifer R. Cervenka called the amendments a “major change” in state law.
“It has been absolutely maddening and hard to explain to a client that there’s not one set of standards and not one decision-maker that determines the outcome of their proposed wetlands alteration or construction,” said Cervenka, who practices environmental and land use law at Partridge, Snow & Hahn in Providence.
Developers are telling Providence attorney Marisa A. Desautel that they are looking forward to having a streamlined permitting process with consistent rules under the new law. “The new Wetlands Act takes away the town’s ability to object to the project and instead gives the Department of Environmental Management and the Coastal Resources Management Council sole authority to look at a project and determine whether or not it’s appropriate for a permit,” Desautel said.
Uniform state standards
The new wetlands bill amends the state’s zoning statute to make the state the sole authority for enacting wetland laws and regulations.
With the enactment of G.L. §45-24-30(b), “a city or town shall no longer be authorized to adopt as a provision of its zoning ordinance new requirements that specify buffers or setbacks in relation” to wetlands.
The amendments introduced the concept of a “buffer” to state environmental law, which is defined by statute as an area of “undeveloped vegetated land” adjacent to a freshwater wetland. Buffers are included in the statutory definition of “jurisdictional area” subject to state wetland regulation. The new law defines “setback” as the minimum distance from the edge of a freshwater wetland at which “an approved activity or alteration may take place.”
The legislation directs the DEM and the CRMC to promulgate regulations for freshwater wetland buffers and setbacks within the next 12 months.
Under G.L. §45-24-30(c), once the state issues new regulations to designate wetland buffers and setbacks, “cities and towns shall be prohibited from applying the requirements in existing zoning ordinances pertaining to both wetland buffers and onsite wastewater treatment system setbacks to development applications.”
In addition, §45-24-30(d) requires cities and towns to amend their ordinances and regulations to conform to state law within 12 months of the effective date of the new state regulations.
Cervenka said it was critical that the new law vested state environmental protection agencies with rulemaking authority because those agencies have the scientific expertise needed to determine the best, most feasible measures for protecting wetlands.
“With all due respect to the cities and towns, they simply don’t have the staff to develop … standards that make sense,” she said.
Desautel, who spent eight years as senior legal counsel at the DEM before starting a private practice this year, agreed that agency leadership in the rulemaking process will be essential to formulating science-based wetland regulations that are fair to all stakeholders.
Robin L. Main is co-chair of Hinckley Allen’s environmental law group. The Providence attorney called the wetlands legislation a “game-changer” for developers.
“Instead of having two masters to try to get some accommodations from, now you know you have one-stop shopping,” she said. “Hopefully it will expedite the process as well. Death by delay is oftentimes the killer [in real estate development].”
Main believes that an important but overlooked aspect of the new wetlands law is increased transparency.
G.L. §2-1-27 directs the DEM and CRMC to establish procedures that will “provide municipalities and the public with access to information concerning freshwater wetland permit applications filed with the state.”
“I really welcome this,” she said.
Main explained that provision will be particularly helpful to developers who want to know how an agency has ruled in similar circumstances.
“Right now that’s a tough research project to do in Rhode Island,” she said.
Loophole for cities and towns?
Cervenka admitted to having a concern that the amendments may contain a loophole that will allow municipalities to attempt to regulate wetlands in a backdoor manner.
Tucked away in §2-1-20.1(c) is a provision instructing that state regulations designating buffers “shall include a procedure that allows a municipality to petition the agency director with jurisdiction to increase the size of the buffer within the designated jurisdictional area protecting one or more freshwater wetland resources.”
“So the towns are not completely precluded from being involved in the process,” Desautel said. “They can come back and say, for example, that they have a particular area that they’re concerned with and ask [the DEM] to increase the size of the buffer with respect to that area resource.”
Cervenka speculated that municipalities may use their right of petition to get exceptions to the uniform standards adopted by the state. According to Cervenka, the DEM and CRMC will need to base any such exceptions on sound scientific reasoning.
“It can’t be just a regular occurrence that a municipality can come in and say we want to do something different from the uniform standard because then we’ll be back to the same place we were at before this legislation,” she said.
Boehnert is also wary of whether the new law includes a loophole that municipalities will be able to exploit.
“We’ll see,” he said. “The question is whether this is going to gum up the process a bit because the municipalities want notice and ability to have input in the permitting process at the state level, although it’s not supposed to be done to cause delay.”
The claim by legislators that the bill is a balanced measure that both strengthens wetland protections while serving the needs of the business community is evidenced by the fact that it was supported by the Small Business Administration and Rhode Island Builders Association on the one hand, and the Audubon Society and Save the Bay on the other.
Main said environmentalists should be happy with the new law.
“My educated hunch is that there are going to be more areas protected,” said Main. “But I don’t think it is going to be dramatic where you have land that will be rendered undevelopable because of these regulations.
Main also feels that the new legislation will strengthen wetland protections simply because regulatory authority will be placed under one roof.
In addition to buffers and wetlands themselves, the jurisdictional area includes floodplains as well as contiguous areas that extend outward 200 feet from the edge of a river or stream, 200 feet from the edge of a “drinking water supply reservoir,” and 100 feet from the edge of “all other freshwater wetlands.”
Property owners and developers are prohibited under §2-1-21(a)(1)(ii) from undertaking “any activity within a jurisdictional area … that may alter the character of the freshwater wetland, buffer, or floodplain without first obtaining the approval of the director of the department of environmental management.”
Although Boehnert acknowledges that the new law is a step forward, he’s withholding his unconditional stamp of approval until he gets a chance to see the wetland regulations from the state.
“The question will be with some of these jurisdictional areas,” he said. “They may be jurisdictional, but [a property owner] may still be able to do things in it. We’ll see when the regulations come out.”
Boehnert said he’s also concerned whether the forthcoming regulations on municipal input will provide cities and towns ways to delay the permitting process.
“I think the DEM is going to be careful in that regard,” he said. “The tug of war will come with the municipalities that are sometimes more aggressive in pushing the DEM further than they might ordinarily go.”