A recent MassDEP administrative decision, In the Matter of Armstrong (pdf), proves that you can fight City Hall (in this case, MassDEP) and win.  However, it also demonstrates the level of effort needed to be victorious.  At issue in Armstrong was the accuracy of the 2006 Chapter 91 Mapping Boston skyline.jpgProject that was performed to establish presumptive Chapter 91 lines of jurisdiction over tidelands.  The Mapping Project involved the review of approximately 3,000 plans, ten percent of which were deemed reliable enough to be used to map presumptive lines by determining the location of the historic high water mark (“HHWM”).  Once the HHWM was set, it established MassDEP’s presumed Chapter 91 jurisdiction over all land seaward of the HHWM.

Armstrong, agent for the petitioning real estate trust (Trust), challenged MassDEP’s Chapter 91 jurisdiction to regulate portions of the Trust’s property in Marshfield, Massachusetts, arguing that those areas are located landward of the HHWM.  The burden was on the Trust to prove, by a preponderance of the evidence, that MassDEP’s presumptive HHWM was inaccurate.

The Trust first attacked the reliability of the plans attached to the controlling Chapter 91 licenses prepared for the property by the Trust’s predecessor.  Specifically, the Trust asserted that the 1991 Chapter 91 license plans were unreliable because the 1831 plan on which its predecessor’s engineer relied didn’t “have sufficient detail to render any reliable conclusion regarding the location of the HHWM.”  MassDEP’s expert witness appeared to agree that the 1831 plan was not prepared for the purpose of locating high water lines.  The Presiding Officer noted that despite the deficiencies of the 1831 plan, MassDEP still – at least in part – relied on the 1831 plan for the 2009 Chapter 91 HHWM for that area.  Accordingly, the Presiding Officer found that the 1991 Chapter 91 license’s HHWM plan “had little or no probative value” because it was based on the “unreliable” 1831 plan.   

Having proved that the 1991 Chapter 91 license was flawed, the Trust turned to additional historical plans from 1858 and 1909 on which MassDEP had relied to set HHWM presumptive lines.  The Trust’s experts methodically debunked the accuracy of those plans with several highly technical arguments, and convinced the Presiding Officer that the HHWM – and thus MassDEP’s jurisdiction – was further seaward than indicated by the presumptive lines. 

While the Trust emerged victorious, the Commissioner’s comments in adopting the Presiding Officer’s decision are a warning to those thinking of challenging MassDEP’s presumptive lines:  “I wish to emphasize that this case represents the exceptional instance in which a party has presented unusually compelling, site-specific evidence, backed by expert testimony, to rebut the historic high water mark established by the 2006 Chapter 91 Project Mapping project.”  [Emphasis added].

Armstrong raises several important questions.  How many current Chapter 91 licenses are based on unreliable plans such as the 1831 plan, and thus are open to challenge?  How many of MassDEP’s presumptive lines are based on other flawed plans, such as the 1858 and 1909 plans?  In light of Armstrong, the answers to these questions may be, “a lot more than we thought.”  Also, to what expense will Chapter 91 regulated entities go in challenging MassDEP’s Chapter 91 jurisdiction?  The amount of evidence and expert testimony in Armstrong was substantial, especially considering the value of the suburban property at issue.  Consider the economics of having an additional 50 feet of non-Chapter 91 regulated property along the Boston waterfront:  such land could have a value in the millions of dollars, making a challenge well worth the expense.  At the very least, Chapter 91 license holders whose licenses pre-date the Mapping Project should compare their license plans depicting the HHWM with the current presumptive lines for accuracy.  They may find an easy and relatively economical path to mount a successful Chapter 91 jurisdictional challenge, leaving us with the larger question of whether at least some of MassDEP’s Chapter 91 jurisdiction is based on a fiction.  Despite the Commissioner’s admonition, given the power of Chapter 91 to affect waterfront development, MassDEP may soon see more challenges to its presumptive lines.