Dianne R Phillips is a attorney in Holland & Knight's Boston office
On May 23, 2018, the Designation Decision for the South Boston Designated Port Area (DPA) was published in the Environmental Monitor. It marks one step, but not the end of the journey, for the owner and developer of the former Boston Edison Power Plant (BECO Plant) which was decommissioned in 2007, who sought in June of 2017 to have its property, previously located within the South Boston DPA, reviewed under applicable Massachusetts regulations, 301 CMR 25.00, to determine if it continued to meet applicable criteria. Massachusetts designated port areas or DPAs were established in 1978 to protect industrial water dependent port uses with the dual policy goals of promoting water dependent industries important to the state's economy and preventing loss of areas particularly well suited to such industries.
The Executive Office of Energy and Environmental Affairs Office of Coastal Zone Management (CZM) agreed to re-evaluate the DPA boundary surrounding the BECO Plant in July 2017. At that time it also expanded the area to be reviewed to include the entire portion of the DPA located south of the Reserved Channel between Summer Street and the easterly edge of Conley Terminal consisting of 13 parcels. Three planning units were evaluated during the year-long process: the Haul Road North Planning Unit, the Haul Road South Planning Unit, and the Day Boulevard Planning Unit. After soliciting public comment and holding a public hearing, CZM issued its Boundary Review Report and draft designation on Feb. 7.
Finding that Massport's Thomas J. Butler Dedicated Freight Corridor, commonly known as the "haul road," which opened in September 2017 bisects the DPA into two functionally separate areas, CZM concluded there should be no change to the Haul Road North Planning Unit, but areas of the Haul Road South Planning Unit did not continue to meet the criteria for DPA designation and should be removed from the South Boston DPA. In addition, areas not previously included in the DPA consisting of the 28 acre Day Boulevard Planning Unit should be added to the DPA. Specifically, CZM found that the Haul Road South Planning Unit, which extended from Summer Street to the Thomas J. Butler Memorial Park, had not been used for water dependent uses for more than a decade and much of it was functionally separated from the shoreline by the new haul road. The Day Boulevard Planning Unit had been included in the CZM review at the request of Massport in an effort to include a portion of the Paul W. Conley Container Terminal not previously designated.
On May 10, 2018, CZM issued its final Designation Decision for the South Boston Designated Port Area essentially adopting the prior report and rebutting the comments which objected to the revisions. The end result was that the South Boston DPA was increased from 137 acres to 140 acres, and that the BECO Plant property was free of the DPA restrictions. It remains to be seen whether appeals will be taken, but if history is any guide as described by the Boston Globe not everyone will think the decision is a win-win one for Boston.
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