§ 40A — Orders protecting inland wetlands

Section 40A. The commissioner of environmental protection shall from time to time, for the purpose of preserving and promoting the public safety, private property, wildlife, fisheries, water resources, flood plain areas and agriculture, adopt, amend or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering or polluting inland wetlands. In this section, the term ''inland wetlands'' shall include the definition of ''freshwater wetlands'' as set forth in section forty, and it shall further include that portion of any bank which touches any inland waters of any freshwater wetland, and any freshwater wetland subject to flooding.The commissioner of environmental protection shall protect flood plain areas by establishing by order that, along any waterway or flood-prone area lines beyond which in the direction of the waterway or flood-prone area, no obstruction or encroachment shall be placed by any person, firm or corporation, public or private, unless authorized by the commissioner. Said commissioner, in establishing such encroachment lines shall base their location on the boundaries of the area which have been mapped, designated and recorded as inland wetlands in accordance with the provisions of this section.The commissioner of environmental protection shall, before adopting any such order under the preceding paragraphs, hold a public hearing thereon in the city or town or watershed region in which the inland wetlands or flood plains to be affected are located, giving notice thereof to the state reclamation board, the department of environmental management, the Massachusetts Water Resources Authority, the selectmen, conservation commissioners and assessors of each such city or town, and each assessed owner of such wetland or flood plains by certified mail at least twenty-one days prior thereto. For the purposes of this section, the person to whom the land was assessed in the last preceding annual tax levy shall be deemed to be the assessed owner thereof, and the notice shall be addressed in the same manner as the notice of such tax levy unless a different owner or a different address is known by said commissioner to be the correct one in which case the notice shall be so addressed. No order shall be adopted until it is approved by the selectmen or city council of the town or city in which said wetlands or flood plains are located; provided, however, that if the selectmen or the city council fail to approve or disapprove in writing, stating reasons for such disapproval, such proposed order within thirty days after receipt of a written request from said commissioner such order shall be deemed to have been approved; and provided, further, if such order is so disapproved said commissioner may, after expiration of six months from the date of such disapproval and after due consideration of the reasons for such disapproval, adopt such order or amended order.Upon the adoption of any such order or any order amending or repealing the same, the commissioner of environmental protection shall cause a copy thereof, together with a plan of the lands affected and a list of the assessed owners of such lands, to be recorded in the registry of deeds or the office of the assistant recorder for the district wherein the land lies, and shall send by certified mail a copy of such order and plan to each assessed owner of land affected and to the clerk and board of assessors of each city or town in which the land is located. Such order shall not be subject to the provisions of chapter one hundred and eighty-four. The superior court shall have jurisdiction to enforce, and remedy violations of such orders.Any person having an ownership interest, any lessee holding a lease of twenty-five years length or more and any mortgagor having an interest in land affected by any such order, may within ninety days after receiving notice thereof, petition the superior court to determine whether such order so restricts the use of his property as to deprive him of the practical uses thereof and is therefore an unreasonable exercise of the police power because the order constitutes the equivalent of a taking without compensation. If the court finds the order to be an unreasonable exercise of the police power, as aforesaid, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such finding shall not affect any other land than that of the petitioner. The commissioner of environmental protection shall cause a copy of such finding to be recorded forthwith in the proper registry of deeds or, if the land is registered, in the registry district of the land court. The method provided in this paragraph for the determination of the issue of whether any such order constitutes a taking without compensation shall be exclusive, and such issue shall not be determined in any other proceeding, nor shall any person have a right to petition for the assessment of damages under chapter seventy-nine by reason of the adoption of any such order. Any person who violates any such order, (a) shall be punished by a fine of not less than one hundred nor more than twenty-five thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b) shall be subject to a civil penalty not to exceed twenty-five thousand dollars for such violation. Each day such violation continues shall constitute a separate offense.The department of environmental management may, after a finding has been entered that such order shall not apply to certain land as provided in the preceding paragraph, take the fee or any lesser interest in such land in the name of the commonwealth by eminent domain under the provisions of chapter seventy-nine and hold the same for the purposes set forth in this section. No such order shall prohibit, restrict or regulate the use or improvement of land or water for agricultural purposes without the written consent of the owner, provided, however, that any subsequent nonagricultural use of land which was filled or drained for agricultural purposes at a time when said land was subject to an order under this section may be regulated, restricted, or prohibited by such order. No such order shall prohibit, restrict or regulate the exercise or performance of the powers and duties conferred or imposed by law upon the Massachusetts Water Resources Authority, the division of fisheries and wildlife, the Massachusetts aeronautics division, or the state reclamation board, or any mosquito control or other project operating under or authorized by chapter two hundred and fifty-two. If after following the procedures hereinbefore set forth, no such order has become effective as to any particular land or interest therein, the department of environmental management may, subject to a specific appropriation for the purpose, take such land or interest therein by eminent domain, or may acquire the same by purchase, gift or otherwise. Awards of damages, expenses of acquisition of land and water, and expenses incidental thereto and to the preparation of maps and plans of the lands to be affected, to the holding of hearings, and to the adoption and recording of orders, as provided in this section, may be paid out of funds made available for the purpose of section three of chapter one hundred and thirty-two A.