KATHARINE ARMSTRONG & others [Note 1] vs. SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS & others. [Note 2] CONSERVATION LAW FOUNDATION & others [Note 3] vs. SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS & another. [Note 4]

WENDLANDT, J. Rooted in ancient times, the "public trust doctrine" provides that the government holds tidelands in trust for the benefit of the public for traditional, water-dependent uses such as fishing, fowling, and navigation, as well as for nontraditional, nonwater-dependent uses that serve a proper public purpose. In G. L. c. 91 (Waterways Act), the Legislature has delegated to one agency -- the Department of Environmental Protection (department) -- the responsibility of making licensing decisions for both water- and nonwater-dependent uses. Consistent with its public trust responsibilities, the department has promulgated regulations, which, inter alia, set certain specifications for buildings within one hundred feet of protected tidelands. The regulations also purport to allow the Secretary of Energy and Environmental Affairs (Secretary or EEA) to override the department's specifications by approving substitute specifications as part of a municipal harbor plan (MHP). While the department may provide a recommendation for the Secretary's consideration during the MHP approval process, its input is not binding on the Secretary. Nonetheless, where a proposed project falls within the area covered by an MHP and meets the substitute specifications approved by the Secretary, the department effectively must license the project as consistent with the requirements of G. L. c. 91 that, inter alia, the proposed project serves a proper public purpose. In these cases, we consider the question whether the department had the authority to delegate this override authority to the Secretary.

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We conclude that the delegation was ultra vires. [Note 5]

1. Background. The present cases concern the Boston Planning and Development Agency's MHP, which was approved by the Secretary in April 2018 and, as relevant here, covers two sites -- the Harbor Garage and the Hook Wharf sites -- located on filled tidelands within one hundred feet of the Boston Harbor high water mark. In providing its recommendation to the Secretary in connection with the MHP review process, the department wrote that it "will adopt as binding guidance in all [l]icense application review any [s]ubstitute [p]rovisions contained in the Secretary's final [d]ecision on the [MHP]."

As approved, the MHP contemplates the construction of structures including dimensional and other specifications that deviated (sometimes substantially) from those set forth in the department's regulations. Specifically, the approved MHP contemplated the construction of a 600 foot tall tower at the Harbor Garage site and a 305 foot tall building at the Hook Wharf site; by contrast, the department's regulations generally impose a fifty-five foot height limit at the water's edge with graduated increases inland. See 310 Code Mass. Regs. § 9.51(3)(e) (2017). The approved MHP also would authorize an additional thirty feet of height allowance for the proposed buildings at both sites "to accommodate the relocation of existing building mechanicals to roof or upper floors" to "increase the planning area's resilience to current and future hazards." The approved MHP also sets forth standards for the lot coverage of each site, allowances that deviate from the department's standards. See 310 Code Mass. Regs. § 9.51(3)(d) (2017) (requiring "at least one square foot of the project site at ground level" to be "reserved as open space for every square foot of tideland area within the combined footprint of buildings containing nonwater-dependent use on the project site"). Furthermore, the approved MHP allows a minimum setback for buildings from the water's edge at the Hook Wharf site of twelve feet, whereas the comparable waterways regulation defines a minimum setback of twenty-five feet. See 310 Code Mass. Regs. § 9.51(3)(c) (2017).

The Secretary approved the MHP, indicating her finding under the municipal harbor plan regulations, 301 Code Mass. Regs.

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§§ 23.00 (2017), that the alternative dimensional specifications "ensure that, in general, new or expanded buildings for nonwater-dependent use will be relatively modest in size, in order that wind, shadow, and other conditions of the ground level environment will be conducive to water-dependent activity and public access associated therewith, as appropriate for the harbor in question." 301 Code Mass. Regs. § 23.05(2)(c)(5). In approving the MHP at issue here, the Secretary wrote, "I recognize that while the proposed building height is significantly greater than what would be allowed under the baseline [w]aterways requirements [set by the department]," the substitute specifications "generally fit[]" within "the setting of the entire [Boston] skyline."

The plaintiffs in these two actions sought, inter alia, a declaratory judgment that the waterways regulations are invalid insofar as they purport to delegate approval authority to the Secretary where the Secretary has approved substitute specifications in connection with an MHP. [Note 6] The Superior Court judge granted partial summary judgment in favor of the plaintiffs, entering a declaration in each case that the challenged delegation by the department was ultra vires. The judge then reported his decision to the Appeals Court, pursuant to Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996); [Note 7] the Secretary and the Commissioner of Environmental Protection filed an application for direct appellate review of the report of the two cases, which we allowed.

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2. Discussion. [Note 8] a. Standard of review. We turn to consider the department's authority to promulgate regulations effectively binding itself to license a proposed construction project in the tidelands for which the Secretary has approved, as part of an MHP, specifications that deviate from the department's own specifications. We do so under familiar standards.

The scope of the department's authority presents a question of statutory interpretation, which we review de novo. See Rosing v. Teachers' Retirement Sys., 458 Mass. 283, 290 (2010). To determine whether an agency acts within its statutory authority in promulgating regulations, we determine "whether the Legislature has spoken with certainty on the topic in question," using the "conventional tools of statutory interpretation," and if "the statute is unambiguous, we give effect to the Legislature's intent." Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633 (2005). If the Legislature has not spoken to the issue directly, we determine whether the agency's regulations may "be reconciled with the governing legislation" (citation omitted). Id. at 633. Within the scope of its enabling legislation, the department has "a wide range of discretion in establishing the parameters of its authority." Levy v. Board of Registration & Discipline in Med., 378 Mass. 519, 525 (1979). Because the department enjoys broad authority to effectuate the purposes of the legislation, we accord substantial deference to its expertise and experience. See Goldberg, supra; Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867 (1997).

The principle of according weight to an agency's discretion, however, is "'one of deference, not abdication,' and this court will not hesitate to overrule agency interpretations of statutes or rules when those interpretations are arbitrary or unreasonable." Moot v. Department of Envtl. Protection, 448 Mass. 340, 346 (2007), S.C., 456 Mass. 309 (2010), quoting Boston Preservation Alliance, Inc. v. Secretary of Envtl. Affairs, 396 Mass. 489, 498 (1986). When an agency acts beyond the scope of authority conferred to it by statute, its actions are invalid and ultra vires. See Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 14 (2003) (agency has "no inherent authority to issue regulations . . . [that] exceed the authority conferred by the statutes by which the agency was created"

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[citation omitted]); Matter of Elec. Mut. Liab. Ins. Co., Ltd. (No. 1), 426 Mass. 362, 366 (1998) ("An administrative agency has only the powers and duties expressly or impliedly conferred on it by statute"). See also Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 331 (2011), quoting Morey v. Martha's Vineyard Comm'n, 409 Mass. 813, 818 (1991) (where "scope of agency authority is at issue, we must determine whether the agency is acting within 'the powers and duties expressly conferred upon it by statute and such as are reasonably necessary to carry out its mission'").

b. Public trust doctrine. For centuries, the Commonwealth has recognized the importance of regulating its tidelands [Note 9] under the public trust doctrine, "an age-old concept with ancient roots . . . expressed as the government's obligation to protect the public's interest in . . . the Commonwealth's waterways." Trio Algarvio, Inc. v. Commissioner of the Dep't of Environmental Protection, 440 Mass. 94, 97 (2003), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-637 (1979) (recounting common-law history of public trust doctrine from its genesis in Roman times to its inclusion in Massachusetts's waterways laws). [Note 10] "[O]nly the Commonwealth, or an entity to which the Legislature properly has delegated authority, may administer public trust rights" in tidelands. Fafard v. Conservation Comm'n of Barnstable, 432 Mass. 194, 199 (2000). "The Legislature has designated [the department] as the agency charged with responsibility for protecting public trust rights in tidelands through the

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c. 91 [Note 11] licensing program . . . ." Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass. 663, 678 (2010). See also Navy Yard Four Assocs., LLC v. Department of Envtl. Protection, 88 Mass. App. Ct. 213, 219 (2015) (stressing special designation of department).

Under G. L. c. 91, § 18, the department [Note 12] may only issue a license for "nonwater dependent uses of tidelands" if

"a written determination by the department is made following a public hearing that said structures or fill shall serve a proper public purpose and that said purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands and that the determination is consistent with the policies of the Massachusetts coastal zone management program."

G. L. c. 91, § 18. Consistent with this delegated authority, the department has promulgated regulations governing its licensing decision-making and setting forth certain dimensional specifications for proposed nonwater-dependent projects in tidelands. [Note 13] See 310 Code Mass. Regs. § 9.31 (2017) (general licensing requirements and standards); 310 Code Mass. Regs. §§ 9.51-9.55 (2017) (specific dimensional and use standards) (collectively, the waterways regulations). [Note 14] The waterways regulations recognize that these "minimum conditions" are "necessary to prevent undue detriments to the capacity of tidelands to accommodate water-dependent use." 310 Code Mass. Regs. § 9.51(3) (2017).

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c. The challenged regulations. Critically, for nonwater-dependent uses located in an area subject to an MHP approved by the Secretary, [Note 15] the waterways regulations purport to require the department to substitute the specifications in an approved MHP even if they differ from the specifications provided by the department in the waterways regulations, waiving its own specifications in deference to those approved by the Secretary in an MHP. See 310 Code Mass. Regs. § 9.34(2)(b) (2017) ("the Department shall . . . apply the . . . numerical standards specified in the municipal harbor plan as a substitute for the respective limitations or standards contained in [the waterways regulations]" [emphasis added]). [Note 16] See, e.g., 310 Code Mass. Regs. § 9.51(3)(e) ("the Department shall waive [the department's height specification of fifty-five feet] if the project conforms to a municipal harbor plan which, as determined by the Secretary in the approval of said plan, specifies alternative height limits and other requirements" [emphasis added]). As demonstrated by the project in these cases, the substitute standards approved in an MHP can differ significantly from the department's own. [Note 17]

The waterways regulations further provide that the department "shall presume" that compliance with those substitute standards of an approved MHP satisfies the statutory requirement of G. L. c. 91, § 18, that the project serves a "proper public purpose which provides greater benefit than detriment to the rights of the public in said lands." 310 Code Mass. Regs. § 9.31(2)(b). Similarly, "[i]f

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the project site is within an area covered by a municipal harbor plan, the [d]epartment shall presume" that the statutory requirement that a project be consistent with the coastal zone management program is met (emphasis added). 310 Code Mass. Regs. § 9.54(2) (2017). And where a project conforms to an MHP, the department "shall . . . determine" that it is consistent with the coastal zone management policies. 310 Code Mass. Regs. § 9.34(2)(b)(3).

These presumptions may be rebutted, but only on the narrow grounds that either "the basic requirements" for issuing a license or permit have not been met, or there is "a clear showing . . . made by a municipal, state, regional, or federal agency that requirements beyond those contained in [the waterways regulations] are necessary to prevent overriding detriment to a public interest which said agency is responsible for protecting." 310 Code Mass. Regs. § 9.31(3). Tellingly, the Secretary does not rely on these narrow bases for overcoming the presumptions set forth in the waterways regulations as providing a meaningful review by the department. Accordingly, the challenged waterways regulations essentially provide that if a project meets specifications set forth in an MHP approved by the Secretary, the department is bound to determine that the project meets the requirements of G. L. c. 91, § 18, that the project serves a proper public purpose, which provides a greater public benefit than public detriment, and that such a determination is consistent with the coastal zone management program's policies. In effect, application of the deference mandated by the challenged regulations [Note 18] results in the delegation to the Secretary of the department's licensing authority over an entire category of projects in tidelands -- namely, those included in an approved MHP.

d. Ultra vires delegation. The department has no authority to delegate to the Secretary its public trust duties to preserve and protect the public's interest in tidelands in this manner. See Moot, 448 Mass. at 353 (striking down regulation exempting landlocked tidelands as "relinquish[ment] by departmental regulation").

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Our decision in Moot is instructive. There, we reviewed a provision of the department's waterways regulations that exempted all landlocked tidelands from its licensing procedures. Moot, 448 Mass. at 344-345. Based on the public trust principles, we determined that "the department has acted in excess of its authority in exempting all landlocked tidelands from all licensing requirements." Id. at 347. The same reasoning applies here. While the Secretary is correct that the challenged regulations do not literally "exempt" any tidelands from the G. L. c. 91 licensing requirements, the effect of the challenged regulations is analogous. Incorporating decisions made by the Secretary as binding impermissibly delegates the department's public trust duty, excludes wholesale a certain category of projects from its purview, and "effectively relinquish[es] all public rights that the Legislature has mandated be preserved through the licensing requirements [of G. L. c. 91, § 18]." Id. at 350. "The department has no authority to forgo its responsibility to preserve and protect the public's rights in tidelands (water dependent or nonwater dependent), whether for administrative convenience, conservation of the department's resources or any other laudable agency reason." Id.

The Secretary principally contends that the department's regulations are a reasonable exercise of its power under G. L. c. 91 by defining two sets of specifications: (i) generic specifications for non-MHP covered areas and (ii) harbor-specific specifications determined by allowing the Secretary (as the "administrator" of the tidelands, see G. L. c. 91, § 18B [a]) to define specifications in areas covered by MHPs. [Note 19] The Secretary further argues that, because the department can provide a recommendation in connection with the MHP approval process, the regulatory scheme

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handing those determinations over to the Secretary is reasonable. See 301 Code Mass. Regs. § 23.08(2) (allowing department to "provide a written recommendation to the Secretary concerning the consistency of a proposed MHP with state tidelands policy objectives and associated regulatory principles").

This argument ignores the unique public trust principles at play. The public trust doctrine does not analyze reasonableness; rather, it requires express legislative delegation, as it addresses a special, unusually valuable form of public property. Moot, 448 Mass. at 347. Here, the Legislature has also expressly chosen the department to make the licensing determinations. Id. See Navy Yard Four Assocs., LLC, 88 Mass. App. Ct. at 218, quoting Alliance to Protect Nantucket Sound, Inc., 457 Mass. at 678 ("[t]he Legislature has designated [the department] as the agency charged with responsibility for protecting public trust rights in tidelands through the c. 91 licensing program"). The department's ability to make a nonbinding "recommendation" as part of the MHP process, see 301 Code Mass. Regs. § 23.08(2), does not save the improper delegation underlying the regulatory scheme because it gets the legislative delegation of authority over licensing decisions under public trust principles backwards. To be sure, the department is free to consider -- but should not be bound to adopt -- the Secretary's input when it makes licensing determinations under G. L. c. 91, § 18. Other provisions within the waterways regulations, for example, permissibly require that an approved MHP receive "particular consideration" -- as opposed to establishing a binding determination upon the department -- when the department makes its ultimate licensing decision. See 310 Code Mass. Regs. §§ 9.35, 9.36, 9.52, 9.53. Giving the department a nonbinding role for input to the Secretary on her decision whether to approve substitute specifications in connection with an approved MHP cannot be squared with the Legislature's express delegation to the department of licensing decisions in the tidelands. The challenged regulations put the Secretary in the exact position that the Legislature delegated to the department; this the department cannot do.

The department, of course, has authority to promulgate regulations for implementing G. L. c. 91, and it need not proceed on a case-by-case basis in making licensing determinations

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(although, of course, it may). Massachusetts Eye & Ear Infirmary v. Commissioner of the Div. of Med. Assistance, 428 Mass. 805, 817 (1999) (holding agency "may operate on a case-by-case basis to determine [if a threshold inquiry is met] . . . provided there is adequate review of its decision," or it "may promulgate clear rules and deny all [applicants] not in compliance with those rules"). However, the department may not cede to the Secretary the decision whether nonwater-dependent uses of tidelands serve, inter alia, a proper public purpose by binding itself to so find based on the Secretary's decision to approve specifications in connection with an MHP. These obligations are based in public trust principles and, as such, can only be delegated by the Legislature itself. See Moot, 448 Mass. at 353.

The Secretary also maintains that because the department performs the ministerial act of actually issuing the required license, even when an MHP is approved by the Secretary, the department does not, in fact, delegate its public trust rights but instead maintains its licensing authority under G. L. c. 91, § 18. Such a technicality does not save the regulations. The department has bound itself to defer to the Secretary with respect to the specific determinations that must be made before a license is issued. [Note 20] See 310 Code Mass. Regs. § 9.51(3)(a)-(e); 310 Code Mass. Regs. § 9.53(2)(b)-(c). This "relinquish[ment] by departmental regulation" is impermissible under public trust principles. Moot, 448 Mass. at 353.

The Secretary further argues that the Legislature impliedly approved the department's delegation to the Secretary because the department submitted the waterways regulations to the Legislature for approval according to the mandate in G. L. c. 91, § 18. See note 14, supra. The Secretary also contends that the general statutory authority granted in G. L. c. 21A impliedly delegates to the Secretary the authority needed under public trust principles. See G. L. c. 21A, § 2 (EEA and its "appropriate departments . . . shall carry out the state environmental policy"); G. L. c. 21A, § 3 ("The secretary shall conduct comprehensive planning with respect to the functions of the office and shall coordinate the activities and programs of the departments . . ."); G. L. c. 21A, § 4 (granting Secretary "powers and duties concerning any power or

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duty assigned to any such department, division or other administrative unit" for "programs jointly agreed to by the secretary"). See also G. L. c. 91, § 18B (a) (designating Secretary as "the administrator of tidelands").

We disagree. The public trust principles require an express delegation of that responsibility by the Legislature; an implied approval will not suffice. Compare Alliance to Protect Nantucket Sound, Inc., 457 Mass. at 678 (holding that "express legislative directive" authorized siting board to assume department's licensing responsibility), with Arno v. Commonwealth, 457 Mass. 434, 451 (2010) (holding neither Land Court nor Attorney General had express legislative authority to relinquish public trust responsibility despite provisions in registration act permitting Land Court to quiet title to parcel on filled tidelands, conclusively "upon and against all persons, including the commonwealth"), Moot, 448 Mass. at 349-350 (holding department had no authority to exempt landlocked tidelands from G. L. c. 91 licensing requirements, because only Legislature can relinquish public trust responsibility), and Fafard, 432 Mass. at 198-199 (holding town had no authority to promulgate bylaw that purported to grant public trust responsibilities to local commission, because only Legislature could do so). There is no such express legislative directive to the Secretary here; rather, the department has attempted to delegate its own authority, which it cannot do. See Moot, supra.

Indeed, contrary to the Secretary's argument, the Legislature assigned a different role to the Secretary in connection with proposed licensed uses in tidelands. In particular, the Secretary "shall conduct and complete a public benefit review for any proposed project" that is subject to a license under G. L. c. 91, § 18. G. L. c. 91, § 18B (b). The Secretary then "shall provide the determination of public benefit to the department," and the department "shall incorporate the public benefit determination of the secretary in the official record." Id. Importantly, G. L. c. 91, § 18B, specifies that the Secretary's determination "shall not supersede [G. L. c. 91] or any rules or regulations promulgated pursuant thereto and shall not delay the issuance of a license pursuant to this chapter or the completion of a review or any step thereof." Id. See Moot v. Department of Envtl. Protection, 456 Mass. 309, 312 (2010); 301 Code Mass. Regs. § 13.05 (2008) (Secretary's public benefit review determination "shall not supersede, eliminate, or in any way impair the [d]epartment's exercise

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of its powers under [G. L. c.] 91"). [Note 21]

3. Conclusion. The challenged waterways regulations purporting to require mandatory substitute standards and presumptions are an unlawful delegation of the department's decision-making authority to the Secretary. Thus, we affirm the Superior Court judge's partial grant of summary judgment and entry of declarations in the two underlying cases that these regulations are invalid as an improper delegation of the department's public trust responsibilities. We remand the matters for further proceedings consistent with this opinion.

So ordered.