On October 6, 2006 Judge Patrick Brady of the Superior Court issued a decision on the Friends of the Blue Hills v. DEP and MWRA case, which rejected the Friends’ appeal of the DEP Commissioner’s decision granting the MWRA a variance, or waiver, from certain regulatory requirements of the State Wetlands Protection Act (WPA) in connection with the MWRA’s proposed $32 million Blue Hills Covered Storage project. 

In the Decision and Order, the Court rejected the Friends’ arguments that the Commissioner’s variance decision should be overturned because it was “arbitrary and capricious” because it supposedly departed from a “no net loss” of wetlands policy, ruling that there was no evidence on the “record that the DEP has ever produced any official, legally binding policy or regulations reflecting a “no net loss” concept in the context of variances.”  The Court also held that the Friends had waived any legal rights to appeal the Commissioner’s finding under the Massachusetts Environmental Policy Act (MEPA), and that the Commissioner correctly interpreted the WPA when issuing the variance, which was based upon substantial evidence.

The Court also held that the Friends’ Amended Complaint had to be dismissed in full because Friends failed to prove that the group had legal standing as “persons aggrieved” to appeal the DEP variance decision.  In making this determination, the Court held that the Friends had failed to allege facts that showed that they had any “substantial right” that had been “prejudiced” as a result of the proposed MWRA project, noting that their interest in the Blue Hills Reservation is “shared by all citizens generally.”

The Blue Hills Covered Storage Project as proposed is the culmination of years of environmental and legal review.  Permits have been issued by state and federal regulatory agencies in compliance with all regulations. When completed, the facility will offer the critically needed emergency water supply to the Southern High Water Service Area, minimize impacts to parkland and upland endangered species habitat, offer a more diversified wetland habitat, and expand parks and recreation use in an area that is currently closed to the public.

The MWRA plans on awarding the design/build contract for this in November 2006.

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