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CITY OF BOSTON CODE OF ORDINANCES
THE CHARTER OF THE CITY OF BOSTON
CHAPTER I: GENERAL PROVISIONS
CHAPTER II: FORM OF GOVERNMENT
CHAPTER III: ACQUISITION AND DISPOSITION OF PROPERTY
CHAPTER IV: CONTRACTS
CHAPTER V: ADMINISTRATION
CHAPTER VI: GENERAL SERVICES
CHAPTER VII: ENVIRONMENTAL PROTECTION
CHAPTER VIII: DEVELOPMENT
CHAPTER IX: BUILDING REGULATIONS
CHAPTER X: HOUSING SERVICES
CHAPTER XI: PUBLIC SERVICES
CHAPTER XII: PUBLIC HEALTH AND WELFARE
CHAPTER XIII: NATURAL GAS
CHAPTER XIV: LICENSING AND CONSUMER BOARDS, COMMITTEES AND OFFICERS
CHAPTER XV: DIVISIONS OF THE MAYOR’S OFFICE
CHAPTER XVI: PROHIBITIONS, PENALTIES AND PERMITS
CHAPTER XVII: LICENSES AND REGULATIONS AFFECTING CERTAIN TRADES
CHAPTER XVIII: FEES AND CHARGES
CHAPTER XIX: SCHOOLS
CHAPTER XX: CHARITABLE INSTITUTIONS
CHAPTER XXI: MISCELLANEOUS PUBLIC BUILDINGS
CHAPTER XXII: SUFFOLK COUNTY
CHAPTER XXIII: TRASH AND REFUSE DISPOSAL
CHAPTER XXIV: BOSTON JOBS, LIVING WAGE AND PREVAILING WAGE ORDINANCE
PARALLEL REFERENCES
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7-1.1   Composition of Board; Terms of Office.
   (A)   There shall be in the city a Board, known as the Conservation Commission, consisting of the Commissioner of Parks and Recreation, ex officio, and six Conservation Commissioners, who shall be residents of the city, appointed by the Mayor, of whom two shall be appointed from candidates nominated, one each by the Board of Directors or like body of the following corporations or organizations: the Massachusetts Audubon Society, Inc.; the Massachusetts Forest and Park Association; the Massachusetts Roadside Council; the Trustees of Reservations; the Eastern Massachusetts Group of the New England Chapter of the Sierra Club; Boston Green Space Alliance; the Boston Harbor Associates; Boston Urban Gardeners; Friends of the Boston Harbor Islands; Save the Harbor/Save the Bay; the Boston Natural Areas Fund; the Charles River Watershed Association and the Neponset River Watershed Association. As the term of any Conservation Commissioner expires, his or her successor shall be appointed in like manner for a term of three years. Any vacancy in the Office of a Conservation Commissioner shall be filled in like manner for the unexpired term.
   (B)   The Mayor shall, from time to time, designate one of the Conservation Commissioners as Chair and another as Vice-Chair. The Commission shall elect a secretary who need not be a member of the Commission.
   (C)   The Commissioners shall serve without compensation, and shall be deemed to be special municipal employees for the purposes of M.G.L. Chapter 268A.
(Ord. 1970 c. 10; Rev. Ord. 1961 (Sup. 1971) c. 10.1 § 1; CBC 1975 Ord. T7 § 1; CBC 1985 7-1.1; Ord. 1988 c. 16 §§ 1-4)
Cross-reference:
   M.G.L. Chapter 268A; Ord. ss 7-4.1
7-1.2   Powers and Duties.
   (A)   The Conservation Commission shall, subject to the provisions of the charter as that term is defined in M.G.L. Chapter 4, Section 7, Clause 5, have the powers and perform the duties, from time to time, conferred or imposed on conservation commissions by M.G.L. Chapter 40, Section 8C.
   (B)   The Commission, with the approval of the City Council, may, from time to time, promulgate, amend and repeal regulations relative to the collection of recyclable materials. Such regulations shall be adopted only after public hearing and in consultation with the Commissioner of Public Works. The Commission may, in its own discretion, grant or withhold a permit or permits allowing the collection of recyclable materials from places on or abutting public ways, which permit or permits may allow practices prohibited by Subsection 16-1.21; provided, however, that before any such permit is issued the Commission shall satisfy itself that the potential permittee will conduct such collection in a manner consistent with the protection of the public health and safety. No such permit shall be issued for a period greater than one year, and all shall be subject to revocation by the Commission at any time. The Commission may impose conditions and restrictions on permittees and may require the posting of security for faithful performance by a permittee.
(Rev. Ord. 1961 (Sup. 1971) c. 10.1 § 2; Ord. 1973 c. 12 § 1; CBC 1975 Ord. T7 § 2; CBC 1985 7-1.2)
Cross-reference:
   M.G.L. Chapter 4, Section 7; M.G.L. Chapter 40, Section 8C
7-1.3   Duties of Public Facilities Commission and Public Improvement Commission.
   The Public Facilities Commission shall not transfer any land from the municipal purpose to which it is devoted at the time of transfer to any other municipal purpose unless not less than 14 nor more than 90 days prior to transfer, the Director of Public Facilities has given the Conservation Commission written notice of his or her intention to recommend such transfer; nor shall the Public Improvement Commission lay-out, relocate or widen any public way unless not less than 14 nor more than 90 days prior to such laying-out, relocation or widening, the Commissioner of Public Works has given the Conservation Commission written notice of his or her intention to recommend such laying-out, relocation or widening.
(Rev. Ord. 1961 (Sup. 1971) c. 10.1 § 3; CBC 1975 Ord. T7 § 3; CBC 1985 7-1.3)
Cross-reference:
   Statutes, Title 8 §§ 11,12; Ord. ss 11-6.9
7-1.4   Wetlands Protection and Climate Adaptation.
   (A)   Purpose. 
      (1)   The purpose of this Section is to protect the wetlands, water resources, flood-prone areas and adjoining upland areas of the city from loss of their function, value or acreage by controlling activities and mitigating effects deemed by the Boston Conservation Commission (“Conservation Commission” or “Commission”) likely to have a significant individual or cumulative adverse effect upon protection of the following resource area values, including, but not limited to: protection of the public or private water supply and quality; protection of the public and private groundwater supply and quality; short term and long term coastal and stormwater flood control, erosion and sedimentation control; storm damage prevention, including coastal storm flowage; protection of surface water supply and quality, including water pollution control; flood conveyance and storage; protection of fisheries, land containing shellfish, wildlife habitat, rare and endangered plant and animal species and habitat, wetland plant habitat and recreation and to protect the health, safety and welfare of the public and to mitigate impacts from climate change. Collectively, these are the resource area values and interests (“Resource Area Values”) protected by this Section.
      (2)   This Section is intended to utilize the home rule authority of the city to supplement the jurisdiction, authority and procedures of the Conservation Commission, and to protect additional resource areas, for additional values, with additional standards and procedures stricter than those of the Wetlands Protection Act, M.G.L. Chapter 131, Section 40, (hereinafter, the “Act”) and regulations thereunder, 310 CMR 10.00 (hereinafter, the “Regulations”).
   (B)   Definitions. Except as otherwise provided in the ordinance or its regulations, the definitions of terms in this Section shall be as set forth in the Act and the Regulations. For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      ABUTTER. The owner of any lot that is adjacent to (sharing property lines with) the project locus; the owner of any lot directly opposite on any public or private street or way; the owner of any lot within 300 feet of the property line where the activity is proposed; the owner of any of the above who may be in another municipality or across a body of water; the owner of any of the above whose mailing addresses are shown on the most recent tax assessors’ records. When work is in land under water bodies and waterways, or on a tract of land greater than 50 acres, then written notification must be given only to ABUTTERS within 300 feet of the project site.
      ACT. The Wetlands Protection Act, M.G.L. Chapter 131, Section 40 and, whenever appropriate, the Regulations thereunder, 310 CMR 10.00.
      ACTIVITY. On or in any area subject to protection by the ordinance and its regulations: any form of draining, dumping, dredging, damming, discharging, excavating, filling or grading; the erection, reconstruction or expansion of any building or structure; the driving of pilings; the construction or improvement of roads and other ways; the alteration of site hydrology or runoff characteristics; the intercepting or diverting groundwater or surface water; the installation of drainage, sewage and water systems; the discharging of pollutants; the destruction of plant life; and any other alteration of the physical characteristics of land or the physical or chemical characteristics of water. ACTIVITY shall also include any project by any public Agency or person requiring a permit issued by the city Inspectional Services Department or its successor.
      ADAPTATION. Measures designed or intended to protect resource areas from the impacts of climate change and to protect the ability of resource areas to mitigate the impacts of climate change through providing the Resource Area Values protected by the ordinance.
      AGENT. Any Conservation Commissioner or City staff who is appointed Agent by a majority vote of the Conservation Commission at a regularly scheduled meeting of the Conservation Commission, and upon written approval of the Mayor. (M.G.L. Chapter 40, Section 8C).
      ALTER. To change the condition(s) of any area subject to protection by the ordinance and shall include but not be limited to one or more of the following actions undertaken to, upon, within, under or affecting the resource areas protected by this Section:
         (a)   Fill, removal, excavation or dredging of soil, sand, gravel or aggregate material of any kind;
         (b)   Changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns or flood storage retention areas;
         (c)   Draining, disturbing or lowering of the water level or water table;
         (d)   The dumping, discharging or filling with any material;
         (e)   Driving of pilings, erection of buildings or structures of any kind;
         (f)   Placing of any object or obstruction whether or not it interferes with the flow of water (other than boats, fish or shellfish traps);
         (g)   Destruction, extensive trimming or removal of plant life, vegetation or trees;
         (h)   Changing of water temperature, biochemical oxygen demand, nutrient concentration or chemical concentration or other natural characteristics of the receiving water;
         (i)   Any activity, alteration or work which may cause or tend to contribute to pollution or degradation to the quality of any body of water;
         (j)   Application of pesticides and herbicides;
         (k)   Any activity, alteration or work;
         (l)   Any incremental activity that will or may have a reasonably foreseeable cumulative adverse effect on the Resource Area Values protected by the ordinance; or
         (m)   Decreasing the capacity of wetlands to respond to the impacts of climate change, including without limitation, changes in:
            1.   The timing, intensity and amount of precipitation;
            2.   Temperatures; and
            3.   Intensity and/or frequency of storms, extreme weather events and/or droughts.
      APPLICANT. A person filing a request for determination of applicability, an abbreviated notice of resource area delineation, notice of intent or other application with the Commission.
      AREA OF CRITICAL ENVIRONMENTAL CONCERN. An area so designated by the Secretary of Environmental Affairs of the commonwealth pursuant to regulations (301 CMR 12.00), said designation being due to the particular environmental factors which impact upon the areas in question and which highlight the importance of each area so designated. The city may separately designate in the city AREAS OF ENVIRONMENTAL CONCERN according to criteria and guidelines established by the Commission and distinct from those used by the Secretary.
      AREA OF SPECIAL FLOOD HAZARD. Derived from FEMA flood maps, the land in a floodplain within a community subject to a 1% or greater chance of flooding in any given year. The area may be designated as Zone A, AO, AH, AE or VE.
      AREA SUBJECT TO PROTECTION UNDER THE ORDINANCE. See definition for Resource Area.
      BASE FLOOD. The flood having a 1% chance of being equaled or exceeded in any given year. This is the regulatory standard also referred to as the “100-year flood”. The BASE FLOOD is the national standard used by the National Flood Insurance Program (“NFIP”) and all Federal Agencies for the purposes of requiring the purchase of flood insurance and regulating new development.
      BASE FLOOD ELEVATION. The computed elevation to which floodwater is anticipated to rise during the base flood. BASE FLOOD ELEVATIONS (“BFEs”) are shown on Flood Insurance Rate Maps (“FIRMs”) and on the flood profiles.
      BEST AVAILABLE MEASURES. The most up-to-date technology or the best designs, measures, data or engineering practices that have been developed and that are commercially or readily available.
      BEST MANAGEMENT PRACTICES. Technologies, designs, measures, data or engineering practices that are in general use to protect the resource area values of the ordinance.
      BOG. See definition for Freshwater Wetlands.
      BORDERING. Any portion of a marsh, freshwater wetland, coastal wetland, wet meadow, bog, swamp, bank, beach, dune, flat, fen that touches any portion of a river, stream, brook, creek, pond, vernal pool, reservoir, estuary, lake or the ocean shall be considered BORDERING.
      BOUNDARY. The boundary of an area subject to protection under the ordinance. A description of the BOUNDARY of each area is found in the appropriate Section of the ordinance or 310 CMR 10.00.
      BROOK. See definition for Stream.
      BUFFER ZONE. The areas 100 feet horizontally lateral from the boundary of any resource area, including: freshwater or coastal wetland (excluding LSCSF), marsh, wet meadow, bog, swamp, vernal pool, spring, bank, reservoir, stream, brook, creek, river, lake, pond of any size, beach, dune, estuary, flat or the ocean.
      BUILDING. A combination of any materials, whether portable or fixed, temporary or permanent, having a roof enclosed within exterior walls or firewalls built to form a structure for the shelter of persons, animals or property.
      CERTIFICATE OF COMPLIANCE. A written determination by the Conservation Commission as to whether work or a portion thereof has been completed in accordance with the permit issued under the ordinance governing said work.
      COASTAL BANK. In addition to the definition found in the regulations under the Wetlands Protection Act, 310 CMR 10.30, COASTAL BANK shall include seawalls and bulkheads existing on the effective date of this Section unless the seawall supplies sediment to coastal beaches, coastal dunes and barrier beaches. Existing seawalls and bulkheads are presumed significant to the purpose of the Act and Regulations as a COASTAL BANK because they are designed to serve as vertical buffers to storm damage.
      COASTAL BEACH. Unconsolidated sediment subject to wave, tidal and coastal storm action that forms the gently sloping shore of a body of salt water and includes tidal flats. COASTAL BEACHES extend from the mean low water line landward to the dune line, coastal bankline or the seaward edge of existing human-made structures, when these structures replace one of the above lines, whichever is closest to the ocean.
      COASTAL ENGINEERING STRUCTURE. A structure used to protect homes, buildings, roadways, utilities or other inland or upland structures on or near the coast, such as seawalls, revetments, breakwaters, jetties, groins, weirs, gabions, sandbags, marine mattress, rip-rap, piers, wharfs, bulkheads, stairways, access ramps, boat ramps, boardwalks, tide gates or any other structure which by its design alters wave, tidal, current, ice or sediment transport or is intended to prevent or alleviate storm damage, tidal action, wave action, littoral flow or erosion.
      COASTAL FLOOD RESILIENCE ZONE (“CFRZ”). The area of land beyond the current boundary of land subject to coastal storm flowage or land subject to tidal action that the Commission determines has a reasonable probability of becoming subject to future coastal storm flowage or tidal action due to sea level rise (“SLR”) within approximately the next 50 years. The COASTAL FLOOD RESILIENCE ZONE as delineated on maps adopted by the Commission may be periodically reviewed and revised by the Commission, and may divided into sub-zones with different regulatory requirements.
      COASTAL STORM FLOWAGE. Land subject to any inundation caused by coastal storms up to and including that caused by the 100-year storm, surge of record or storm of record, whichever is greater.
      COASTAL WETLANDS. Any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flowage.
      CONDITIONS. Those requirements set forth in a written permit issued by the Conservation Commission for the purpose of permitting, regulating or prohibiting any activity that removes, fills, dredges, builds upon, degrades, discharges into or otherwise alters an area subject to protection under the ordinance.
      CONSERVATION COMMISSION (“COMMISSION”). The body in the city comprised of members lawfully appointed pursuant to M.G.L. Chapter 40, Section 8C and Subsection 7-1.1.
      CREEK. See definition for Stream.
      CUMULATIVE EFFECT. An effect that is significant when considered in combination with other activities that have occurred, that are occurring simultaneously or that are reasonably foreseeable, whether such other activities are contemplated as a separate phase of the same project, or arise from unrelated but reasonably foreseeable future projects. Future activities within a site, district or institutional area identified within an annual budget, capital spending plan, Master Plan, Planned Development Agreement or equivalent document approved by the city or any other government Agency are specifically considered to be reasonably foreseeable future projects for the purposes of this Section. Future effects of sea level rise, coastal or inland flooding or other future climate change effects are included among CUMULATIVE EFFECTS.
      DETERMINATION.
         (a)   DETERMINATION OF APPLICABILITY. A written finding by the Conservation Commission as to whether a site or the work proposed thereon is subject to the jurisdiction of the ordinance.
         (b)   DETERMINATION OF SIGNIFICANCE. A written finding by the Conservation Commission that the area on which the proposed work is to be done or which the proposed work will alter is significant to one or more of the resource area values identified in and protected by the ordinance and its regulations.
         (c)   NOTIFICATION OF NON- SIGNIFICANCE. A written finding by the Conservation Commission that the area on which proposed work is to be done, or which the proposed work will alter, is not significant to any of the Resource Area Values of the ordinance.
      EXTENDED RIVERFRONT AREA. See Riverfront Area.
      EXTREME WEATHER EVENT. Weather at the extremes of the historical distribution lying in the outermost 10% of city weather history, including, but not limited to, heat and humidity, droughts, winds and microbursts, blizzards and ice storms, rain and hail, fire, tornadoes, thunderstorms, hurricanes and tides affected by weather.
      FEDERAL EMERGENCY MANAGEMENT AGENCY (“FEMA”). The federal Agency responsible for administering the National Flood Insurance Program. FEMA provides a nation- wide flood hazard area mapping study program for communities as well as regulatory standards for the development in the flood hazard areas.
      FILL. To deposit any material so as to raise the elevation of land surface or ground, either temporarily or permanently or to deposit any material in any resource area covered by this Section so as to impair the resource values of the area.
      FLOOD CONTROL. The prevention or reduction of flooding and flood damage, both as currently expected to occur and as projected to occur based on the best available data regarding the impacts of climate change.
   FLOOD INSURANCE RATE MAP (“FIRM”). An official map of Boston on which FEMA has delineated both the areas of special flood hazard and the risk premium zones applicable to Boston.
      FOOTPRINT. The total square feet within the outermost dimensions of a building or structure including decks, porches, roofs, overhangs and staircases without deduction for hallways, stairs, closets, thickness of walls, columns or other features.
      FRESHWATER WETLANDS. The types of freshwater wetlands are wet meadows, marshes, swamps, bogs and vernal pools. These include bordering vegetated wetlands (i.e., bordering on freshwater bodies such as on creeks, rivers, streams, ponds and lakes), and isolated vegetated wetlands which do not border on any permanent water body. FRESHWATER VEGETATED WETLANDS are areas where soils are saturated and/or inundated such that they support wetland indicator plants. The groundwater and surface water hydrological regime, soils and the vegetational community which occur in each type of freshwater wetlands, including both bordering and isolated vegetated wetlands, are defined under this Section based on M.G.L. Chapter 131, Section 40.
      GREEN INFRASTRUCTURE. Projects and practices incorporating the natural environment or engineered systems that provide or supplement natural processes or work in concert with natural systems to provide flood, fire or drought risk reduction, or clean water or air benefits. GREEN INFRASTRUCTURE practices protect, restore, augment or mimic ecological processes.
      GROUNDWATER. All subsurface water contained in natural geologic formations or artificial fill including soil water in the zone of aeration.
      IMPACTS OF CLIMATE CHANGE. Include without limitation: extreme heat; the timing, frequency, intensity and amount of precipitation, storm surges and rising water levels; increased intensity or frequency of storm events or extreme weather events; and frequency, intensity and duration of droughts.
      IN or WITHIN. In, through, under, over, cantilevered over. With respect to structures, IN is measured from the drip-line of the roof or foundation or footing, whichever is closer to the resource area.
      INLAND FLOOD RESILIENCE ZONE (“IFRZ”). The area of land beyond the current boundary of land subject to flooding that the Commission determines has a reasonable probability of flooding as the strength, duration or frequency of precipitation events increase within approximately the next 50 years. The INLAND FLOOD RESILIENCE ZONE as delineated on maps adopted by the Commission may be reviewed and revised by the Commission as more accurate information and precipitation projections become available.
      INTERMITTENT STREAM. See definition of Stream.
      ISOLATED LAND SUBJECT TO FLOODING. An isolated depression or closed basin without an inlet or an outlet. It is an area which at least once a year confines standing water to a volume of at least ¼ acre-feet and to an average depth of at least 6 inches.
      ISOLATED VEGETATED WETLAND. A freshwater wetland, of at least 1,000 square feet in area that does not border on creeks, rivers, streams, ponds or lakes. The types of ISOLATED VEGETATED WETLANDS may include wet meadows, marshes, swamps and bogs. In addition to the minimum size requirement, ISOLATED VEGETATED WETLANDS must also meet the definition of Bordering Vegetated Wetlands (310 CMR 10.55(2)) with the exception that these wetlands do not border any creeks, rivers, streams, ponds, lakes or other water bodies. The boundaries of ISOLATED VEGETATED WETLANDS are the same as those for Bordering Vegetated Wetlands as defined in 310 CMR 10.55(2)(c).
      LAND SUBJECT TO FLOODING OR INUNDATION. The land within the estimated maximum lateral extent of flood water which will result from the statistical 1% annual chance storm. Said boundary shall be determined by reference to the most recently available flood profile data prepared for the city within which the work is proposed under the National Flood Insurance Program (“NFIP”). Where NFIP data are unavailable or deemed by the Commission to be outdated, inaccurate or not reflecting current or reasonably anticipated conditions, the boundary of said land shall be based on the maximum lateral extent of floodwater which has been observed or recorded, or other evidence presented and considered by the Commission. The Commission shall give special consideration to the best available data provided by the city and the commonwealth on expected conditions due to climate change. Said land shall also include isolated areas which frequently or seasonably hold standing water to a volume of at least ¼ acre-feet and to an average depth of at least 6 inches; such areas may or may not be characterized by wetland vegetation or soil characteristics.
      LAND UNDER OCEANS AND ESTUARIES. Land extending from the mean low water line seaward to the boundary of the municipality’s jurisdiction and includes land under estuaries.
      LAND UNDER WATERBODIES AND WATERWAYS. The land beneath any creek, river, stream, pond or lake.
      LOT. An area of land in one ownership, with definite boundaries. When an area of land is comprised of more than one lot, the lots share a common boundary and are owned or controlled by the same entity or individual(s), and the lots combined are used for the same purpose or enterprise, the Commission may consider the lots as a single merged lot for the purposes of applying provisions of this Section.
      MARSH. See definition for Freshwater Wetlands.
      NOTICE OF INTENT. The written notice filed by any person intending to remove, fill, dredge, build upon, degrade, discharge into or otherwise alter an area subject to protection under the commonwealth’s Wetlands Protection Act, M.G.L. Chapter 131, Section 40, or the ordinance, or both.
      ORDINANCE. This Section of the Boston Municipal Code.
      PERMIT. The document issued by the Conservation Commission pursuant to this Section which allows work in accordance with conditions set by the Commission in the resource areas protected by this Section.
      PERMIT DENIAL. The document issued by the Conservation Commission pursuant to the ordinance which disallows proposed work.
      PERSON. Any individual, group of individuals, associations, partnerships, corporations, business organizations, trust, estate, the commonwealth or political subdivision thereof, any public or quasi-public corporation or body or any other legal entity, including the city or its legal representatives, Agents, successors or assigns.
      PLANS. Such data, maps, engineering drawings, calculations, specifications, schedules and other materials, if any, deemed necessary by the Conservation Commission regarding the site and/or proposed work, current conditions and projected impacts of climate change on the resource areas and their functions, to determine the applicability of the ordinance or to determine the impact of the proposed work upon the resource area values identified in the ordinance.
      POND. Any open body of fresh water, of a minimum of 5,000 square feet in size, meeting the definition of 310 CMR 10.04.
      PREVENTION OF POLLUTION. The prevention or reduction of chemicals (including without limitation nutrients, hydrocarbons, solvents, metals, vapors) determined to cause harm to humans, plants or animals via exposure to any media (e.g., air, water, soil, sediment).
      PRIVATE WATER SUPPLY. Any source or volume of surface or groundwater demonstrated to be in any private use or shown to have potential for private use for domestic purposes.
      PROJECT LOCUS. The lot on which an applicant proposes to perform an activity subject to regulation under the ordinance.
      PROJECT SITE. The area within the project locus that comprises the limit of work for activities, including, but not limited to, the dredging, excavating, filling, grading, the erection, reconstruction or expansion of a building or structure; the driving of pilings; the construction or improvement of roads or other ways; and the installation of drainage, stormwater treatment, environmentally sensitive site design practices, sewage and water systems.
      PROTECTION OF WILDLIFE. The protection of any plant or animal species, including, but not limited to, those listed as endangered, threatened or special concern or on the Watch List by the commonwealth’s Natural Heritage Program; listed as Federally Endangered or Federally Threatened by the United States Fish and Wildlife Service; deemed locally threatened, in writing, by the Conservation Commission. PROTECTION OF WILDLIFE for the purposes of this Section means protection of natural habitat and the capacity of any resource area to adequately provide food, breeding habitat, shelter or escape cover, for species falling within the definition of wildlife set forth in the ordinance.
      REQUEST FOR DETERMINATION OF APPLICABILITY. A written request made by any person to the Conservation Commission for a determination as to whether a site or work thereon is subject to the ordinance.
      RESILIENCE. The ability to minimize the negative impacts of climate change and other natural hazards; to build capacity of a resource area to minimize negative impacts of climate change.
      RESOURCE AREA. Each area subject to protection under the ordinance and which is listed in the ordinance.
      RESOURCE AREA ENHANCEMENT. Removal or management of invasive species; removal of debris, garbage or trash; restoration and/or stabilization of bank or other resource area; planting or management of non-invasive species of vegetation; prevention of the generation of stormwater and non-point source pollution by reducing impervious surfaces; minimizing disturbance; protecting natural features and processes; enhancing wildlife habitat; or other techniques that advance the Resource Area Values of this Section as the Commission may, from time to time, see fit to define.
      RIVER. Any natural flowing body of water that empties to any ocean, lake, pond, reservoir, stream or other river.
      RIVERFRONT AREA. The area of land between the mean annual high water line and a parallel line measured 25 feet horizontally landward of the mean annual high water line of any river, stream, brook or creek, except for areas the Commission may designate as extended riverfront areas, in which the RIVERFRONT AREA may be extended up to 200 feet.
      SALT MARSH. A coastal wetland that extends landward up to the highest high tide line, that is the highest spring tide of the year and is characterized by plants that are well adapted to, or prefer living in, saline soils. A SALT MARSH may contain tidal creeks, ditches and pools.
      SEA LEVEL RISE (“SLR”). The rise in sea level over time.
      STORM DAMAGE PREVENTION. The prevention of damage caused by water from storms, as currently occurs and is predicted by best available data to occur from the impacts of climate change, including, but not limited to, erosion and sedimentation, damage to vegetation, property or buildings or damage caused by flooding, waterborne debris or waterborne ice.
      STREAM. A body of running water, including brooks and creeks, which moves in a definite channel in the ground due to hydraulic gradient, and includes streamlets and rivulets. A portion of a STREAM may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a STREAM.
      SWAMP. See definition for Freshwater Wetlands.
      TIDAL FLAT. Coastal wetlands that form in intertidal areas where sediments have been deposited by tides or rivers.
      VERNAL POOL. 
         (a)   In addition to the areas so defined in the regulations under the Wetlands Protection Act, any confined basin or depression not occurring in existing lawns, gardens, landscaped areas or driveways which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, contains at least 200 cubic feet of water at some time during most years, is free of adult predatory fish populations and provides breeding and rearing habitat functions for amphibian, reptile or other VERNAL POOL community species, regardless of whether the site has been certified by the commonwealth’s Division of Fisheries and Wildlife.
         (b)   The boundary of the resource area for VERNAL POOLS shall be the mean annual high-water line defining the depression, or the maximum observed or recorded water level in a topographic depression. The presumption that any seasonal basin functions as a VERNAL POOL shall prevail through a minimum of one spring/summer breeding season for the purpose of documenting the occurrence or lack of occurrence of breeding activity of vernal pool species. The buffer zone for VERNAL POOLS shall extend 100 feet from the highest extent of flooding.
      WATERFRONT AREA. The portion of the buffer zone which extends 25 feet horizontally from the edge of the following wetland resource areas:
         (a)   Any coastal beach, dune, bank, tidal flats, rocky intertidal shores, salt marshes or land containing shellfish; or
         (b)   Any inland bank, lake, pond, intermittent stream, brook, creek or riverfront area.
      WET MEADOW. See definition for Freshwater Wetlands.
      WETLAND PLANTS. Any plant listed in the United States Fish and Wildlife Service “National List of Plant Species That Occur in Wetlands: Massachusetts 1988” and condensed by the commonwealth’s Department of Environmental Protection, Division of Wetlands and Waterways, April 1995, having an indicator category of obligate wetland (“OBL”), facultative wetland (“FACW”) or facultative (“FAC”).
      WITHIN. See definition for In.
      WILDLIFE. Any mammal, bird, reptile, amphibian, fish, mollusk, arthropod or other vertebrate or invertebrate, including species which are officially listed in 321 CMR 8.00: Endangered Wildlife and Wild Plants as endangered, threatened or of special concern.
      WILDLIFE HABITAT. The area being used by or necessary to provide breeding or nesting habitat, shelter, food and water for any animal species.
      WORK. See definition for Activity.
   (C)   Jurisdiction. 
      (1)   Except as permitted by the Conservation Commission no person shall commence or continue to remove; fill; dredge; build upon, over or under; degrade; discharge into; or otherwise alter or pose a significant threat to alter the following resource areas:
         (a)   Any freshwater or coastal wetlands, marshes, wet meadows, bogs, swamps, vernal pools, springs, banks, reservoirs, streams, brooks, creeks, rivers, lakes, ponds of any size, beaches, dunes, estuaries, flats, fens, the ocean and lands under water bodies;
         (b)   Lands adjoining these resource areas out to a distance of 100 feet, known as the buffer zone and excluding land subject to coastal storm flowage and the coastal flood resilience zone;
         (c)   Riparian lands adjoining rivers, streams, brooks and creeks, whether perennial or intermittent out to a distance of 25 feet, known as the riverfront area; provided that the Conservation Commission in its regulations may include a separate designation for areas identified as an “extended riverfront area”, in which the riverfront area may be extended up to 200 feet;
         (d)   Lands adjoining salt marsh out to a distance of 100 feet;
         (e)   Lands subject to flooding or inundation by groundwater or surface water;
         (f)   Lands subject to tidal action, coastal storm flowage or flooding;
         (g)   The Coastal Flood Resilience Zone, as established by the Commission; and
         (h)   The Inland Flood Resilience Zone as established by the Commission.
      (2)   Any activity proposed or undertaken which is not set forth above but which activity the Conservation Commission finds will alter an area subject to the ordinance will require the filing of a notice of intent.
      (3)   The buffer zone is presumed important to the protection of the resource areas because activities undertaken in close proximity to resource areas have a reasonable probability of adverse impact upon the wetland or other resource, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include without limitation erosion, siltation, loss of groundwater recharge, degraded water quality, loss of wildlife habitat, degradation of wetland plant habitat, alteration of hydrology, soil contamination and proliferation of invasive plants.
      (4)   The Commission therefore may require that any person filing an application (hereinafter, the applicant) restore or maintain a strip of continuous, undisturbed or restored vegetative cover or waterfront public access throughout the waterfront area, unless the Commission determines, based on adequate evidence, that the area or part of it may be altered without harm to the values of the resource areas protected by the ordinance. Such disturbed areas must be minimized to the greatest extent possible.
      (5)   The above-named resources are collectively known as the “resource areas protected by the ordinance” or “resource areas”. Said resource areas shall be protected whether or not they border surface waters.
   (D)   Exemptions. 
      (1)   The applications and permits required by this Section may not be required for maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, telegraph or other telecommunication services; provided that written notice has been given to the Conservation Commission prior to commencement of work; the structure or facility will not be, as determined by the Commission or its Agent, substantially changed or enlarged; and the work conforms to any performance standards and design specifications in regulations adopted by the Commission to the extent practicable as determined by the Commission.
      (2)   The following exemptions shall apply and no application or permit is required under this Section for:
         (a)   Normal maintenance or improvement of land in agricultural and aquacultural use as defined by the Wetlands Protection Act regulations at 310 CMR 10.04;
         (b)   Minor activities, identified in 310 CMR 10.02(2)(b)2 proposed or undertaken within the buffer zone to an area subject to protection under this Section. In the judgment of the Commission, any activity that will alter a resource area subject to this Section is subject to regulation and requires the filing of a notice of intent; and
         (c)   Emergency projects for the protection of the health and safety of the public; provided that the work is to be performed by or has been ordered to be performed by an Agency of the commonwealth or a political subdivision thereof; provided that advance notice, oral or written, has been given to the Commission prior to commencement of work; provided that the Commission or its Agent certifies the work as an emergency project; provided that the work is performed only for the time and place certified by the Commission for the limited purposes necessary to abate the emergency; and provided that within 21 days of commencement of an emergency project a permit application shall be filed with the Commission for review as provided by this Section. Upon failure to meet these and other requirements of the Commission, the Commission may, after notice and a public hearing, revoke or modify an emergency project approval and order restoration and mitigation measures.
   (E)   Applications and fees.
      (1)   Application and applicability. 
         (a)   No one intending to conduct any of the above-named activities may commence such activity within the jurisdiction of this Section without an applicant filing a written notice of intent and without an applicant receiving an order of conditions and provided all appeal periods have elapsed. Such notice shall be sent by certified mail or hand delivered to the Conservation Commission, including all plans as may be necessary to describe the proposed activity and its effect on the environment. The Commission may make provision for electronic delivery of notice and of required materials. The Conservation Commission may require information in addition to the plans and specifications required to be filed by an applicant under M.G.L. Chapter 131, Section 40, in order to fulfill the requirements of this Section. Such information shall take into consideration the effect that projected sea level rise, changes in storm intensity and frequency and other consequences of climate change may have on resource areas and the activities proposed in the permit application. The applicant shall, to the extent applicable as determined solely by the Commission, integrate climate resilience and adaptation considerations into their project. No application shall be deemed complete or timely without the submission of all application forms, plans and all requested additional materials. No activities shall commence without receiving a permit issued pursuant to this Section.
         (b)   Any person desiring to know whether or not a proposed activity or an area is subject to this Section may in writing request a determination from the Commission. Such a request filed under the ordinance shall include information, plans and resource area delineations as deemed necessary by the Commission. The Conservation Commission shall make a determination as to whether or not this Section applies to a specific situation prior to the filing of a written notice of intent under the provisions hereof, within 21 days of the receipt of a written request for determination of applicability sent by certified mail or hand delivered from any person desiring such determination.
         (c)   The Conservation Commission may by regulation establish procedures for administrative review of specified activities for designated areas within Coastal Flood Resilience Zone or Inland Flood Resilience Zone consistent with the protections provided by this Section.
      (2)   Filing fee. At the time of an application, the applicant shall pay a filing fee specified in regulations of the Commission. The fee is in addition to that required by the Wetlands Protection Act (M.G.L. Chapter 131, Section 40) and regulations (310 CMR 10.00). No application shall be deemed complete or timely without the payment of all required fees.
      (3)   Consultant review. 
         (a)   Pursuant to M.G.L. Chapter 44, Section 53G and regulations promulgated by the Commission, the Commission may impose reasonable fees upon applicants for the purpose of securing outside consultants including engineers, wetlands scientists, wildlife biologists or other experts in order to aid in the review of proposed projects. Such funds shall be deposited with the City Treasurer who shall create a revolving fund specifically for this purpose. Additional consultant fees may be requested where the requisite review is more expensive than originally calculated or where new information requires additional consultant services.
         (b)   In such instances the Commission shall notify in writing the applicant of this need and the estimated costs to be borne by the applicant, request payment of that fee and provide the opportunity for the application to be amended or withdrawn. Notice shall be deemed to have been given on the date the Commission mails or hand delivers said notification. The applicant may withdraw the application or request within five business days of the date notice is given without incurring any costs or expenses.
         (c)   Consultants must meet the minimum qualifications of: an educational degree in or related to the field at issue; or three or more years of practice in the field at issue or a related field. Such consultants shall work for and represent the interests of the Commission. The Commission shall return any unused portion of the consultant fee to the applicant unless the Commission decides at a public meeting that other further or additional or different services of the consultant are necessary to make an objective decision.
         (d)   The Commission may waive all application and consultant review fees for any permit application or notice filed by the city or another government Agency. The Commission may waive all application and consultant review fees for any permit application or notice filed upon determination by the Commission that the proposed work will further the Resource Area Values of this Section.
      (4)   Additional fees. The Conservation Commission may adopt such additional fees as it may determine necessary to protect the Resource Area Values of this Section.
   (F)   Notice and hearings.
      (1)   The Commission may conduct a public hearing on any request for determination of applicability, an abbreviated notice of resource area delineation or notice of intent and shall conduct a public hearing on any permit application. The Commission in an appropriate case may combine its hearing under this Section with the hearing conducted under the Act and regulations.
      (2)   The Commission shall commence a public hearing within 21 days from receipt of a completed request, notice or permit application unless an extension is authorized in writing by the applicant. The Commission shall have authority to continue the hearing to a specific date announced at the hearing, for reasons stated at the hearing, which may include the need for additional information from the applicant or others as deemed necessary by the Commission in its discretion.
      (3)   Notice, including the date, time, place and subject of any such hearing shall be given at least five business days prior to the hearing, in a newspaper of general circulation in the municipality at the expense of the applicant, and on the Commission’s internet website, as well as by any other method determined by the Commission to provide adequate notice to parties in interest. Notices shall be publicized, and hearings shall be conducted in accordance with the Open Meeting Law, being M.G.L. Chapter 30A, Sections 18—25.
      (4)   Any person filing a request, notice, permit or other application with the Conservation Commission at the same time shall give written notice thereof, by certified mail (return receipt requested) or hand delivered, or by certificates of mailing to all abutters at their mailing addresses shown on the most recent applicable tax list of the assessors, including owners of land directly opposite on any public or private street or way, and abutters to the abutters within 300 feet of the project property line including any in another municipality or across a body of water. A copy shall be provided in the same manner to the Commission of the adjoining municipality, if the request, notice, permit or application pertains to property within 300 feet of that municipality. The notice shall state a brief description of the project or other proposal and the date of any Commission hearing or meeting date if known. The notice to abutters also shall include a copy of the application or request, with plans, or shall state where copies may be examined and obtained by abutters. An affidavit of the person providing such notice, with a copy of the notice mailed or delivered, shall be filed with the Commission. When a person requesting a determination is other than the owner, the request, the notice of the hearing and the determination itself shall be sent by the Commission to the owner as well as to the person making the request.
      (5)   Within 21 days of closing the public hearing, the Conservation Commission shall either:
         (a)   Determine the proposed activity is not significant to any of the Resource Area Values identified by the ordinance; or
         (b)   Decide that the proposed activity is significant to one or more of the Resource Area Values identified by the ordinance and shall issue an order of conditions for the protection of said values.
   (G)   Permits.
      (1)   (a)   Within 21 days of the close of the hearing the Commission shall issue or deny a permit for the activities requested upon determining that the activities which are subject to the permit application, or the land and water uses which will result therefrom, are likely to have a significant individual or cumulative effect on the Resource Area Values protected by this Section. The Commission shall consider the extent to which the applicant intends to avoid, minimize and mitigate any impact from activities subject to permitting. The applicant shall, to the extent applicable as determined solely by the Commission, integrate climate resilience and adaptation considerations into their project.
         (b)   In evaluating the project and prior to issuing any permit, the Commission shall consider cumulative loss, degradation, isolation and replacement or replication of such protected resource areas at the project site, resulting from past activities, whether by the applicant or any prior property owner and whether permitted, unpermitted or exempt. The Commission shall also consider individual and cumulative adverse impacts on protected resources arising from reasonably foreseeable future activities when evaluating a project application.
         (c)   The Conservation Commission shall explicitly consider climate change resilience and impacts in the issuance or denial of any permit through measurement of potential adverse impacts to resource areas for the protection of resource areas both as they currently exist and as are reasonably expected to exist based on the best available data on the projected impacts of climate change.
      (2)   The Commission shall enact guidelines, performance standards and implementing regulations establishing how climate change resilience will be considered during project review and ensuring consistency with other city regulations.
      (3)   Nothing in this Section shall be intended to prevent beneficial projects whose primary purpose is protection of resource areas and reduction of risk from coastal flooding, inland flooding, extreme weather, sea level rise and other adverse impacts of climate change. The Commission may enact guidelines, performance standards and implementing regulations specific to beneficial projects identified through the Climate Ready Boston process or equivalent or successor initiatives to advance and expedite such beneficial projects. The Conservation Commission may issue an order of conditions for district scale flood resiliency and flood protection projects where such projects require fill, including coastal fill above and seaward of existing seawalls only when necessary for flood protection; provided that the Commission finds by a preponderance of the evidence that the project will protect and improve coastal, riparian or aquatic habit over current and projected conditions, including, but not limited to, change from vertical seawall to intertidal habitat.
      (4)   The Conservation Commission is authorized to approve a permit when it determines by findings supported by substantial evidence that the proposed work meets all applicable performance standards and procedures under this Section or when work can be conditioned to meet all such performance standards, and where it determines by findings supported by substantial evidence that the work will not result in significant or cumulative adverse effects upon wetland Resource Area Values protected by this Section. If it issues a permit, the Commission may impose conditions that the Commission determines necessary or desirable to protect said Resource Area Values, and all activities shall be conducted in accordance with those conditions.
      (5)   The Conservation Commission is empowered to deny permission for any activity that would remove, fill, dredge, build upon, degrade, discharge into or otherwise alter subject lands within its jurisdiction if, in its judgment, such denial is necessary to preserve environmental quality of either or both the subject lands and contiguous lands. The Conservation Commission is further empowered to deny a permit for failure to meet the requirements of this Section; for failure to submit necessary information and plans requested by the Conservation Commission; for failure to meet the design specifications, performance standards and other requirements in regulations of the Conservation Commission; for failure to avoid or prevent significant or cumulative effects upon the Resource Area Values protected by this Section; or where no conditions are adequate to protect those values, in its sole discretion as the issuing authority.
      (6)   Notwithstanding anything to the contrary herein, each permit, application, notice and hearing will be considered on its own merits. Due consideration shall be given to possible effects of the proposal on all values to be protected under this Section. Any order of conditions or denial issued under this Section may differ from any such order or denial issued by the Conservation Commission under the provisions of M.G.L. Chapter 131, Section 40.
      (7)   In reviewing activities within the buffer zone, the Commission shall presume the buffer zone is important to the protection of other resource areas because activities undertaken in close proximity have a reasonable probability of adverse impact, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include, without limitation, erosion, siltation, loss of groundwater recharge, poor water quality, loss of wildlife habitat, degradation of wetland plant habitat, alteration of hydrology and proliferation of invasive plants. The Commission may establish, in its regulations, design specifications, performance standards and other measures and safeguards, including setbacks, and other work limits for protection of such lands, including without limitation strips of continuous, undisturbed vegetative cover, unless the Commission determines, based on adequate evidence, that the buffer zone or part of it may be altered without harm to the values protected by the ordinance.
      (8)   In reviewing activities within the riverfront area, the Commission shall presume the riverfront area is important to all the Resource Area Values unless demonstrated otherwise, and no permit issued hereunder shall permit any activities unless the Commission finds by preponderance of the evidence that there is no practicable alternative to the proposed project with less adverse effects, and that such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or values protected by this Section. The Commission shall regard as practicable an alternative which is reasonably available and capable of being done after taking into consideration the proposed property use, overall project purpose (e.g., residential, institutional, commercial or industrial), logistics, existing technology and other factors at its discretion. The Commission will also consider if the project proposes ecological enhancement of the riverfront area. The Commission may separately designate areas of the city, where in its discretion and by a preponderance of evidence that such areas are significant for the protection of the Resource Area Values protected by the ordinance, the riverfront area can be extended up to a distance of 200 feet.
      (9)   The adjacent areas to Land Subject to Coastal Storm Flowage (“LSCSF”), known as the Coastal Flood Resilience Zone (“CFRZ”), will become, or already may be part of, the 100-year floodplain due to sea level rise and changes in storm intensity or frequency. Because of this, activities undertaken within LSCSF and CFRZ have a reasonable probability of adverse impacts, including, without limitation, erosion, poor water quality, pollution of stormwater runoff and lack of flood control. The Commission may establish, in its regulations, the extent of the CFRZ, performance standards and other measures and safeguards for the protection of such resource area values within LSCSF and the CFRZ for the useful life of the project may vary within the CFRZ in accordance with, among other factors, the time when such areas are likely to become part of the floodplain. To the maximum extent possible, as determined by the Commission the CFRZ shall be consistent with other climate change planning documents used by other Offices and Agencies of the city. Furthermore, the Commission shall encourage salt marsh restoration and nourishment, land use that allows for the natural migration of salt marsh due to SLR, protection of potential salt marsh transitional areas, and may establish, in its regulations, design specifications, performance standards and other measures and safeguards, to protect the values protected by the ordinance.
      (10)   The inland areas known as the Inland Flood Resilience Zone (“IFRZ”), will become, or already may be experiencing flooding as the intensity, duration or frequency of precipitation events increase. Because of this, activities undertaken within the IFRZ have a reasonable probability of adverse impacts, including, without limitation, erosion, poor water quality, pollution of stormwater runoff and lack of flood control. The Commission may establish regulations the extent of the IFRZ. Performance standards and other measures and safeguards for protection of such resource area values within the BLSF and the IFRZ for the useful life of the project may vary within the IFRZ in accordance with, among other factors, the time when such areas are likely to become part of the floodplain. To the maximum extent possible, as determined by the Commission the IFRZ shall be consistent with other climate change planning documents used by other Offices and Agencies of the city.
      (11)   To prevent resource area loss, the Commission shall require applicants to avoid alteration wherever feasible; to minimize alteration; and, where alteration is unavoidable and has been minimized, to provide mitigation as determined by the Commission. The Commission may authorize or require replication of wetlands as a form of mitigation, but only with specific plans, professional design, proper safeguards, adequate security and professional monitoring and reporting to assure success, because of the statistical high probability of failure of such replication. The Commission may require an inventory and analysis of hydrology, vegetation, wildlife and wildlife habitat of the project area, to be paid for by the applicant, whenever it deems appropriate, regardless of the type of resource area or the amount or type of alteration proposed. The decision shall be based upon the Commission’s determination of the importance of the habitat area considering (but not limited to) such factors as proximity to other areas suitable for wildlife, importance of wildlife corridors in the area, the resource significance of the project area or actual or expected presence of rare and/or unique plant or animal species in the area. The work shall be performed by an individual who meets the qualifications set out in the wildlife habitat Section of the Wetlands Protection Act Regulations (310 CMR 10.60).
      (12)   Any areas within the city which have been designated as areas of critical environmental concern by the Secretary of Energy and Environmental Affairs of the commonwealth, are so designated due to the particularly unique environmental factors that affect such areas and that highlight the unique importance of each area so designated. As a result of such designation, it is incumbent upon the Commission to be even more diligent in its review of projects proposed within or bordering such areas. The highest standards of scrutiny as to the impact of any proposal are required and shall be exercised by the Commission. Close scrutiny shall be given by the Commission to any proposals involving an application of new pavement or newly installed other impervious materials within any area less than 100 feet from bordering vegetated wetland, bank, beach and meadow.
      (13)   The Conservation Commission may recommend to the Mayor and Boston City Council that the City separately designate areas of environmental concern according to criteria and guidelines established by the Commission and distinct from those used by the Secretary of Environmental Affairs of the commonwealth.
      (14)   The Commission shall presume that all areas meeting the definition of vernal pool, including the adjacent area known as “vernal pool habitat”, perform essential habitat functions. This presumption may be overcome only by the presentation of credible evidence which, in the judgment of the Commission, by a preponderance of the evidence demonstrates that the basin or depression or surrounding area does not provide essential habitat functions. Any formal evaluation should be performed by an individual who at least meets the qualifications under the wildlife habitat Section of the Wetlands Protection Act Regulations (310 CMR 10.60).
      (15)   The Commission may require that an applicant submit a resources management plan to the Commission if the Commission determines such a plan is required to meet the goals and standards of this Section and the order of conditions of the permit. A resources management plan shall adequately describe measures at the site intended to protect and enhance site resources and to eliminate, mitigate or minimize project impacts. The Commission may require that the resources management plan include a detailed budget and identify the entity legally responsible for implementing the plan.
      (16)   Activities and their ancillary uses in FEMA velocity zones which result in alterations to vegetative cover, interruptions in the supply of sediment to other wetland resources or changes to the form or volume of a dune or beach that will have an adverse effect on said landform’s ability to provide storm damage prevention and flood control are, therefore, prohibited. These activities include, but are not limited to, construction of: foundations other than open pilings or columns; new or proposed expansions of roads, driveways or parking lots, or impermeable paving for existing unpaved roads, driveways or parking lots; new or proposed expansions of coastal engineering structure.
      (17)   The permit shall be valid for three years from the date of its issuance.
      (18)   The Conservation Commission may extend a permit for a period of up to an additional three-year period from date of issuance. The request for an extension shall be made to the Conservation Commission at least 21 days prior to the expiration of the permit. The Commission shall hold a public hearing in accordance with the ordinance and its regulations within 21 days of receipt of said request. Should said public hearing be continued past the date of the expiration of the permit, the expiration date shall be stayed to the date on which the Commission votes on whether to extend the permit.
      (19)   The order of conditions shall be recorded in the County Registry of Deeds or Registry District of the Land Court, where appropriate, prior to the commencement of any of the proposed activities regulated by the order of conditions. No work shall commence until proof of recording is provided to the Commission. If work is undertaken without the applicant first recording the permit, the Conservation Commission may issue an enforcement order.
      (20)   The Commission may revoke a permit, order, determination or decision issued under the ordinance, but only for violation of this Section and only after notice of violation to the permittee and abutters, and after a properly noticed public hearing. The Commission may establish written policies and procedures with respect to permit revocation, including provision for sufficient written warning and opportunity to cure.
      (21)   Amendments to permits, orders and determinations shall be handled in the manner set out in the Wetlands Protection Act regulations and policies thereunder.
   (H)   Regulations. 
      (1)   After public notice and public hearing, the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this Section, effective when voted and filed with the City Clerk. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this Section. At a minimum these regulations shall reiterate the terms defined in this Section, define additional terms not inconsistent with the ordinance, impose filing fees, set forth a policy for treatment of qualifying work in the flood resilience zones, take into account climate resilience, specify resource areas subject to Commission jurisdiction as provided for in the ordinance including the waterfront area, coastal flood resilience zone and inland flood resilience zone, and prescribe performance standards for activities in any or all resource areas and their buffer zones.
      (2)   The Commission may amend the rules and regulations after public notice and public hearing.
      (3)   For all proposed reference maps delineating resource areas, the Commission shall conduct a public rule-making process, including, but not limited to, posted notice of a hearing on the proposed reference map or maps, posting of the proposed reference maps, written notice of posting to parties requesting such notice, a minimum 30-day comment period, a written “response to comments” posted not less than seven days before any hearing and a properly noticed public hearing.
      (4)   Unless otherwise stated in this Section or in the rules and regulations promulgated under this Section, the definitions, procedures and performance standards of the Act and Regulations as most recently promulgated shall apply.
   (I)   Security. As part of a permit issued under this Section, in addition to any security required by any other municipal or commonwealth Board, Agency or Official, the Conservation Commission may require that the performance and observance of the conditions imposed thereunder (including conditions requiring mitigation work) be secured wholly or in part by any combination of the methods described below:
      (1)   By a proper bond, deposit of money or negotiable securities under a written third-party escrow arrangement, or other undertaking of financial responsibility sufficient in the opinion of the Commission, to be released in whole or in part upon issuance of a certificate of compliance for work performed pursuant to the permit;
      (2)   By accepting a conservation restriction, easement or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of this municipality whereby the permit conditions shall be performed and observed before any lot may be conveyed other than by mortgage deed; and
      (3)   By any other method the Commission determines effective by preponderance of the evidence to achieve the purposes and intent of this Section.
   (J)   Enforcement.
      (1)   No person shall remove, fill, dredge, build upon, degrade or otherwise alter resource areas protected by this Section, or cause, suffer or allow such activity, or leave in place unauthorized fill, or otherwise fail to restore illegally altered land to its original condition, or fail to comply with a permit or an enforcement order issued pursuant to this Section.
      (2)   The Conservation Commission, its Agents, Officers and employees shall have authority to enter upon privately owned land for the purpose of performing their duties under this Section and may make or cause to be made such examinations, surveys or sampling as the Commission deems necessary, subject to the constitutions and laws of the United States and the commonwealth.
      (3)   The Commission shall have authority to enforce this Section, its regulations and permits issued thereunder by letters, phone calls and electronic communication, violation notices, fines, noncriminal citations under M.G.L. Chapter 40, Section 2 ID and civil and criminal court actions. Any person who violates the provisions of this Section may be ordered to restore the property to its original condition and take other action deemed necessary to remedy such violations.
      (4)   The Commission shall have the authority to set fine amounts and levy fines for violations under this Section and under the Wetlands Protection Act.
      (5)   Upon request of the Commission, the Corporation Counsel shall take legal action for enforcement under civil law. Upon request of the Commission, the Chief of Police shall take legal action for enforcement under criminal law.
      (6)   Municipal boards and Officers, including any Police Officer or other Officer having Police powers, shall have authority to assist the Commission in enforcement.
      (7)   Any person who violates any provision of this Section, or regulations, permits or administrative orders issued thereunder, shall be punished by a fine established by the Commission. Each day or portion thereof during which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the ordinance, regulations, permits or administrative orders violated shall constitute a separate offense. Each resource area, buffer zone or portion thereof in which a violation continues, or unauthorized fill or other alteration remains in place, shall constitute a separate offense, and each provision of the ordinance, regulations, permits or administrative orders violated shall constitute a separate offense
      (8)   As an alternative to criminal prosecution in a specific case, the Commission may issue citations with specific penalties pursuant to the non-criminal disposition procedure set forth in M.G.L. Chapter 40, Section 21D.
   (K)   Burden of proof. The applicant for a permit shall have the burden of proving by a preponderance of evidence that the work proposed in the permit application will not have unacceptable significant or cumulative adverse effect upon the Resource Area Values protected by this Section. Failure to provide adequate evidence to the Conservation Commission supporting this burden shall be sufficient cause for the Commission to deny a permit or grant a permit with conditions.
   (L)   Appeals. A decision of the Conservation Commission shall be reviewable in the Superior Court in accordance with M.G.L. Chapter 249, Section 4.
   (M)   Relation to the Wetlands Protection Act and other statutes. This Section is adopted under the Home Rule Amendment of the commonwealth’s Constitution, being its Article LXXXIX, and the Home Rule statutes, being M.G.L. Chapter 43B, independent of the Wetlands Protection Act (M.G.L. Chapter 131, Section 40) and regulations (310 CMR 10.00) thereunder, and other federal, commonwealth and local environmental statutes. Activities that may not require review or permitting under the Wetlands Protection Act, the Rivers Protection Act, being Chapter 258 of the Acts of 1996, or other federal, commonwealth or local statutes are not assumed to be exempt from this Section. It is the intention of this Section that the purposes, jurisdiction, authority, exemptions, regulations, specifications, standards and other requirements shall be interpreted and administered as stricter than those under the Wetlands Protection Act and regulations.
   (N)   Climate change resilience. The applicant shall, to the extent applicable as determined by the Commission, integrate climate change and adaptation planning considerations into their project to promote climate resilience to protect and promote Resource Area Values and functions into the future. These considerations include but are not limited to: sea level rise, increased heat waves, extreme precipitation events, stormwater runoff, changing precipitation patterns and changes in coastal and stormwater flooding.
   (O)   Stormwater management. 
      (1)   Work or activity specified in a request for determination of applicability or an application for a permit and subject to the ordinance shall meet, at a minimum, the best management practices for stormwater management as set forth in the Stormwater Management Standards of the commonwealth’s Department of Environmental Protection and any separate standards and guidelines prepared by the city and the Boston Water and Sewer Commission.
      (2)   The Commission may require feasible stormwater measures consistent with the resource protection, climate change resiliency and all other applicable provisions of the ordinance and as specified in regulations and performance standards.
   (P)   Climate equity and environmental justice. The Commission may issue regulations and guidelines addressing climate equity and environmental justice for inclusion within the climate change resilience planning considerations, consistent with the intent and provisions of this Section. Commission shall issue regulations and guidelines only after public notice, public hearing and direct engagement with residents and neighborhoods that may be adversely affected by disparate impacts of climate change.
   (Q)   Severability. The invalidity of any Section or provision of this Section shall not invalidate any other Section or provision thereof, nor shall it invalidate any permit, approval or determination which previously has been issued.
   (R)   Effective date and reporting. All of these provisions and requirements set forth in this Section shall take effect immediately upon passage and the Commission shall promulgate implementing regulations to fully effectuate this Section. Furthermore, the Commission will provide updates on its implementation of such regulations to the Boston City Council at least quarterly.
(CBC 1985 7-1.4; Ord. 2019 c. 8)
7-2   AIR POLLUTION CONTROL COMMISSION.
7-2.1   Appointment; Powers and Duties.
   (A)   There shall be in the Health and Hospitals Departments a Board, known as the Air Pollution Control Commission, consisting of the Commissioner of Health and Hospitals, ex officio; the Commissioner of Traffic and Parking, ex officio; the Environment Commissioner, ex officio; and four members appointed by the Mayor. Of the four members appointed by the Mayor, at least one member shall serve for a three-year term. The appointive members shall serve for a term expiring on the first Monday of January, 1980. As the term of any member expires, his or her successor shall be appointed by the Mayor for a term of three years. Any vacancy in the Office of an appointive member shall be filled by the Mayor for the unexpired term. All members of the Commission shall serve without compensation.
   (B)   The Air Pollution Control Commission shall not be subject to the supervision or control of the Board of Health and Hospitals or of Commissioner of Health and Hospitals except as he or she acts as a member of the Commission; but unless otherwise ordered by the Mayor, the Commission shall not communicate with the Mayor, or make any annual or other report, except through the Board of Health and Hospitals.
   (C)   The Air Pollution Control Commission shall have full jurisdiction to regulate and control atmospheric pollution as now or hereafter provided in M.G.L. Chapter 111, Section 31C.
   (D)   The Air Pollution Control Commission shall have jurisdiction to investigate, control and abate noise from whatever source, and shall also have power, after due notice and a public hearing, to adopt noise level standards and to promulgate regulations, including regulations providing that no activity likely to produce unreasonable noise may be carried on unless a permit therefor is first obtained from the Commission, which may specify in such permit the time or times within which, and the method by which, such activity is to be carried on. The Commission may fix a fee of not less than $10 nor more than $100 for each permit issued by it.
   (E)   The Air Pollution Control Commission shall have power to require the production of records and documents relevant to its work and to compel the attendance and testimony of witnesses before it.
(Rev. Ord. 1961 (Sup. 1971) c. 15 § 2; CBC 1975 Ord. T7 § 50; Ord. 1977 c. 3; CBC 1985 7-2.1; Ord. 2021 c. 13 § 2)
Cross-reference:
   M.G.L. Chapter 111, Section 31C; Ord. ss 2-7.1; Ord. ss 12-1.1
7-2.2   Building Emissions Reduction and Disclosure.
   (A)   Purpose.
      (1)   It is the intent of this Subsection to reduce the emissions of air pollutants, including greenhouse gases, from building energy production and consumption, and thereby to encourage efficient use of energy and water, develop further investment in building a green economy, including by encouraging the hiring and training of green jobs, protect public health and promote equitable access to housing. To do so, the provisions of this Subsection require the reporting and disclosure of annual energy use, disclosure of annual water use in all covered buildings and compliance with emissions requirements in accordance with this article.
      (2)   The Air Pollution Control Commission has enforcement authority pursuant to, inter alia, Article 89 of the commonwealth’s Constitution; M.G.L. Chapter 111, Section 31C; M.G.L. Chapter 40, Section 21D; M.G.L. Chapter 40U; and this Subsection.
   (B)   Definitions. For the purpose of this Subsection, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      ALTERNATIVE COMPLIANCE PAYMENT. A per-metric ton payment based on the average cost per metric ton of CO2e to decarbonize buildings subject to this Subsection.
      BUILDING. A city building, non-residential building or residential building as defined in this Subsection or by regulation.
      BUILDING PORTFOLIO. Two or more Buildings, on one or more properties; provided that:
         (a)   All buildings within the portfolio have the same owner; for this purpose, a building management company does not constitute an owner; or
         (b)   All buildings within the portfolio are part of an approved Institutional Master Plan.
      BUILDING USE. 
         (a)   Space type as defined in the Regulations, which refers to the primary activity for which a given space is utilized, as entered into the Portfolio Manager; or
         (b)   Other activities as defined in the ENERGY STAR Portfolio Manager or by the Regulations as may be updated from time to time.
      CARBON DIOXIDE EQUIVALENT (“CO2E”). Greenhouse gas emissions, including carbon dioxide, methane and nitrous oxide. CO2e shall be calculated using a methodology as set forth in the regulations and as may be amended, from time to time, by the regulations.
      CITY. The City of Boston.
      CITY BUILDING. A building, as it appears in the records of the Boston Assessing Department, that is owned by the city, or for which the city regularly pays all of the annual energy bills. CITY BUILDINGS shall include buildings that are owned or managed by the Boston Housing Authority.
      COMMISSION. The Air Pollution Control Commission.
      COMMUNITY-BASED ORGANIZATION. A not-for-profit organization that is driven by community residents, that is the majority of the governing body and staff consists of local residents, the main operating Offices are in the community of service, priority issue areas are identified and defined by residents, solutions to address priority issues are developed with residents and program design, implementation and evaluation components have residents intimately involved and in leadership positions.
      DAYS. Consecutive calendar days.
      ELECTRICAL VEHICLE SUPPLY EQUIPMENT (“EVSE”). Equipment for the purpose of transferring electric energy to a battery or other energy storage device in an electric vehicle, including, but not limited to, electric vehicle charging stations as defined in M.G.L. Chapter 25A, Section 16.
      EMERGENCY BACKUP GENERATION/BACKUP POWER. A device or mechanism, such as battery storage, reciprocating internal combustion engine or turbine, that serves solely as a secondary source of mechanical or electrical power whenever the primary energy supply is disrupted or discontinued during power outages or natural disasters that are beyond the control of the owner, occupant or operator of a building.
      EMISSIONS. The emission of greenhouse gases, measured in units of Carbon Dioxide Equivalent associated with the generation and transmission of energy used by a building.
      EMISSIONS FACTOR. CO2e calculated according to regional energy and greenhouse gas factors as set forth in the regulations, as may be amended from time to time.
      EMPLOYMENT PLAN. A plan submitted to the Mayor’s Office of Workforce Development by a building owner establishing training protocols and minimum employment standards.
      ENERGY. Electricity, heating and cooling from any fuel source including, but not limited to, natural gas, fuel oil, propane and power used to generate steam and hot and chilled water, and any other sources of energy that the Commission may designate.
      ENERGY STAR PORTFOLIO MANAGER OR PORTFOLIO MANAGER. The United States Environmental Protection Agency’s online tool for reporting and managing Building Energy data.
      ENVIRONMENT DEPARTMENT. The City Environment Department.
      ENVIRONMENTAL JUSTICE POPULATION. 
         (a)   A neighborhood that meets one or more of the following criteria:
            1.   The annual median household income is not more than 65% of the state-wide annual median household income;
            2.   Minorities comprise 40% or more of the population;
            3.   Twenty-five percent or more of households lack English language proficiency;
            4.   Minorities comprise 25% or more of the population and the annual median household income of the municipality in which the neighborhood is located does not exceed 150% of the commonwealth annual median income; or
            5.   Such other meaning as is adopted or amended by the commonwealth’s Executive Office of Energy and Environmental Affairs, by commonwealth statute, or defined in the Regulations.
         (b)   In the event of a conflict with the Regulations, the requirements in the Regulations shall prevail.
      GROSS FLOOR AREA (“GFA”) or AREA. The total number of square feet measured between the principal exterior surfaces of enclosing fixed walls.
      HARDSHIP COMPLIANCE PLAN. Alternative Emissions reduction targets and/or timelines for a Building or Building Portfolio.
      INDIVIDUAL COMPLIANCE SCHEDULE. An alternative timeline for complying with the Emissions Standards outlined in this Subsection, as may be updated by the Regulations.
      NON-RESIDENTIAL BUILDING. As it appears in the records of the Boston Assessing Department, either:
         (a)   1.   A building that equals or exceeds 20,000 square feet in gross building area, and of which 50% or more of the gross building area, excluding parking, is used for commercial, retail, office, professional, educational or other non-residential purposes;
            2.   A parcel with a single owner and multiple buildings whose gross building areas cumulatively equal or exceed 20,000 square feet, and of which 50% or more of the cumulative gross building area, excluding parking, is used for commercial, retail, office, professional, educational or other non-residential purposes. Each such building shall individually comply with the requirements of this Subsection, including reporting and complying with emissions standards, unless part of a building portfolio; or
            3.   Any grouping of non-residential buildings designated by the Review Board as an appropriate reporting unit. Each such building shall individually comply with the requirements of this Subsection, including reporting and complying with emissions standards, unless part of a building portfolio.
         (b)   The term NON-RESIDENTIAL BUILDING shall not include any building that is a city building.
      OWNER. 
         (a)   A building’s owner of record; provided that the OWNER may be deemed to include:
            1.   Multiple OWNERS in common ownership;
            2.   The association or organization of unit OWNERS responsible for overall management in the case of a condominium; and
            3.   The Board of Directors in the case of a cooperative apartment corporation.
         (b)   In the case of a building subject to a lease that assigns maintenance, regulatory compliance and/or capital improvement costs to tenants with a term of at least 30 years, inclusive of all renewal options, the owner may designate the lessee as OWNER for purposes of compliance with this Subsection; such designation must be provided in writing to the Commission as required by the Regulations.
         (c)   An OWNER may designate an Agent to act on its behalf, including reporting as required by this Subsection; provided, however, that such designation:
            1.   Must be provided in writing to the Commission; and
            2.   Does not relieve the OWNER of any compliance obligation under this Subsection.
      POWER PURCHASE AGREEMENT. A contract by which an owner agrees to purchase electricity from a generating facility over a fixed term of years.
      REGULATIONS. The Air Pollution Control Commission’s Building Emissions Reduction and Disclosure Regulations.
      RENEWABLE ENERGY CERTIFICATE (“REC”). A certificate representing the positive environmental attributes associated with the production of one megawatt hour (“MWh”) of electricity by a renewable energy facility.
      RESIDENTIAL BUILDING. 
         (a)   As it appears in the records of the Boston Assessing Department, either:
            1.   A building with 15 or more total individual dwelling units that, together with hallways and other common space serving residents, comprise more than 50% of the gross building area, excluding parking;
            2.   A parcel with a single owner and multiple buildings that cumulatively have 15 or more total individual dwelling units or that cumulatively equal or exceed 20,000 square feet in gross building area. Each such building shall individually comply with the requirements of this Subsection, including reporting and complying with emissions standards, unless part of a building portfolio; or
            3.   Any grouping of residential buildings designated by the Review Board as an appropriate reporting unit. Each such building shall individually comply with the requirements of this Subsection, including reporting and complying with emissions standards, unless part of a building portfolio.
         (b)   The term RESIDENTIAL BUILDING shall not include a city building or a non-residential building.
      REVIEW BOARD. The Board established pursuant to Section(s) of this Subsection.
      TENANT. Any tenant, tenant-stockholder of a cooperative apartment corporation and condominium unit owner.
      THIS SUBSECTION. Refer to Chapter VII, Subsection 7-2.2 of the City of Boston Code.
      VERIFICATION YEAR. Any year where an owner must report third-party verified reporting data. VERIFICATION YEARS will be the first year following the enactment of this Subsection, 2026 and every five years thereafter.
   (C)   Building portfolios. Building portfolios must be approved by the Review Board, and building portfolio owners must submit documentation confirming eligibility as a building portfolio. Notwithstanding the approval of a building portfolio, owners must continue to report the water and energy use, emissions data and any other information required by this Subsection for each individual building. If a building is removed from or added to a building portfolio for any reason, including transfer to a different owner, the building shall retain its individual reporting data and be subject to the emissions standards and the building portfolio shall be adjusted to reflect the removal or addition of the building. The Review Board may require that the owner submit a portfolio emissions reduction plan that prioritizes emissions reductions in buildings located in or near Environmental Justice Populations, and may set further conditions on the approval of a building portfolio consistent with the regulations. The city may create multiple building portfolios.
   (D)   Energy, emissions and water disclosure required for city buildings.
      (1)   No later than May 15 of each year, the city shall report to the Commission the previous year’s energy and water use by each city building. No later than October 1 of each year, the city shall publicly disclose:
         (a)   The previous year’s energy and water use by each city building; and
         (b)   The emissions compliance status of each city building.
      (2)   The Commission shall coordinate the performance of this requirement.
   (E)   Energy, emissions and water reporting required for non-city buildings.
      (1)   Data reporting requirements. 
         (a)   No later than May 15 of each year, the owner of each building subject to reporting requirements shall accurately report to the Commission, via the Portfolio Manager or as required by the regulations, the following information for the previous calendar year:
            1.   Energy and water use of each building and other building characteristics necessary to evaluate absolute and relative CO2e emissions intensity as required by the Commission. Energy and water use data shall not include its associated cost;
            2.   The primary building use(s) of each building in accordance with the categories listed in the Portfolio Manager and the regulations. Multiple primary building uses can be reported; provided that each use occupies at least 10% of the building’s square footage or accounts for at least 10% of the building’s annual energy use or CO2e emissions;
            3.   If applicable, any Renewable Energy Certificates (“RECs”) used to comply with the emissions standards set forth in this Subsection, including proof of retirement of the RECs;
            4.   If applicable, any energy purchased via a Power Purchase Agreement(s) that was used at the building and/or used to comply with the emissions standards set forth in this Subsection, including, if relevant, proof of retirement of associated RECs and the emissions factor of the grid where the generating facility is located, if on a grid other than ISO New England. Owners must provide the material terms of an executed Power Purchase Agreement that demonstrates:
               a.   The quantity of energy purchased in the relevant calendar year;
               b.   The type and generation location of the energy purchased;
               c.   The ownership of any RECs associated with the energy, if relevant; and
               d.   Other information required by the regulations.
            5.   Any CO2e emissions factors for energy used by the building if different from the emissions factors in the regulations; and
            6.   Contact information for owners and any designated Agents.
         (b)   Building owners may choose to report additional metrics, including, but not limited to, building waste, occupancy, density, operational hours, net lessees, Boston Resident Jobs Policy compliance, energy storage and indoor air quality.
      (2)   Reporting schedules. 
         (a)   The initial reports shall occur according to the following schedule.
            1.   For every non-residential building equal to or greater than 50,000 gross square feet or two or more buildings on the same parcel that equal or exceed 100,000 gross square feet, the first report shall be submitted no later than September 15, 2014.
            2.   For every non-residential building equal to or greater than 35,000 gross square feet but less than 50,000 gross square feet, the first report shall be submitted no later than May 15, 2016.
            3.   For every non-residential building, or two or more buildings on the same parcel, equal to or greater than 20,000 gross square feet but less than 35,000 gross square feet, the first report shall be submitted no later than May 15, 2022.
            4.   For every residential building equal to or greater than 50 units or 50,000 gross square feet, or two or more buildings held in the same condominium form of ownership that are governed by the same Board of Managers that together equal or exceed 50 units or 50,000 gross square feet, the first report shall be submitted no later than May 15, 2015.
            5.   For every residential building equal to or greater than 35 units or 35,000 gross square feet, the first report shall be submitted no later than May 15, 2017.
            6.   For every residential building, or two or more buildings on the same parcel, equal to or greater than 15 units or 20,000 gross square feet but less than 35 units or 35,000 square feet, the first report shall be submitted no later than May 15, 2022.
         (b)   Notwithstanding the foregoing, the Review Board shall develop a procedure for establishing alternative reporting dates for building owners who supply timely notification of extenuating circumstances. In 2022, building owners may apply for a one-time six-month extension on their reporting deadline.
   (F)   Direct upload. Provided that the necessary mechanisms already exist, building owners may authorize an energy or water utility or other third party to report building-specific data on their behalf to the Commission. Such authorization shall not create an obligation on the part of energy or water utilities or remove the obligation of building owners to comply with reporting requirements.
   (G)   Equitable Emissions Investment Fund. 
      (1)   The City Auditor shall establish the Equitable Emissions Investment Fund (hereinafter, the “Fund”) as a separate account and credit to the Fund all alternative compliance payments and penalties made pursuant to this Subsection; the city or Environment Department may direct other funds to the Fund at its discretion. The Review Board is responsible for evaluating local carbon abatement proposals, and making recommendations for expenditures from the Fund.
      (2)   Money in the Fund shall be expended for the support, implementation and administration of local building carbon abatement projects that benefit the city’s emissions reduction goals. Fund expenditures shall prioritize projects that benefit Environmental Justice Populations and populations disproportionately affected by air pollution, including by improving or promoting:
         (a)   Low-income affordable housing and housing where tenants are at risk of displacement and in need of rent stabilization;
         (b)   Local air quality improvement;
         (c)   Indoor environmental quality and health for building tenants;
         (d)   Economic inclusion, training and technical assistance for Minority, Women and Disadvantaged Business Enterprises (“MWDBE”) and cooperative contractors;
         (e)   Equitable workforce development training programs for residents who have been disproportionately impacted by the effects of climate change;
         (f)   Projects with community ownership of housing and renewable energy infrastructure;
         (g)   Reduced energy burdens; or
         (h)   Any further environmental initiatives.
      (3)   The regulations will address conditions for expenditure, which may include but are not limited to the scale of anticipated emissions reductions, compliance with employment and contracting standards, living wage standards, language access, rent stabilization, air quality monitoring and improvements, housing stability, disclosure of compliance status and mechanisms to tenants and compliance with Fair Housing standards.
      (4)   During each fiscal year, the Review Board may incur liabilities against and spend monies from the Fund, which shall operate for fiscal years that begin on or after the date of implementation. Money in the Fund may be used for administrative costs incurred by the Review Board, including compensation for members as provided in division (S) below, or by the Environment Department in supporting the Review Board.
   (H)   Data verification.
      (1)   Building owners shall self-certify their reporting data every year.
      (2)   In the building’s first year of reporting after this Subsection is enacted, building owners shall provide a third-party verification of their reporting data for the previous year. For every verification year thereafter, building owners shall provide a third-party verification for the five calendar years prior, but not including, the current year. Verifications must be performed by qualified energy professionals, as defined by the regulations, and submitted no later than the reporting deadline of the relevant year.
      (3)   In the event that there is a discrepancy between third-party verified data and an owner’s self-certified reporting data, any resulting lack of compliance with the emissions standards in this Subsection shall be subject to fines as outlined in the regulations.
      (4)   The Commission may revise requirements for data verification and qualified energy professionals via the regulations.
   (I)   Emissions requirements.
      (1)   Each building subject to the reporting requirements of this Subsection shall comply with the CO2e emissions standards set forth in Table 1 below; provided, however, that building owners may develop and request approval for Individual Compliance Schedules pursuant to the requirements in division (K) below or request a Hardship Compliance Plan pursuant to division (L) below. Buildings must comply with the emissions standards on an annual basis and compliance shall be measured as a total of metric ton of CO2e emissions per square foot. Buildings equal to or greater than 20,000 square or 15 units but less than 35,000 square feet or 35 units shall not be subject to the emissions standards until 2031, reporting for 2030 emissions. Any building that has been completed after date of implementation shall comply with emissions standards consistent with zoning approvals, which shall be considered binding and supersede any less stringent emissions standards set out in this Subsection.
      (2)   Upon recommendation from the Environment Department, the Review Board shall propose to the Commission an update to the CO2e emissions standards set forth in Table 1, to ensure the city is achieving its emissions reduction goals.
Table 1: CO2e Emissions Standards by Building Use
Building Use
Emissions Standard (kgCO2e/SF/yr.)
2025-2029
2030-2034
2035-2039
2040-2044
2045-2049
2050-
Building Use
Emissions Standard (kgCO2e/SF/yr.)
2025-2029
2030-2034
2035-2039
2040-2044
2045-2049
2050-
Assembly
7.8
4.6
3.3
2.1
1.1
0
College/university
10.2
5.3
3.8
2.5
1.2
0
Education
3.9
2.4
1.8
1.2
0.6
0
Food sales and service
17.4
10.9
8.0
5.4
2.7
0
Healthcare
15.4
10.0
7.4
4.9
2.4
0
Lodging
5.8
3.7
2.7
1.8
0.9
0
Manufacturing/industrial
23.9
15.3
10.9
6.7
3.2
0
Multi-family housing
4.1
2.4
1.8
1.1
0.6
0
Office
5.3
3.2
2.4
1.6
0.8
0
Retail
7.1
3.4
2.4
1.5
0.7
0
Services
7.5
4.5
3.3
2.2
1.1
0
Storage
5.4
2.8
1.8
1.0
0.4
0
Technology/science
19.2
11.1
7.8
5.1
2.5
0
 
   (L)   Blended emissions standards.
      (1)   Buildings or building portfolios with more than one primary use may comply with a blended CO2e emissions standard; provided, however, that a use may constitute a primary use only if it:
         (a)   Occupies at least 10% of a building’s or building portfolio’s square footage; or
         (b)   Accounts for more than 10% of a building’s or building portfolio’s total annual energy use or CO2e emissions.
      (2)   Building owners using a blended CO2e emissions standard must:
         (a)   Designate the blended standard in annual reports to the Commission; and
         (b)   Provide documentation verifying the qualification of each primary use in annual reports to the Commission for the first year a blended CO2e emissions standard is used and in any subsequent year when the blended emissions standard or primary use(s) change.
   (J)   Energy use exempt from emissions requirements.
      (1)   Building owners may choose to deduct energy used by emergency backup generation/backup power and electrical vehicle supply equipment (“EVSE”) from a building’s total energy use subject to this Subsection’s CO2e emissions standard; provided that:
         (a)   Emergency backup generation/backup power provides energy only to the building or building portfolio;
         (b)   Electrical vehicle supply equipment is separately metered or EVSE is capable of tracking and reporting accurate energy usage, and EVSE meets specifications as defined by the regulations;
         (c)   1.   Building owners annually report:
               a.   Energy used by emergency backup generation/backup power and electrical vehicle supply equipment;
               b.   The date(s), hour(s) and conditions that required the use of emergency backup generation/backup power; and
               c.   Any other information required by the regulations.
            2.   Such reporting shall be subject to the self-certification and third-party verification procedures in division (H) above.
         (d)   In the event that emergency backup generation/backup power or EVSE serve, or have the potential to serve, multiple buildings in a building portfolio, the energy use from such activities shall be allocated for individual buildings in proportion to the square footage of each building;
      (2)   Upon recommendation from the Review Board, the Commission may revise the availability and use of these exemptions or add additional exemptions via the regulations. Energy used by emergency backup generation/backup power may no longer be exempted after 2030, unless otherwise amended in the regulations; provided, however, that such energy usage by a healthcare institution shall continue to be exempted thereafter for so long as the healthcare institution is required to install and maintain emergency backup generation/backup power to ensure reliable operations or as a condition to receiving accreditation.
   (K)   Individual Compliance Schedules.
      (1)   Owners of buildings or building portfolios may apply for an Individual Compliance Schedule as an alternative to the CO2e emissions standard reduction schedule in Table 1. Individual Compliance Schedules must establish declining CO2e emissions standards in five-year increments; provided that such standards must:
         (a)   Decline on a linear or better basis;
         (b)   Reduce emissions 50% by 2030;
         (c)   Reduce emissions 100% by 2050;
         (d)   Use the year that a building was first required to report energy use pursuant to this Subsection as the baseline for emissions; provided, however, that the building’s or building portfolio’s energy use, gross floor area and any relevant emissions factors have been reported to the Commission in accordance with this Subsection or is retroactively reported in accordance with the data verification requirements of this Subsection and the Regulations; or
         (e)   Use a baseline from any year starting in 2005 to the first required reporting year; provided, however, that the building or building portfolio owner provides documentation of energy use, gross floor area and relevant emissions factors by the building or building portfolio for the selected baseline year and the year in which an Individual Compliance Schedule is requested in accordance with the data verification requirements of this Subsection and the Regulation. The Commission may make such information publicly available.
      (2)   A building or building portfolio that failed to comply with previous reporting requirements may use an Individual Compliance Schedule; provided, however, that the necessary data is submitted to the Review Board and any applicable penalties for past non-compliance are paid in full.
      (3)   Individual Compliance Schedules must be approved by the Review Board. Building and building portfolio owners must submit the information required in this Subsection, and any other documentation specified in the Regulations, when requesting an Individual Compliance Schedule from the Review Board. The Review Board may include additional conditions on the approval of Individual Compliance Plans consistent with the Regulations.
   (L)   Hardship Compliance Plans. A building owner may apply to the Review Board for a Hardship Compliance Plan if there are building characteristics or circumstances that present a hardship in complying with the emissions standards in this Section. Such characteristics or circumstances, to be detailed in the regulations, may include historic building designations, affordable housing refinancing timelines, pre-existing long-term energy contracts without reopeners or financial hardship. The application, review process and conditions for Hardship Compliance Plans shall be set forth in the regulations. The Review Board shall have sole discretion in issuing Hardship Compliance Plans; such plans may include alternative timelines for meeting emissions standards, and alternative emissions standards. At its discretion, the Review Board may also allow the use of compliance mechanisms additional to those outlined in division (M) below consistent with achieving the purpose of this Subsection as laid out in division (A) above. The Review Board may include additional conditions on the approval of Hardship Compliance Plans consistent with the regulations, including measures related to Employment Plans, housing stabilization, air quality monitoring, energy cost- and benefit-sharing and disclosure of compliance status and mechanisms to tenants, as appropriate.
   (M)   Additional compliance mechanisms.
      (1)   (a)   Municipal aggregation. Buildings may use electricity obtained through the Boston municipal electricity aggregation program, and have the appropriate Emissions Factor applied to such electricity.
         (b)   Renewable Energy Certificates. Buildings may mitigate CO2e emissions from electricity use by purchasing unbundled Renewable Energy Certificates that:
            1.   Are generated by non-CO2e emitting renewable sources and meet the RPS Class I eligibility criteria outlined in 225 CMR 14.05, as may be amended from time to time;
            2.   Are tracked by the New England Power Pool Generation Information System;
            3.   Are generated in the compliance period in which they are used;
            4.   Are retired within six months after the end of the compliance period in which they are used; and
            5.   Comply with any additional or different requirements set forth in the regulations, as may be amended from time to time. In the event of a conflict between the requirements for Renewable Energy Certificates in this provision and the regulations, the requirements in the regulations shall prevail.
         (c)   Power Purchase Agreements. Buildings may mitigate CO2e emissions from electricity use by entering Power Purchase Agreements for energy generated by renewable non-emitting fuel sources; provided that:
            1.   The energy purchased pursuant to a Power Purchase Agreement is generated during the compliance period for which a building is mitigating CO2e emissions;
            2.   The Renewable Energy Certificates associated with the energy purchased under a Power Purchase Agreement are retired by the building owner within six months after the end of the compliance period in which used; and
            3.   The Power Purchase Agreement complies with any additional or different requirements set forth in the regulations, as may be amended from time to time, including, but not limited to, additionality criteria. In the event of a conflict between the requirements for Power Purchase Agreements in this provision and the regulations, the requirements in the regulations shall prevail.
         (d)   Alternative compliance payments. Buildings may mitigate CO2e emissions from energy use by making alternative compliance payments. The price of an alternative compliance payment shall be based on the average cost per metric ton of CO2e to decarbonize buildings subject to this Subsection. The initial cost of an alternative compliance payment shall be $234 per metric ton of CO2e. The cost of an alternative compliance payment shall be reviewed every five years by the Review Board, with input from the Environment Department, and may be adjusted by the regulations.
      (2)   Upon recommendation from the Review Board, the Commission may revise the availability and use of these compliance mechanisms or add additional compliance mechanisms via the regulations, consistent with the purpose of this Subsection as laid out in division (A) above.
   (N)   Preservation of documents. Building owners shall preserve records and information:
      (1)   Required to be submitted by this Subsection; and/or
      (2)   Submitted pursuant to this Subsection in order to demonstrate compliance with the emissions standard, including, but not limited to, information regarding building uses, emissions factors, compliance mechanisms outlined in division (M) above, Individual Compliance Schedules or Hardship Compliance Plans, for such time as set forth in regulations, and shall make such records available for inspection and audit by the Commission and Review Board upon request.
   (O)   Obligation to request and report information. Where a unit or other space in a building is occupied by a tenant and such unit or space is separately metered by a utility company, the owner of such building may request from such tenant information relating to such tenant’s separately metered energy and water use, purchase of renewable energy or RECs, use of space and operating hours and other information required for Portfolio Manager reporting, for the previous calendar year, and such tenant shall report such information to such owner. The Commission may designate and make available a form to be used to request and report such information. Notwithstanding the foregoing, individual residential tenants shall have no obligation to report energy and water use to building owners.
      (1)   Such owner may request information related to such tenant’s metered energy and water use and other related information for the previous calendar year no earlier than January 1 and no later than January 31 of any year in which the owner is required to report such information.
      (2)   Upon receiving such a request, a tenant shall report information relating to the tenant’s separately metered energy and water use for the previous calendar year no later than February 28 of any year in which the owner is required to report such information.
      (3)   If a tenant vacates a unit or other space before the end of the calendar year without reporting metered energy and water use, such owner may immediately request such information for any period of occupancy relevant to such owner’s obligation to report and the tenant shall respond within 30 days.
      (4)   Failure of any tenant to report the information required in this Subsection does not relieve such owner of the obligation to report pursuant to this Subsection.
      (5)   Where an owner of a building is unable to obtain complete energy and water use data due to the failure of any tenant to report the information required by this Subsection, the owner shall use values or formulas established by the Commission to estimate whole building energy and water use.
   (P)   Disclosure. 
      (1)   The Commission shall make energy, water and emissions information for buildings available to the public on the city website in multiple languages consistent with city language standards no later than October 1 of every year, except for 2022 in which it shall make such information available to the public no later than December 1, 2022. Such disclosure shall include, at a minimum, building identification; energy intensity; CO2e emissions per square foot; emissions compliance status; ENERGY STAR rating, where available; and water consumption per square foot. Such disclosures may include information voluntarily reported to the Commission. Before any such disclosure, the Commission shall subject all data to a quality-assurance/quality-control process.
         (a)   At least 30 days prior to disclosure, the Commission shall provide building owners an opportunity to review the accuracy of information to be disclosed.
         (b)   The Commission shall invite building owners to submit contextual information related to energy and water use in their buildings, and shall disclose contextual information in such form as it shall determine.
         (c)   The Commission shall also, from time to time, publicly report on implementation of, compliance with and overall results from this Subsection; however, the first such report shall be issued no later than December 31, 2022.
      (2)   To the extent available to the Commission, the Commission shall disclose information relevant to air quality, energy cost burdens, fair housing and housing displacement, jobs and other qualitative and quantitative metrics related to Environmental Justice Populations and equitable implementation of this Subsection. Within one year, the Environment Department shall identify appropriate metrics and research mechanisms for:
         (a)   Measuring and collecting this type of information; and
         (b)   Analyzing the impact, if any, of this Subsection on such metrics.
      (3)   The city, in consultation with the Review Board, shall issue annual reports on the Equitable Emissions Investment Fund, including balance of funds, expenditures, funded projects and anticipated impacts relative to greenhouse gas emissions, air quality and local employment. Administrative costs, Review Board compensation and other liabilities incurred against and spent from the Fund shall also be included. These reports will be available for the public on the city website and follow current city language and accessibility guidelines.
   (Q)   Enforcement for failure to comply with this Subsection.
      (1)   Failure to comply with the provisions of this Subsection and regulations issued pursuant to this Subsection shall result in the imposition of penalties by the Review Board. For any failure to comply, the Review Board shall have the authority to: issue a notice of violation subject to penalties if not corrected; and recommend seeking an injunction from a court of competent jurisdiction requiring a building owner or tenant to comply with the requirements of this Subsection; provided, however, this provision shall not apply to residential tenants.
      (2)   Notice of violation. The Review Board shall issue a written notice of violation to any building owner or tenant violating this Subsection by failing to comply with any of the provisions of this Subsection or any Regulation issued pursuant to this Subsection. The notice of violation shall indicate which obligations the building owner or tenant has not fulfilled and provide the building owner or tenant with 30 days to either:
         (a)   Correct the notice of violation by complying with this Subsection and associated regulations; or
         (b)   Send a written request to the Executive Director of the Commission for a hearing by the Review Board for a determination of whether the building owner or tenant violated this Subsection.
      (3)   Request for a hearing. If a building owner or tenant requests a hearing, the Review Board shall hold such hearing within 60 days of the Executive Director of the Commission’s receipt of a written request for hearing. The hearing shall be conducted according to the requirements of M.G.L. Chapter 30A. If the Review Board determines that the building owner or tenant violated this Subsection, that person shall have 30 days from the issuance of a final decision to correct the violation.
      (4)   Failure to comply with notice of violation. If a person who does not request a hearing fails to correct a noticed violation of this Subsection within 30 days after the Review Board issues a written notice of violation, that person shall be deemed to have failed to comply with the notice of violation. If a person who requested a hearing fails to correct a noticed violation of this Subsection within 30 days after the issuance of an adverse decision after a hearing, that person shall be deemed to have failed to comply with the notice of violation. Any person who has failed to comply with a notice of violation shall be subject to a fine as set forth in division (R) below.
      (5)   Injunctive relief.
         (a)   Upon recommendation from the Review Board, the city shall seek an injunction from a court of competent jurisdiction instructing a building owner or tenant who has failed to comply with a notice of violation to comply with this Subsection and regulations issued pursuant to this Subsection; provided, however, this provision shall not apply to residential tenants.
         (b)   The Review Board shall have discretion in deciding whether to recommend seeking an injunction.
      (6)   Fines. All fines and penalties issued under this Subsection may be enforced pursuant to M.G.L. Chapter 40, Section 21D or M.G.L. Chapter 111, Section 31C; provided however, that this permission to utilize the noncriminal disposition procedures of Section 21D shall not deprive the Review Board or the Commission of any other remedy or means of collecting the fine, including by indictment or complaint. For any fines or penalties that remain unpaid 30 days following the receipt of a notice of violation the Commission shall, upon recommendation from the Review Board, take steps to place an assessment on the building owner’s tax bill or a lien on the building pursuant to M.G.L. Chapter 40U, Section 12. The Review Board shall have discretion in deciding whether to recommend placing assessments or liens.
   (R)   Penalties and fines for failure to comply with this Subsection. The fines outlined in this Subsection may be revised by the regulations upon advisement by the Environment Department. References to buildings in this Subsection shall be deemed to include building portfolios. The regulations shall provide a building owner with an opportunity to administratively appeal any such fine pursuant to an appeal mechanism that is consistent with that required by M.G. L. Chapter 40U.
      (1)   Failure to comply with reporting requirements.
         (a)   Each day that a building owner is out of compliance with the reporting requirement of this Subsection, in whole or in part, shall be deemed a separate violation of this Subsection and subject to a fine of:
            1.   Three hundred dollars a day for:
               a.   Non-residential buildings equal to or greater than 35,000 gross square feet or two or more buildings on the same parcel that equal or exceed 100,000 gross square feet; and
               b.   Residential buildings equal to or greater than 35 units or 35,000 gross square feet.
            2.   One hundred fifty dollars a day for:
               a.   Non-residential buildings equal to or greater than 20,000 gross square feet but less than 35,000 gross square feet; and
               b.   Residential buildings equal to or greater than 15 units or 20,000 gross square feet, but less than 35 units or 35,000 gross square feet.
         (b)   No penalty shall be assessed prior to 30 days after receipt of a notice of violation by a building owner or if a building owner corrects the violation within 30 days of receipt of a notice of violation.
      (2)   Failure to comply with emission standards.
         (a)   If a building owner did not comply with the applicable emissions standard in a calendar year, each day of that calendar year and each subsequent day when the violation is not corrected shall be deemed a separate violation of this Subsection and subject to a fine of:
            1.   One thousand dollars a day for:
               a.   Non-residential buildings equal to or greater than 35,000 gross square feet or two or more buildings on the same parcel that equal or exceed 100,000 gross square feet; and
               b.   Residential buildings equal to or greater than 35 units or 35,000 gross square feet.
            2.   Three hundred dollars a day for:
               a.   Non-residential buildings equal to or greater than 20,000 gross square feet but less than 35,000 gross square feet; and
               b.   Residential buildings equal to or greater than 15 units or 20,000 gross square feet, but less than 35 units or 35,000 gross square feet.
         (a)   For any building owner that has failed to report any or all information required by this Subsection to calculate compliance with the emissions standard, the building shall be deemed to be in non-compliance with the emissions standard and subject to the fines in this subclause. A building owner may correct such non-compliance by providing the information required by this Subsection to calculate compliance with the emissions standard and, if necessary, make use of relevant compliance mechanisms to account for any failure to meet the emissions standard. No penalty shall be assessed prior to 30 days after receipt of a notice of violation by a building owner or if a building owner corrects the violation within 30 days of receipt of a notice of violation.
      (3)   Failure to accurately report information.
         (a)   In the event that third-party verification of information reported by a building owner identifies a discrepancy with a building owner’s self-certified reporting, and such discrepancy is not reconciled pursuant to a process to be outlined by regulation, such discrepancy shall be deemed a violation of this Subsection and subject to a fine between $1,000 and $5,000. The Review Board shall, in its sole discretion, determine the fine taking into account whether the failure to accurately report information impacted a determination of compliance with an emissions standard. An owner may petition the Review Board for a reduction in such a penalty in accordance with the conditions outlined in the regulations, which shall include circumstances in which a third-party verification was filed by a prior owner. The Review Board may, in its discretion, reduce such penalty through the process as laid out in the regulations.
         (b)   In the event that a failure to accurately report information resulted in inaccurately determining that a building owner complied with an emissions standard, the penalties from division (R)(2) above shall apply.
      (4)   Penalty reductions and waivers. The Review Board may grant penalty reductions or waivers. Details regarding petitions, review process and conditions for penalty reductions or waivers may be set forth in the regulations. In determining whether to grant any reduction in penalty for failure to comply with emission standards, the Review Board shall consider an owner’s plans for bringing a Building into full compliance and whether there are Building characteristics or circumstances that present a hardship in complying with the emissions standards in this Section. Such characteristics or circumstances could include historic building designations, affordable housing or financial hardship. The Review Board shall have sole discretion in granting penalty reductions or waivers.
      (5)   Applicability. This division (R) shall not apply to the city or any city building.
   (S)   Review Board. 
      (1)   There is established a nine member independent Review Board appointed by the Mayor and approved by the Boston City Council. Members of the Review Board shall have expertise in environmental justice, affordable housing, labor and workers’ rights, workforce development, building engineering and energy, real estate development and management, public health and hospitals, architecture and historic preservation or any combination thereof.
      (2)   Two-thirds of the members of the Review Board shall be nominated by community- based organizations, and all members shall be current residents of the city. The Chair of the Boston City Council’s Environment, Resiliency and Parks Committee, or his or her designee, shall serve as a member of the Review Board. The Regulations shall designate community groups and organizations to nominate individuals to serve on the Review Board, subject to the Mayor’s appointment and the Council’s approval. Members of the Review Board for whom participation is not part of a full- or part-time job may request compensation for their service on the Review Board. The regulations shall establish a rate of compensation per meeting and a cumulative compensation per year.
      (3)   Members shall serve for a term of three years. As the term of any member expires, their successor, or their renewal, shall be nominated by the organizations identified in the regulations and appointed by the Mayor, subject to Council approval. Vacancies in the Review Board shall be filled by the Mayor, subject to Council approval for the unexpired term. Every three years, the Mayor shall designate a member to be the Chair of the Review Board.
      (4)   The Review Board shall meet a minimum of four times per year and may meet more often as it deems necessary to fulfill its obligations under this Subsection.
      (5)   Working groups may be convened to study or make recommendations for regulations changes or sector-specific criteria for Hardship Compliance Plans, subject to the approval of the Review Board. A working group will be convened to address the specific needs of healthcare institutions connected to district energy systems. Working groups may include individuals not on the Review Board, including representatives of appropriate federal, commonwealth and local Agencies and authorities, sector-specific professionals, financial institution representatives, energy providers and utility representatives, among others.
      (6)   The Review Board may draft regulation revisions and may issue guidance to the Environment Department to ensure equitable implementation of this Subsection.
      (7)   Funding, capacity-building and staff support shall be provided to the Review Board by the Environment Department. The Environment Department shall also be responsible for annual disclosure and policy administration and carry out enforcement actions as directed by the Review Board. The Review Board may delegate responsibilities, such as, but not limited to, the approval of requests for blended emissions standards and Individual Compliance Schedules, to the Environment Department.
   (T)   Advisory Committee. Any Advisory Committee previously established pursuant to this Subsection shall be disbanded.
   (U)   Review and power to suspend. 
      (1)   The Commission shall direct the Environment Department to review the implementation of this Subsection every five years. As part of such review, the Environment Department shall hold at least one public hearing and solicit comments from the public. Such request for comments shall include a request for information regarding how, if at all, implementation of this Subsection has impacted air quality, energy cost burdens and other qualitative and quantitative metrics related to Environmental Justice Populations and equitable implementation of this Subsection; to the extent such information is available from other City Departments, the Environment Department shall take all reasonable steps to collect and analyze such information.
      (2)   The Commission may suspend all or part of the requirements of this Subsection upon a written finding from the Environment Department that a significant obstacle interferes with implementation or that implementation has a significant negative effect on energy cost burdens, equitable access to housing or other factors set forth in the regulations. The Commission may lift such suspension upon a written finding from the Environment Department that the obstacle has been removed or the negative effect addressed. The Commission shall suspend the requirements of this Subsection as necessary to ensure that at least 90 days passes between the promulgation of regulations and any reporting deadline.
      (3)   Notwithstanding the foregoing, the Environment Department may recommend revisions to the regulations as needed.
   (V)   Regulatory authority. In accordance with recommendations from the Environment Department, the Commission shall promulgate rules and regulations, including amending the existing Regulations, necessary to implement and enforce this Subsection, pursuant to M.G.L. Chapter 30A.
   (W)   Applicability. If any provision of this Subsection imposes greater restrictions or obligations than those imposed by any other general law, special law, regulation, rule, ordinance, by-law, order or policy, then the provisions of this Subsection control.
   (X)   Implementation. The provisions of this Subsection are effective immediately upon passage.
   (Y)   Notice. Within three months of the adoption of this Subsection, notification concerning reporting and disclosure procedures shall be provided to owners subject to the requirements of this Subsection. This notice, and any other notice required by this Subsection, including notices of violation, shall be delivered to the contact information in the assessor’s database unless an owner provides alternative contact information to the Commission.
(CBC 1985 7-2.2; Ord. 2013 c. 5; Ord. 2014 c. 2; Ord. 2021 c. 13 § 1)
7-2.3   Diesel Emissions Reductions.
   (A)   Purpose. 
      (1)   The purpose of this Section is to minimize the public health risks associated with exposure to diesel particulate emissions by establishing requirements relating to the use of ultra-low sulfur diesel fuel and diesel emissions control technology by non-road and on-road diesel vehicles used in city projects and services, and by city owned, leased or operated diesel vehicles.
      (2)   It is further the purpose of this Section to protect the public health and the environment by reducing vehicular emissions and conserving fuel.
   (B)   Definitions. For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
      APCC. The Air Pollution Control Commission.
      CARB. The California Air Resources Board or any successor Agency.
      CONSUMER PRICE INDEX. The annual average Consumer Price Index (“CPI-U”) as determined by the United States Bureau of Labor Statistics.
      DIESEL EQUIPMENT. Any diesel-powered equipment greater than 50 brake- horsepower.
      EPA. The United States Environmental Protection Agency or any successor Agency.
      NON-ROAD VEHICLE. A vehicle that is powered by a non-road diesel engine 50 brake- horsepower or greater and that is not a motor vehicle or a vehicle used solely for competition, which shall include, but not be limited to, backhoes, bulldozers, compressors, cranes, excavators, generators and similar equipment; NON-ROAD VEHICLES do not include locomotives or marine vessels.
      ON-ROAD VEHICLE. Any self-propelled vehicle designed for transporting persons or property on a street or highway that operates on diesel fuel and that has a gross vehicle weight rating of 14,000 pounds or more.
      ULTRA LOW SULFUR DIESEL FUEL. means diesel fuel that has a sulfur content of no more than 15 parts per million.
      VERIFIED OR CERTIFIED RETROFIT TECHNOLOGY. Diesel emissions control technology that appears on the Verified Retrofit Technologies List of EPA or CARB or any successor list or that has been certified by its manufacturer as meeting or exceeding emissions reductions provided by emission control technology on such a list, the adequacy of such certification being subject to review by the city.
   (C)   Idling.
      (1)   It shall be the duty of every Police Officer, every official or employee of the Transportation Department assigned the responsibilities provided in Subsection 6-6.2, and every Official or employee of the Air Pollution Control Commission who takes cognizance of a violation of any provision of M.G.L. Chapter 90, Sections 16A and 16B, as now or hereinafter amended, or any regulation, as now or hereinafter amended, promulgated by the Registry of Motor Vehicles pursuant to M.G.L. Chapter 90, Section 16B, to issue a written warning or to issue a written violation and to give the offender a notice to appear before the Parking Clerk, during regular Office hours, not later than 21 days after the date of the violation. The offender has the right to appeal a violation to the Parking Clerk, and that such hearings before the Parking Clerk will be conducted pursuant to M.G.L. Chapter 30A.
      (2)   (a)   The fine for any violation of the provisions of M.G.L. Chapter 90, Section 16A, as now or hereinafter amended, shall be $100 for the first offense, and $500 for each succeeding offense.
         (b)   The fine for any violation of the provisions of M.G.L. Chapter 90, Section 16B and 540 CMR 27.00 et seq., as now or herein after amended, shall be $100 for the first offense, and $500 for each succeeding offense.
      (3)   Any violation issued pursuant to this Section, and any appeal of such violation to the Office of the Parking Clerk, shall be done in accordance with the procedures set forth in M.G.L. Chapter 90, Section 20A½.
   (D)   City vehicles. 
      (1)   All on-road vehicles, non-road vehicles and diesel equipment owned, leased or operated by the city shall:
         (a)   Be powered by ultra-low-sulfur diesel fuel; and
         (b)   Meet EPA emissions standards for new vehicles in effect in 2007 or later for their respective classes of vehicle or have verified or certified retrofit technology that removes at least 20% of particulates from the exhaust stream.
      (2)   Notwithstanding the requirements of division (D)(1) above, the Commissioner of Public Works, in consultation with the Air Pollution Control Commission, may determine, if supported by data concerning annual vehicle usage, fuel consumption and emission rates, that a greater net reduction in diesel emissions can be achieved at a lesser cost to the city by withholding the installation of diesel emission control equipment from certain vehicles and installing higher-yield diesel emission control equipment on other vehicles. In such cases, equipment installation shall follow said determination. Vehicles receiving higher-yield emission control equipment and vehicles receiving none on this basis shall be specifically identified in the annual report required by division (F)(2) below.
      (3)   All on-road vehicles, non-road vehicles and diesel equipment owned, leased or operated by the city shall meet this requirement set forth in this division (D) by December 31, 2015.
      (4)   Exemptions: The following are exempt from the requirements of this division (D):
         (a)   Emergency vehicles, including, but not limited to, vehicles operated by the Boston Police Department, Boston Fire Department and Boston Emergency Medical Services;
         (b)   On-road vehicles, non-road vehicles and diesel equipment used solely for snow removal;
         (c)   On-road vehicles, non-road vehicles and diesel equipment in operation for fewer than 100 hours a year;
         (d)   On-road vehicles, non-road vehicles and diesel equipment to be sold, surplused or removed from service before December 31, 2015, as determined by the Director of Central Fleet Management; and
         (e)   On-road vehicles, non-road vehicles and diesel equipment identified in a cost-effectiveness determination, as specified in division (D)(2) above.
   (E)   Contract requirements. All contracts entered into by the city for construction projects and other projects and services having a total estimated cost in excess of $2,000,000 adjusted annually to reflect changes in the Consumer Price Index, shall require that on-road vehicles, non-road vehicles and diesel equipment used to fulfill the contract or any subcontracts:
      (1)   Be powered by ultra-low-sulfur diesel fuel; and
      (2)   Meet EPA emissions standards for new vehicles and equipment in effect in 2007 or later for their respective classes of vehicle or equipment; or have verified or certified retrofit technology that removes a significant percentage of particulates from the exhaust stream, as follows.
         (a)   1.   For contracts entered into on or after July 1, 2015 and before July 1, 2016, verified or certified retrofit technology shall be present on at least one half of all on-road vehicles, non-road vehicles and diesel equipment used to fulfill the contract and requiring retrofit technology, and shall remove at least 20% of particulates from the exhaust stream.
            2.   Exemptions: The following on-road vehicles, non-road vehicles and diesel equipment are exempt from the requirements relevant to contracts entered into on or after July 1, 2015 and before July 1, 2016 as provided in division (E)(2)(a)1. above:
               a.   On-road vehicles, non-road vehicles and diesel equipment, which are not owned by the contractor and on site for fewer than 30 days during the life of the project, or any lesser period of time as determined by the APCC pursuant to division (F)(4);
               b.   On-road vehicles, non-road vehicles and diesel equipment used solely for snow removal; and
               c.   On-road vehicles used solely for the delivery of products or goods to the city.
         (b)   1.   For contracts entered into on or after July 1, 2016 and before July 1, 2017, verified or certified retrofit technology shall be present on all on-road vehicles, non-road vehicles and diesel equipment used to fulfill the contract and requiring retrofit technology.
            2.   Exemptions: The following on-road vehicles, non-road vehicles and diesel equipment are exempt from the requirements relevant to contracts entered on or after July 1, 2016 and before July 1, 2017 as provided in division (E)(2)(b)1. above:
               a.   On-road vehicles, non- road vehicles and diesel equipment, which are not owned by the contractor and on site for fewer than 30 days during the life of the project, or any lesser period of time as determined by the APCC pursuant to division (F)(4) below;
               b.   On-road vehicles, non-road vehicles and diesel equipment used solely for snow removal; and
               c.   On-road vehicles used solely for the delivery of products or goods to the city.
         (c)   For contracts entered into on or after July 1, 2017, verified or certified retrofit technology:
            1.   Shall, if available for the vehicle or equipment, remove at least 85% of particulates from the exhaust stream;
            2.   If equipment required by division (E)(2)(c)1. above is not available, the verified or certified retrofit technology shall remove the highest possible percentage of particulates from the exhaust stream. All equipment within a five-point range shall be considered equivalent;
            3.   Notwithstanding the requirements of divisions (E)(2)(c)1. and 2. above, no retrofit technology shall be required that reduces the safety of operation for any vehicle or equipment, as determined by the requirements of the United States Occupational Safety and Health Administration or other similarly recognized national organization; and
            4.   Exemptions: The following on-road vehicles, non-road vehicles and diesel equipment are exempt from the requirements relevant to contracts entered on or after July 1, 2017 as provided in division (E)(2)(c)1. through 3. above:
               a.   On-road vehicles, non- road vehicles and diesel equipment retrofit before July 1, 2017, to meet the requirements of division (E)(2)(b)1 above;
               b.   On-road vehicles, non- road vehicles and diesel equipment, which are not owned by the contractor and on site for fewer than 30 days during the life of the project, or any lesser period of time as determined by the APCC pursuant to division (F)(4) below;
               c.   On-road vehicles, non- road vehicles and diesel equipment used solely for snow removal; and
               d.   On-road vehicles used solely for the delivery of products or goods to the city.
      (3)   Compliance with these requirements shall be deemed a cost of doing business and shall be considered incidental to the cost of the contract.
   (F)   Implementation. The Air Pollution Control Commission shall:
      (1)   Issue guidance to all city Departments and Agencies for implementing the requirements of this Section; obtaining documentation of compliance; and providing application procedures and deadlines about available local, commonwealth and federal public incentive programs to retrofit, re-power or replace older, more polluting diesel equipment;
      (2)   Issue an annual report on the overall progress of implementation to the Mayor and City Council;
      (3)   Upon request of a contracting Agency or as determined by the Commission, review the adequacy of manufacturer’s certification for retrofit technology;
      (4)   From time to time, after public hearing, review and change the length of time that diesel vehicles or equipment not owned by contractors may remain on project sites without having emissions reduction or retrofit technology. Any such change by the Commission shall apply to all contracts described in division (E) above and shall take effect in the following fiscal year;
      (5)   Every five years, review and, as appropriate, recommend to the Mayor changes in requirements for diesel emissions control equipment for all city and contract vehicles and equipment subject to this Section; and
      (6)   Notwithstanding other divisions of this Section, the Commission may participate in or offer grant programs to assist owners of diesel vehicles and equipment in reducing emissions from their vehicles.
   (G)   Enforcement and sanctions. Upon request, the Commission shall provide assistance to the contracting Agency in determining non-compliance with the ordinance. In the event of non-compliance, the contracting Agency shall immediately utilize all remedies available under the contract to address and halt the noncompliance, including, where appropriate, termination of the contract.
   (H)   Applicability. If any provision of this Section imposes greater restrictions or obligations than those imposed by any other general law, special law, regulation, rule, ordinance, by-law, order or policy then the provisions of this Section control. Nothing in this Section shall be construed to restrict or abrogate any of the duties, powers or responsibilities of any official or employee of the city existing prior to the enactment of this Section.
   (I)   Severability. If any provision of this Section is to be held invalid by a court of competent jurisdiction then such provision should be considered separately and apart from the remaining provisions, which shall remain in full force and effect.
   (J)   Date of effectiveness. The provisions of this Section are effective immediately upon passage.
(CBC 1985 7-2.3; Ord. 2015 c. 5)
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