The legislation would give more rights to property owners whose land is located in areas designated as priority habitat to imperiled species.
Proposed legislation that critics say would harm endangered species and supporters say would help landowners is facing possible extinction if lawmakers don't take action by July 31, the end of the current legislative session.
The bills have pitted environmentalists against private and public landowners, and legislators against the endangered species law they enacted more than 20 years ago. If the bills die on the vine this legislative session, a local lawmaker has vowed to revisit the contentious issue when the Legislature reconvenes in January.
Senate Bill 1854 and House Bill 4208, both supported by the Legislature's Joint Committee on Environment, Natural Resources and Agriculture, would require strict adherence to the 1990 law that established the Massachusetts Endangered Species Act, or MESA. Proponents say the legislation would restore appellate rights to priority habitat landowners whose property is subject to review and restrictions by the state's Natural Heritage and Endangered Species Program, a key conservation tool of the Massachusetts Division of Fisheries and Wildlife.
The portion of MESA designed to give property owners appellate and other rights — including the right to petition the state for compensation if land is taken or barred from future development — was never implemented by the Natural Heritage and Endangered Species Program despite its inclusion in MESA. "The bill simply compels Natural Heritage to follow the existing law," said Sen. Gale D. Candaras, D-Wilbraham, the sponsor of S.B. 1854.
The legislation, according to backers, would make MassWildlife's species protection program more accountable to property owners and lawmakers, affirming the original bundle of landowners' rights provided by MESA. But opponents of any proposals that might weaken MESA and the state's ability to protect threatened or endangered species say the pending legislation is a wrong-headed approach to addressing issues with the Natural Heritage program, and they're urging lawmakers to reject legislation that would do away with the "priority habitat" model currently used.
"They just don't realize what they're doing," said Joseph S. Larson, a member of the state Fisheries and Wildlife Board, the body that sets policy for MassWildlife. Larson said the legislation, as drafted, would essentially nullify the various land mitigation tools used by Natural Heritage when dealing with priority habitat properties. "It would eliminate all of that," he said, undermining MESA and forcing state wildlife officials to implement costly requirements that are more restrictive for landowners.
The priority habitat designation was created by MassWildlife as a more flexible alternative to the "significant habitat" designation, a stricter protection model included in the 1990 MESA law. Priority habitat, for example, allows property owners to conduct on- and off-site land mitigation or to fund research into endangered species as possible ways for proposed projects to proceed in sensitive areas. Supporters of the model say it enables communities, project proponents, regulators and technical experts to work together to protect at-risk plants and animals while simultaneously fostering growth and development.
However, the proposed legislation would allow priority habitat landowners to legally challenge Natural Heritage-imposed restrictions or conditions in Superior Court. The significant habitat designation created by MESA gave landowners the right to appeal and seek compensation for land taken out of use by Natural Heritage, but that model was never implemented, according to state environmental officials, who view significant habitat as "a tool of last resort."
The significant habitat model would prevent most types of development on land with special management or protection considerations, according to environmental officials. Current case law supports MassWildlife's regulatory authority to enforce MESA provisions, with several legal rulings upholding the agency's right to use the more flexible priority habitat model as a separate-but-equal screening tool to significant habitat.
Joseph Larson
Larson said the significant habitat provision was simply too expensive to implement and would have been particularly burdensome for property owners. "It was almost tantamount to a taking of land. That portion of the law has never been used because it's such a Draconian approach," said Larson, an endangered species specialist with a Ph.D. in zoology. He and all six of his Fisheries and Wildlife Board colleagues signed a June 26 letter urging lawmakers to vote against S.B. 1854 and its redrafted version, H.B. 4208.
Bill backers argue that MassWildlife overstepped its authority by creating the priority habitat category for endangered, threatened and special-concern species. Those are the commonwealth's three categories for imperiled plant and animal populations, with "endangered" representing species most at risk of extinction. Priority habitat doesn't include due process or compensation rights for property owners affected by regulatory land takings, but instead enables landowners to fund habitat protection efforts and other land bank mitigation options as ways to overcome development obstacles.
In theory and law, but not in practice, the director of MassWildlife has authority to identify and designate significant habitat for threatened and endangered species statewide, but not so-called priority habitat. MESA requires the significant habitat designation to be reviewed annually, and property owners seeking to alter or develop land must receive permission from the director before going forward.
The Senate bill sponsored by Candaras aims to enforce the significant habitat model. The bill was the subject of a favorable report last month by the Joint Committee on Environment, Natural Resources and Agriculture, which sent the measure to the House of Representatives. A House redraft, H.B. 4208, is now pending before the Ways and Means Committee.
The House bill hews closely to recommendations made by state Inspector General Gregory W. Sullivan, whose office launched an investigation after receiving "numerous complaints" from property owners about Natural Heritage preventing or delaying projects. State environmental officials emphasize that roughly 77 perecent of proposed developments proceed as originally planned, while about 20 percent require conditions or restrictions. Only around 3 percent require MESA permits.
Sullivan, in a May 24 letter to House Speaker Robert DeLeo, suggested that the Legislature consider implementing a notification and public hearing process for priority habitat landowners, who presently don't receive notice about their land's restricted status. That status also doesn't appear on property deeds when land is bought or sold. Roughly 400,000 acres of the state's 5 million acres have been designated as priority habitat, and it's up to landowners and project proponents to know if their developments fall under the designation.
The Republican file photoGale Candaras
With the proposed legislation unlikely to remain intact beyond July 31, Candaras has vowed to reintroduce a Senate bill early next year. "I don't think that any of us who support this legislation can give up," Candaras said. She said she's been "struggling with the Natural Heritage issue" for more than two years, citing her strong desire to see property owners receive their due process rights under the law.
Opponents of the proposed legislation include the Patrick administration and the state's top environmental officer. The Conservation Law Foundation, the Massachusetts Audubon Society, the Nature Conservancy in Massachusetts, the Sierra Club, and numerous other conservation and sportsmen's groups, oppose the legislation, which they claim would undo more than two decades of progress in protecting the commonwealth's most imperiled plants and animals.
Priority habitat is a screening tool for the state to flag projects that may harm at-risk species if they "go forward unchecked," Jennifer Ryan, the legislative director of the Massachusetts Audubon Society, testified at a Statehouse hearing last summer. The overall goal, environmental officials say, is to protect species that face significant degradation or extinction while simultaneously reviewing projects in areas that could impact those species.
"It's not a land grab," Ryan said in a recent interview with The Republican, batting down allegations that Natural Heritage is in the business of taking people's land or severely restricting its use. According to Ryan, only around 3 percent of projects require MESA permitting, with the vast majority of development proposals proceeding with conditions or as originally envisioned.
Critics, however, argue that those "conditions," which may require a landowner to remove a certain percentage of land from development or donate money to species or habitat preservation efforts elsewhere, are a form of extortion and violate property owners' constitutional rights.
"It's about striking a balance," state Secretary of Energy and Environmental Affairs Richard K. Sullivan Jr. said, adding that shortcomings in the project review process need to be addressed. But the proposed legislation "goes too far," he said.
Sullivan said he understands the frustration of local officials and property owners who bump up against MESA regulations. He said the Natural Heritage program can be improved by giving notification to priority habitat landowners and providing them with clearer land mitigation guidelines.
According to conservation and environmental officials, the legislation, as proposed, would essentially force MassWildlife to implement a series of costly procedural requirements for every parcel of land currently mapped as priority habitat. For example, they say, MassWildlife would have to notify every affected property owner by certified mail, establish new boundary surveys for those properties, then conduct public hearings for each parcel.
Richard Sullivan Jr.
The proposals being considered by the Legislature would result in a number of "unintended consequences" that are both costly and cumbersome to implement, according to Sullivan. "We can craft a much better bill that strikes a balance," he said, adding that conservationists, lawmakers and state environmental officials should regroup to fine tune the regulations.
Ryan, meanwhile, said MassAudubon is working fast and hard to sway lawmakers to reject the legislation before the session ends July 31. "We're working against the clock," she said.
MassAudubon is not alone in the fight: More than 70 conservation groups have lined up against the legislation, which they believe would dismantle Natural Heritage's priority habitat system for protecting imperiled plants and animals.
"We have representation across the state opposed to it," Ryan said.
James Miller, media relations manager for the Nature Conservancy in Massachusetts, believes the state's Natural Heritage program is a "very important" tool to protect at-risk plants and animals. "We are very supportive of it," he said.
Steve Long, director of government relations for the Nature Conservancy, said the proposed legislation would "wipe all priority habitat off the map" and require MassWildlife to redesignate all priority parcels. That, Long said, would be an undertaking that's far too costly, if not impossible, to implement within the time frame stipulated by lawmakers in the bill.
File photo | The RepublicanThe Eastern Box Turtle "a species of 'special concern,' or the least threatened category of plants and animals" on land in Hampden owned by Springfield resident Bill Pepin would require certain mitigation efforts before any construction occurs.
Long and others say the established practice of using the priority habitat model is based on very complicated land-mapping techniques that rely on the best scientific data and methods available for detecting and delineating endangered species and their habitats. The mitigation aspect to priority habitat development is aimed at allowing projects to proceed in harmony with the environment, according to environmental officials.
Critics of Natural Heritage view "mitigation banking" and other quid-pro-quo arrangements as state-sanctioned shakedowns that force property owners to part with money or land in order for projects to advance. Springfield resident Bill Pepin said he wanted to build two homes on 36 acres in rural Hampden, but Natural Heritage officials told him the possible existence of the Eastern Box Turtle — a species of "special concern," or the least threatened category of plants and animals — on the land would require certain mitigation efforts before any construction occurs.
Pepin, who sued in Hampden Superior Court and lost, claims his land was mapped by Natural Heritage as priority habitat in October 2006, shortly after he began the process of buying the large wooded parcel on Hampden's South Road. He said the priority designation was made despite any proof of turtles living on the land. "They did not find a damn thing," he said of the Natural Heritage scientists who searched the property.
Pepin said the priority designation allows Natural Heritage to impose land-use restrictions on his property while denying him due process rights granted under the significant habitat model that MassWildlife mothballed in favor of the priority habitat model. "They deliberately created a regulation to circumvent the law created by the Legislature," he said.
Pepin has a lawsuit pending against MassWildlife in state Appeals Court.