One recent afternoon, I looked out my window to see a box turtle making its slow, steady progress from the side yard to the woods out back. We all rushed out for a better look, creeping closer and closer until the poor turtle tucked himself into his shell, signaling that he'd had enough of this unwelcome celebrity.
My beleaguered backyard turtle could have a lot more to worry about than overenthusiastic gawkers if a bill now proposed at the Statehouse passes, according to a long list of environmental and sportsmen's groups. The bill, they warn, would gut the commonwealth's system for protecting hundreds of endangered and threatened species—from box turtles to bald eagles, salamanders to whales, not to mention numerous trees, flowers and other plants—from the threats posed by development.
And while the bill springs from landowners' complaints that the state's environmental regulations are too restrictive and cumbersome, opponents contend that if it passes it would, in fact, hurt property owners, replacing a workable and fair, if imperfect, system with a bureaucratic nightmare for all parties.
At deadline, it looked as if the bill would not come up for a vote before the fast-approaching end of the legislative session. But conservation groups expect to face the same battle again in the next session; a group of legislators—mainly from Western Mass.—has been pushing to reform the state's endangered species program for years, spurred on by constituent complaints that the state runs roughshod over property rights, shutting down development that would create jobs and new tax revenue.
Those complaints don't match the reality, say defenders of the program, who note that the great majority of projects reviewed by the state proceed unaltered. "These are very important programs that have protected habitats and been absolutely successful"—and on a shoestring budget, no less, said Jim Wallace, executive director of the Gun Owners' Action League, a big supporter of conservation efforts. It would be a grave mistake, Wallace continued, "to throw out decades' worth of work simply because a few people have a problem with how they have to apply for permits."
The bill—House Bill 4208, "An act relative to land taking regulations"—proposes major changes to the state Division of Fisheries and Wildlife's Natural Habitat and Endangered Species Program. NHESP reviews development projects to make sure they're in compliance with the Mass. Endangered Species Act, which lists 432 plant and animal species for protection. MESA forbids the "taking" of those species, meaning an activity that causes harm, such as hunting, trapping or disrupting their feeding, breeding or migratory activities, or the disruption of their habitat.
The state draws, and regularly updates, maps identifying core habitats across the state, based on sightings of state-protected species. Landowners whose properties appear on that map must submit plans for review under NHESP before they can build there. The state agency can allow the project to go through as proposed, or can require modifications to protect affected species.
In cases in which NHESP determines that habitat loss cannot be avoided even through modifications, the developer must apply for a permit, which can contain conditions. In some cases, those conditions will allow some habitat destruction if the developer takes mitigating steps—for instance, accepting a conservation restriction that forbids future development (NHESP's preference), agreeing to preserve habitat on a different piece of property, or contributing money to a conservation organization or campaign of the landowner's choice.
Very few cases ever make it to the permit stage. According to NHESP, in fiscal 2011, 76.5 percent of developments reviewed by the program were allowed to proceed with no modifications or conditions. The rest require some changes—reducing the number of houses proposed in a development, resiting certain buildings to avoid species habitats. Only 3.1 percent of proposed projects end up requiring permits.
There are several ways property owners can determine if their land is on the map. For years, a NHESP-created atlas has been available at public libraries, municipal offices and other government agencies. In 2005, new regulations required the program to provide the maps to municipal planning boards and conservation commissions and through the state's GIS database. In 2010, a 60-day public comment period was created before new maps could go into effect.
The proposed law, which is sponsored by state Sen. Gale Candaras (D-Wilbraham), would require Fisheries and Wildlife to apply a new and extensive set of requirements to all properties designated as "priority" habitats, defined as the geographic extent of the habitat of a state-protected species. For each parcel, the state would have to survey the property and conduct a public hearing. Every land owner with property in the priority map would be notified by certified mail, and the habitat designation would be recorded on the deed of each parcel.
The bill would give DFW until Feb. 1, 2013, to meet those requirements. If the division failed to meet that deadline, the parcels would not be subject to any review from the division.
In a letter to fellow legislators urging them to support the bill, Candaras cast the proposal as environmentally friendly. In light of a recognition of "the importance of being good stewards of the environment," she wrote, the sponsors "made sure not to impact endangered species or protected land. The bill only addresses well-documented due process deficiencies within the current, so called 'priority habitat' designation and permitting processes."
In addition, she wrote, the proposed law addresses a recommendation by the state's Inspector General that MESA be amended to "clarify the rights of property owners." The existing system, in Candaras' words, is "broken and unfair" and denies property owners their rights.
Supporters of NHESP say such complaints are overstated. The great majority of development projects reviewed by NHESP—more than three-quarters—proceed with no alterations; indeed, some critics contend that the program allows too many developments that hurt endangered species.
NHESP backers also say that complaints that the program is unresponsive to landowners are outdated, noting that MESA regulations have been updated twice over the past seven years, after public hearings that brought together many stakeholders. In a June 26 letter to legislators, the Division of Fisheries and Wildlife's Fisheries and Wildlife Board wrote that it "has employed a thoughtful, collaborative and transparent process in overseeing the Division's establishment of the MESA regulatory framework. Consistent with the intent of MESA, a hallmark of this approach has been to proactively seek the input of both the development and environmental communities. The Board has a documented history of approving a series of substantive modifications to the MESA regulations in response to carefully considering new scientific information and the divergent views from both the development and environmental communities." That includes "major amendments" made to MESA regulations in 2005 and again in 2010, with input from groups as diverse as Mass Audubon and NAIOP Massachusetts, an association of commercial developers.
But to land owners who've had to alter their plans or pay for mitigation efforts, or who simply object to the idea of the state telling them what they can and cannot do on their property, the program is a scourge. A group calling itself "Victims of Natural Heritage" has even put together a website that calls NHESP a "rogue" state agency that "extorts" money from developers and poses a threat to job creation, individual property rights and the U.S. Constitution.
Leading that effort is Bill Pepin, a Springfield resident and general manager of the local NBC affiliate, Channel 22. Pepin and his wife have been engaged in a years-long battle with NHESP over 36 acres of land they own in Hampden, where they plan to build their retirement home and a second house that they will sell. (See "Fighting for Habitat," Nov. 26, 2009, valleyadvocate.com.) The Pepins challenged the state's designating their land as a habitat for the Eastern box turtle, taking their case to court after losing two internal NHESP appeals.
"My wife and I are environmental people," Bill Pepin told the Advocate at the time. "One of the reasons we wanted to buy this property is, we enjoy nature. We're not those people who want to blacktop the commonwealth." But NHESP, he said, was making unreasonable demands.
Pepin brought his concerns to his local legislators, who were happy to take up the cause. State Rep. Cheryl Coakley-Rivera (D-Springfield) filed a bill—known colloquially as "the Pepin Bill"— that would have virtually stripped NHESP of all its powers. That bill has wide support among Western Mass. legislators, including a number who generally receive high marks for their pro-environmental records. Critics (including, privately, some within the Statehouse) have questioned whether legislative backers of the bill are motivated by the fact that the man behind the effort just happens to manage the top-rated news station in the region—something Pepin and lawmakers both denied. (See "Who's Bill Pepin?" Nov. 26, 2009)
The original bill met with fierce resistance from conservation groups. After intense lobbying from both sides, the bill was revised. But environmental groups say the new version simply replaces one devastating proposal with another equally damaging one.
Last month, representatives from 72 conservation and sportsmen's groups—among them Mass Audubon, the Nature Conservancy, Clean Water Action, the Mass. Sierra Cub, GOAL and the Mass. Sportsmen's Council—sent a letter to legislators urging them not to pass the Candaras bill, warning that it would "result in the effective repeal" of the Massachusetts Endangered Species Act.
As opponents describe it, the bill sets Fisheries and Wildlife up to fail. Jen Ryan, Mass Audubon's legislative director, told the Advocate that the bill would impose impossible-to-meet requirements on NHESP, requirements which could certainly not be satisfied by a Feb. 1 deadline. To individually notify each property owner with land on a habitat map would require a central database of all property in the state—something that does not exist. Nor could Fisheries and Wildlife, which has seen its funding cut steadily in recent years, hold all the necessary hearings and have all the deeds recorded in time, she added: "That just wouldn't work."
Furthermore, Ryan and others argue, the notification requirements proposed for NHESP are far more stringent than those imposed on other government agencies. For instance, the Department of Environmental Protection is not required to inform landowners if their properties have designated wetlands, and municipalities do not have to inform owners about relevant zoning designations.
In its letter to legislators, the Fisheries and Wildlife Board wrote, "Some have characterized this legislation as providing a simple notice to property owners of their inclusion in the MESA regulatory maps." But the impossible demands it makes on the underfunded division in such a short period of time all but ensure that, come the Feb. 1 deadline, the existing protections will end.
"Because it would take years and a major expenditure of public funds to make progress on this mandate, there will be no regulatory protection for the habitats of listed species for the foreseeable future," board members wrote. "This regulatory vacuum will, in turn, create uncertainty for property owners and developers. In the absence of advance information on the potential for their project to have an adverse impact on a state-listed species, they will be left at risk of potential fines and criminal prosecution."
Critics of the bill also take issue with a provision that would allow an aggrieved property owner to file a lawsuit against DFW at any time during the NHESP review process, even before the division issues any decision in the matter. They argue that this runs counter to established legal process, which requires an applicant to first exhaust all administrative remedies—such as NHESP's appeals process—before going to court. That, the conservation groups wrote to legislators, would "[put] DFW on different footing than all other agencies in the Commonwealth with respect to judicial review of agency actions or decision-making and [would] inject additional uncertainty, delays and unnecessary conflict in the project review process."
Candaras, in her letter seeking support of the bill, dismissed the concerns of the conservation groups: "Due process is one of the most important underpinnings of our democracy. It is unfortunate that the extreme rhetoric used in the environmentalists' letter casts fundamental rights as 'burdensome.'"
The bill is co-sponsored by a bipartisan group of 12 legislators, 11 of them from the Valley: Sens. Candaras, Michael Knapik (R-Westfield) and Jim Welch (D-West Springfield) and Reps. Coakley-Rivera, Michael Kane (D-Holyoke), Joseph Wagner (D-Chicopee), Brian Ashe (D-Longmeadow), Sean Curran (D-Springfield), Don Humason (R-Westfield), Angelo Puppolo (D-Springfield) and Ben Swan (D-Springfield).
In late June, the bill received a favorable report from the Joint Committee on Environment, Natural Resources and Agriculture. It's now before the House Ways and Means Committee.
And there it's likely to stay, at least for this legislative session. "This is a very controversial, complex bill" that probably will be further amended, Sen. Stan Rosenberg (D-Amherst), the Senate's president pro tempore, recently told the Advocate. "It would be a great challenge to get it to the governor's desk" this session, he said.
Rosenberg outlined the concerns he's heard about NHESP: that in its effort to protect the habitats of endangered species, the agency has cast too broad a net; that the program hasn't always acted with adequate transparency; that the agency wields too much power in negotiations; that conflicts of interest are created when landowners are required to make monetary compensations to the agency itself or to conservation groups.
"Nobody is making themselves rich or bilking the public here," Rosenberg said. "It's just the circumstances that have been created by the system."
Programs like NHESP "need to be reviewed and revised from time to time," Rosenberg said. "It's time to review and make some revisions in this system without destroying it and without undermining its purpose and effectiveness."
He continued, "It's time to have an honest, thoughtful review so that we have a fair, transparent process that protects the public interest, balances the public interest, and then protects property rights, which is constitutionally protected. The perception is we're out of balance now."
And Candaras, the bill's lead sponsor, should lead that review, Rosenberg added: "Sen. Candaras is a very bright person and a great negotiator. ... It would be interesting to see her convene the stakeholders and work on addressing these problems."
Wallace, the GOAL director, hopes those discussions would include an acknowledgement that inadequate funding has kept NHESP understaffed, which has made it hard for the program to do its job and would make it impossible to meet all the requirements in the bill. "My hope is, this settles down and we get back to some sense of reason here," Wallace said, "If there's actually a problem with the application process, then we need to take a look at that. ... And I hope the Legislature looks at the funding, too.
Wallace believes the bill has gotten as far as it has in part because of the poor economy. "Everything in politics is timing," he said. "People are looking for ways to stimulate the economy" and may think, inaccurately, that NHESP is impeding numerous development projects.
Ryan, of Mass. Audubon, believes that by presenting a strong united front, environmental and sportsmen's groups have managed to slow down the bill's progress, at least for this legislative session. But, she added, there are "some determined people" eager to see it move forward: "I don't think we're out of the woods yet."