Massachusetts’ top court last week ruled against Springfield resident Bill Pepin, the vice president and general manager at WWLP, in a case that pitted property rights against environmental protections.
Pepin and his wife, Marlene, filed the lawsuit against the Mass. Division of Fisheries and Wildlife in 2009, after a dispute over their plans to build a retirement home and a second house on 36 acres of land they own in Hampden. (See “Fighting for Habitat,” Nov. 26, 2009, http://www.valleyadvocate.com.) Prior to their buying the land, it had been designated by the Mass. Natural Heritage and Endangered Species Program as a “priority habitat” for the Eastern box turtle, which the state considers a “species of special concern,” threatened by several factors including “habitat destruction resulting from residential and industrial development.” Owners of property with that designation must submit any development plans they have to NHESP for review, to ensure the work doesn’t pose a threat to a protected plant or animal species.
In the majority of those cases—about 80 percent—the plans are approved with no changes. In some cases, the state requires some alterations to the plan—moving a proposed building to a different spot on the land to protect a habitat, for instance, or, in the case of large-scale projects, reducing the number of houses to be built. If the state review determines that habitat destruction cannot be avoided even with changes, the landowner can still receive a permit to build if he or she agrees to take steps to mitigate the loss, such as committing to a conservation restriction forbidding future development at the site, agreeing to preserve habitat on another parcel of land, or paying money to an environmental protection organization or project.
The Pepins balked at the state’s review of their land. In an earlier interview with the Advocate, Bill Pepin described himself and his wife as environmentalists who value open space, but said the state had overreached in its intervention of their house project. While the two sides initially reached a tentative agreement, in which the couple would accept a deed restriction banning development on seven acres of the property, Pepin said NHESP continued to make excessive demands, asking, for instance, for a list of potential plans the couple might have for the property in the future.
In response, the Pepins filed their lawsuit.
The suit argued that NHESP’s rules regarding “priority” habitats are invalid because that habitat designation was not included in the Mass. Endangered Species Act passed by the state Legislature; rather, the designation was created in department regulations. The SJC ruling, like previous rulings from lower courts, upheld the validity of those regulations.
Bill Pepin did not respond to an interview request from the Advocate. The day after the ruling was announced, his attorney, Bill Murray of Springfield, told the Advocate that his client was still digesting the decision. “Of course, we’re disappointed,” Murray said.
Murray stressed that he had yet to discuss with his clients what, if any, steps they might take next. But he did outline some options available to them, including agreeing to NHESP’s conditions so they could go ahead with their project, or selling the property.
The Pepins could also wait to see if the land’s “priority habitat” designation, made in 1991 based on a report of a turtle near the land, expires, Murray said. Generally, he said, such designations stay in state records for 25 years, an anniversary that’s fast approaching for the Pepins’ land.
That does not mean that new reports of endangered species might not keep the land under state protection, Murray added: “By May of 2016, there could have been sightings of other turtles on that land, or an endangered snake, or a polar bear, or whatever.”
In response to a request from the Advocate, Fisheries and Wildlife sent a comment about the ruling from DFG Commissioner Mary Griffin: “The Patrick Administration has a proven track record of protecting rare species while also allowing development to take place. We are pleased with [the SJC] decision and look forward to continuing this vital environmental mission we are charged with carrying out.”
The SJC ruling was cheered by environmental groups, including Mass Audubon. “It was great news,” Karen Heymann, legislative director for Mass Audubon, said last week.
Still, Audubon and its allies are keeping a close eye on a bill pending at the Statehouse that could dramatically affect the state’s ability to protect endangered species. That bill, filed by state Sen. Gale Candaras (D-Wilbraham) on behalf of Pepin—it’s commonly referred to as the “Pepin bill”—would strip the Division of Fisheries and Wildlife of its ability to impose conditions to protect land designated as “priority habitat.” Instead, it would restrict the division to intervening only in cases deemed “significant habitats,” a stricter designation that carries greater protections but that, in fact, has never actually been applied in the commonwealth. (See “Endangering Species,” July 26, 2012, http://www.valleyadvocate.com.)
If the Pepin bill passes, Heymann said, “it would essentially repeal the Mass. Endangered Species Act.”
Audubon and other environmental groups instead support an alternative bill, filed by state Rep. Steve Kulik (D-Worthington), that would codify “priority habitat” in state law, ensuring that NHESP could continue to review projects in those environmentally sensitive areas.
NHESP has “been a really successful program,” Heymann said. “It’s scientifically sound, as is the Endangered Species Act. It’s really working well to inform landowners when there are state-list species on their land and working fairly quickly to make sure projects can go ahead.”
Heymann countered claims by critics that the state’s environmental protections violate the rights of property owners by pointing to the large percentage of reviewed projects that are allowed to go forward with no conditions. “That in itself shows that Natural Heritage is willing to work with landowners,” she said.
Both Kulik’s and Candaras’ bills are before the Joint Committee on Environment, Natural Resources and Agriculture.•