As legislation goes, the bill is remarkably concise, just 31 words added to an existing law: "The director [of the Mass. Division of Fisheries and Wildlife] shall not impose any project review or permit requirement upon any land unless such land is located within an area which has been duly designated as a significant habitat."
But to environmental protection groups around the state, those 31 words would all but do away with existing protections for endangered plant and animal species in the commonwealth, drastically limiting the government's power to impose restrictions on development that encroaches on habitats and puts vulnerable populations at risk.
The Mass. Audubon Society calls the bill "the most egregious attack on our Endangered Species Act" that the organization has ever seen. Sixty-seven other environmental groups around the state agree, signing on to a letter urging the Legislature to vote down the bill, contending it would "effectively gut" the endangered species law, "one of the most important and effective environmental laws in the commonwealth."
On the other side of the argument, the language is equally strong. Supporters of the bill describe the Natural Heritage and Endangered Species Program—the state agency charged with reviewing projects for compliance with the endangered species law—as a heavy-handed program that makes capricious and arbitrary decisions about where and how developers can build their projects. In some cases, the language goes even further, stretching to accusations of extortion and bullying by the state agency.
At the heart of the battle lie complex questions about individual property rights, the government's role in protecting the environment and the economic and political forces that shape environmental policy. But the fight also has roots in local politics and personalities. The bill is a Western Massachusetts production, presented by two Hampden County legislators, state Rep. Cheryl Coakley-Rivera (D-Springfield) and state Sen. Stephen Buoniconti (D-West Springfield). When the House version was taken up last month at a hearing of the Committee on the Environment, Natural Resources and Agriculture, it bore the name of 15 other sponsors, all from the western part of the state—including, surprisingly, a number that have won consistently high marks from environmental groups.
And while legislators who support the bill say they all have constituents who've had problems with the Natural Heritage program, the bill itself can be traced back to one particular property owner: Bill Pepin of Springfield, vice president and general manager of NBC affiliate WWLP-TV 22, who's engaged in a protracted battle with the state over his plans to build his dream house in Hampden—inspiring a political and legal battle to bring wholesale changes to the environmental protection program.
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The Natural Heritage and Endangered Species Program, or NHESP, is part of the Mass. Division of Fisheries and Wildlife. It was established in 1978 to protect plant and animal species at risk.
That's no small job. The Mass. Endangered Species Act lists 176 animals and 259 native plant species and their habitats, classified in one of three categories: endangered, threatened or "of special concern." The list ranges from salamanders to bald eagles, timber rattlesnakes to six kinds of whales, as well as numerous flowers, trees and herbs.
NHESP defines its mission as "the protection of the state's wide range of native biological diversity." Much of its work focuses on protecting habitats, the places where particular species find food, water and shelter. According to Fisheries and Wildlife, "Scientists and other conservationists agree that habitat loss is the number one threat to many wildlife populations." While the program used to receive funding in the state budget, since 2004 that funding has been eliminated each year, leaving NHESP to rely on grants, the fees it charges developers, and contributions through a $1 check-off box on the state tax return form.
NHESP is granted the power to review proposed development under the Mass. Endangered Species Act, or MESA, which forbids any person from "taking" a plant or animal listed under the state or federal endangered species laws. "Taking" is defined as harming the species—for instance, hunting or trapping it, or disrupting its feeding, breeding or migratory activity (in the case of animals), or picking or transplanting it (in the case of plants). MESA also forbids any person from altering a "significant habitat," a specifically defined area determined to have "the physical or biological features important to the conservation of a threatened or endangered species population." Examples include kettle ponds, limestone wetlands, vernal pools and barrier beaches.
The law does allow exceptions. Petitioners who want to alter a "significant habitat" can submit an application to the director of Fisheries and Wildlife outlining the project's specifics, its effect on the relevant species, and their plans to mitigate habitat damage. If the director finds that the plan would not unduly harm the habitat, he can issue a permit to allow the work to proceed.
That process, however, is largely moot: in fact, there are no defined "significant habitats" in the commonwealth. That designation, said Tom French, assistant director of NHESP, was created for very specific kinds of habitats that need special protection, and it grants the agency stronger powers than it typically cares to exercise. "It was designed for places considered by us to be so important, and the risk of there being harm so high, that we've been granted this fairly significant power to take over management [of the land] to a large degree," said French.
That power amounts to a "very hostile approach," he said, and Fisheries and Wildlife uses it sparingly—indeed, it has yet to apply the designation to any land in the commonwealth. "It was designed to be a method of last resort," French said. "It's a great power, but you don't want to use it unless you really have to."
Instead, NHESP focuses on a second category of land, designated "priority habitats," defined in a Fisheries and Wildlife code of regulations as the geographic extent of the habitat of any state-protected species. These areas are delineated on maps created by NHESP and updated every two years. "We have created a screening system by which we take the data we have of real reports, or real discoveries, of state-listed species, and we map the habitat that's associated with that record," French said. "We don't map everywhere where habitats occur. We just map where the core exists."
The maps, French added, provide clarity to landowners before they start building projects. If a property is not included on the habitat map, the owner "can proceed with confidence that an endangered species issue won't be raised at the 11th hour" and potentially stop the project, he said.
Projects on mapped property must undergo a review by NHESP. It's up to the landowner to determine if the property includes a priority habitat and to file for review. (An atlas showing all habitat boundaries in the commonwealth can be downloaded from a state website, or purchased for $110.) The property owner also pays a fee, which ranges from $300 to $4,000, depending on the amount of habitat the project would disturb. Developers who move forward without that review are subject to a fine or, in some cases, prison time. Certain projects are exempt from NHESP review, including agricultural uses and septic system and utility work.
Once a complete application is submitted, NHESP has 60 days to respond with a letter that lets the landowner know if the project would harm a protected habitat. According to French, Natural Heritage reviewed about 1,600 projects in the most recent fiscal year, 79 percent of which were allowed to proceed as submitted.
Another 18 percent were initially found to present a risk, but were allowed after the applicant made some revisions to the proposed project—perhaps resiting buildings planned for the property, or reducing the scale of the project. "Some of the changes are changes they don't like," French said. "'I wanted to build 50 houses, and I could only build 40.'"
In 3 percent of the applications, the agency review found that habitat destruction could not be avoided. Those projects, however, could still proceed if the applicant receives a permit from NHESP. Under the terms of a permit, a developer can destroy some, but not all, of the habitat area on the condition that he do something to mitigate the loss. In such cases, French said, NHESP likes the landowner to protect the habitat that remains on the land by agreeing to a conservation restriction that ensures he won't do more development there in the future.
"That's our preference, because it helps that population you've harmed," French said. But, he added, NHESP is flexible; the agency might, for instance, agree to the landowner's preserving habitat on a different piece of property, preferably, a local site.
If habitat protection is not possible, French said, the department might allow the property owner instead to contribute money to an effort that helps the affected species—for instance, supporting academic research or contributing to a habitat management project. The landowner, French said, chooses where the money will go. In some cases, the money could actually be "contributed" to the applicant himself, such as a farmer who agrees to create a habitat protection project.
"We're trying not to be overbearing any more than necessary," French said. "Our job is not to stop development. Our job is to protect rare species, even though our economy and population continue to grow."
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Bill Pepin scoffs at the notion that Natural Heritage tries to balance environmental interests with those of landowners. Pepin describes the program as a "rogue agency" that operates like "a banana republic of Central America" and "extorts" property owners and developers into giving money to environmental groups in order to win permission to build on their own land.
"I don't want to hurt anybody. I don't want to embarrass anybody," Pepin said. "But Fisheries and Wildlife and Natural Heritage have made life so miserable for so many people across the commonwealth, it's sad."
Pepin considers himself one of NHESP's victims. At issue is a 36-acre parcel of land Pepin and his wife bought in April, 2009, for $350,000 on South Road in Hampden. The couple now lives in Springfield's Forest Park historic district, but plans to build a retirement home on the Hampden property. While his wife, Marlene, is already retired, Pepin still works at WWLP, the NBC affiliate in Chicopee. The Pepins plan to divide the property into two lots: a 28-acre parcel, where they'll build their house, and an eight-acre parcel, where they'll build a second house that they'll sell.
When the Pepins first began looking at the land in early 2006, the property was not mapped by NHESP. But when an updated map was released that fall, the property was included as a priority habitat for the Eastern box turtle, considered a "species of special concern" by the state. (According to the state, the turtles are threatened by several factors, including "habitat destruction resulting from residential and industrial development.")
The new maps meant the Pepins' plan needed review by NHESP. Bill Pepin says he engaged in a lengthy back-and-forth with the state and hired an environmental consultant to advise him. Eventually the two sides appeared to have reached an agreement: in order to preserve some turtle habitat, the Pepins would set aside, through a deed restriction, seven acres of land at the back corner of the property that would remain undisturbed.
Pepin said he doesn't object, in theory, to environmental protections. "My wife and I are environmental people," he said. "We don't believe in destroying plants and animals. We go out of our way to protect them." Indeed, he said, "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, as Pepin tells it, NHESP continued to heap on unreasonable conditions, requiring him to submit a list of all potential uses for the remaining portion of the land. Pepin says he protested that requirement; while he and his wife only envision low-impact uses—planting trees, building sheds—they can't control what the buyer of the second plot will want to do, he said.
According to French, NHESP was interested in the Pepins' future plans because of an agency rule that requires a landowner to seek a permit if his project would affect five or more acres of turtle habitat. The Pepins' house-building plans already come close to that threshold, French said. That doesn't mean the couple couldn't do additional building on the land in the future, he added—just that they'd need to apply for a permit before they could proceed.
That, Pepin said, was the final straw. "I'm a businessman. I negotiate with people all day long," he said. "I can usually tell when I'm negotiating with someone whether it's a sincere negotiation or not. .. It became apparent to me that [NHESP was] running circles around me, with the double speak and this kind of stuff. … They dug their heels in and became more demanding."
The Pepins decided to challenge their property's designation as box turtle habitat, following NHESP's internal appeals process. After losing two appeals there, they moved their fight to court.
In September, the Pepins filed suit against the Division of Fisheries and Wildlife in Hampden Superior Court.
In the complaint, their attorney, William Murray of Springfield, contended that their property's inclusion on the habitat map "was based entirely upon one claim of a sighting by a citizen of one Turtle in the road in the vicinity of the Premises 18 years ago." The suit alleges that the person who found the turtle brought it to a wildlife sanctuary three miles from the property—meaning it did not remain on the land—and that there's no record of the animal's ever being on the Pepins' land, nor any evidence of other turtles there.
French said he couldn't speak specifically about the suit, other than to say, "It was a valid record," created in the context of other, scientifically sound records about turtle habitats.
The suit asks the court to order Fisheries and Wildlife to grant the Pepins a new appeal hearing, when they can cross-examine state employees about their case. But the lawsuit also makes a broader argument—one that could severely limit NHESP's powers, much as the Coakley-Rivera bill would.
That argument is based on the difference between MESA—which refers to NHESP's ability to review projects in "significant habitats" only —and the agency regulations, which additionally empower it to review projects in "priority habitats." Those regulations, the lawsuit contends, overstep the boundaries of the state law.
"MESA makes no mention of priority habitats. MESA does not authorize the Division to create any protected area other than significant habitats," Murray wrote in the complaint. The suit asks the court to strip NHESP of its power to intervene in cases of "priority habitats," and to declare that portion of the regulations to be "unconstitutional, invalid, void and unenforceable."
That argument has found some political support. In a letter submitted to a Oct. 7 House committee hearing on the Coakley-Rivera bill, former Springfield state Sen. Linda Melconian wrote that the inclusion of "priority habitats" in the regulations disregards the will of lawmakers when they wrote MESA. "If the legislature had intended to have a second classification, it would have written it into the law," she wrote. "The regulation creating a Priority habitat ignores the intent of the legislature and circumvents the current law. More importantly, in dismissing the legislature's classification of Significant Habitat, it rewrites the law without authority [in order] to meet its own agenda. Furthermore, it creates costly and unnecessary studies and surveys for both landowners and developers."
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The argument that NHESP is overstepping its statutory powers is a "political trick," similar to efforts to weaken environmental protections on the federal level, said Zygmunt Plater, a professor of law at Boston College and an environmental activist who successfully argued for stronger enforcement of the Endangered Species Act before the U.S. Supreme Court.
"Regulations are there to articulate the terms and policies created by the Legislature in the statute," Plater said. "[Fisheries and Wildlife] has done a very measured job of articulating how statutes that really involve complex science and understandable economic pressures are to be implemented."
Plater strongly doubts the Pepins' lawsuit will be successful. Courts have consistently allowed government agencies to impose restrictions on property use for the sake of the public good, and to require landowners to mitigate damage their projects cause. "The fact that they are trying to do this in the Legislature, by this camouflaged maneuver which on the face of it does not appear to be drastic, means that they realize that their legal argument will in all likelihood fail if they try this in court," Plater said.
The efforts to weaken NHESP rely on the notion that environmental protections automatically restrict healthy economic development, Plater said. "That's the typical anti-regulation pose—you try to cultivate these urban legends of endangered species bringing everything to a halt." In reality, more often than not, development moves forward anyway—as seen in NHESP's own statistics, which show that almost four out of five projects it reviews proceed with no changes.
The kinds of charges leveled against NHESP—that it extorts money from developers, that it tramples over citizens' rights, putting the needs of salamanders and turtles over those of people —are a "gut, emotional argument" that serve to draw public attention from the merits of a particular case, Plater said. "But most of us recognize that when an institution says, 'This is private property; you can't regulate us,' that in a modern society, there are a number of consequences that can be really distressing. …
"Private property rights have never been absolute. They've always been shaped in a community," Plater continued. And the laws and policies created by a community affect just about every property owner. "I can't build my garage up against the property line, and I can't spill paint into the gutter—all sort of little things," he said.
"You often find the animosity against endangered species protection is an indication of just an animosity against civic governance itself," Plater said. "That's kind of a charming streak in the American cultural heritage, but it denies the realities of modern civilization, that we need to have government because laissez faire has created a huge number of problems—including the crash of the stock market."
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Pepin says he's confident of winning his lawsuit. Still, the Pepins aren't just fighting NHESP in court—they also decided to challenge the program in what Pepin calls "the court of public opinion."
"Fish and Wildlife doesn't care about the court of public opinion," he said. "The Legislature does."
So, Pepin said, he brought his problem to the attention of the two lawmakers who represent his Springfield district, Coakley-Rivera and Buoniconti. He found a receptive audience. Both legislators introduced bills, and Coakley-Rivera lobbied to get other state reps in Western Mass. to sign on as co-sponsors, with 15 agreeing. (Buoniconti's Senate bill, which has the exact wording as the House bill, has no co-sponsors yet, according to the Senate website.)
The Advocate contacted Coakley-Rivera for an interview about the bill. In response, she sent a prepared statement in which she recounted being approached by "a constituent" who was having problems with NHESP.
"After speaking with a number of Western Massachusetts colleagues, it became clear that my constituent's problems were not unique and that many other people in Western Massachusetts were experiencing similar issues," the statement went on. Coakley-Rivera said she filed the bill "to address the concerns voiced by people in Western Massachusetts that state officials are overreaching the legitimate aims of the Massachusetts Endangered Species Act, imposing significant, unjustified restraints on the ability of landowners to use their land."
The bill, Coakley-Rivera added, "does not abolish the Massachusetts Endangered Species Act."
That's technically true. But in practice, the law would strip NHESP of virtually all its existing powers, limiting it to reviewing only projects that fall within areas designated "significant habitats"—a narrowly defined power, one that even the department itself is loath to exercise unless absolutely necessary.
"There's no accident in this bill, what it does," French said. "They know full well we don't [review significant habitat projects]—that's not what we do."
"This is a classic indirect attack," concurred Plater, the BC professor.
State Rep. Peter Kocot (D-Northampton) describes himself as an environmentalist who spends a lot of time enjoying nature and working to protect it. His legislative record supports that: Kocot has backed legislation to preserve open space, promote alternative energy and limit greenhouse gases, and has consistently voted in support of funding for Fisheries and Wildlife. In 2008, his voting record earned a 100 percent approval rating from Mass. Audubon.
So why is Kocot supporting a bill that Audubon—and dozens of other environmental groups—say would devastate the state's ability to protect vulnerable species?
Kocot says he was driven to back the bill after hearing "horror stories" from constituents who've had frustrating run-ins with NHESP—a builder in Southampton who got the OK from the town to build houses, only to be halted when he found out the land was on a habitat map; a farmer in Hatfield who was stopped from temporarily putting a hose in the Connecticut River to irrigate his cucumbers, as he'd done for years, over concerns it might disturb a sparrow habitat.
"Over the past couple of years," Kocot said, "the message I'm getting from my constituents and my colleagues is, we've come to a point where it's very hard to understand how the agency operates"—for instance, how it decides when to intervene in a project, or how it maps the boundaries for a protected habitat.
"I'm not confident they're sending a staff person out, looking around, seeing a wood turtle," Kocot said. "They're not actually going out and rustling up the leaves and saying, 'There's a plot of ginseng—we're moving the map.'…
"They don't have enough people staffing the program to do the kind of hard science that the public and the Legislature can trust and be confident in," Kocot added.
Like Kocot, state Rep. John Scibak (D-South Hadley) also received a perfect rating from Mass Audubon last year. And, like Kocot, he's split with the conservation organization over the Coakley-Rivera bill.
Scibak says he, too, was motivated by constituent complaints. He pointed to the Town of South Hadley, which last year found out that a 22-acre parcel it purchased as the potential site for a new school has been mapped as habitat for an endangered reptile.
It's important to note that the existence of the habitat does not necessarily mean a school cannot be built there; rather, it requires that the town submit any plans for the land to NHESP for review. Last December, the Springfield Republican reported that South Hadley School Superintendent Gus Sayer "said he does not anticipate any problems with building a new school at the site because the size of the land is substantial." A state spokesperson concurred, telling the newspaper that "developments usually proceed in such cases."
According to Scibak, there's an "arbitrariness and capriciousness" to certain NHESP practices. For instance, Scibak believes there should be a formula in place to determine how much money a petitioner might have to pay as part of a mitigation effort. "I think that the program has an obligation to provide greater transparency and accountability," Scibak said.
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The Oct. 7 hearing on the Coakley-Rivera bill ran more than four hours, and featured harsh testimony against NHESP.
That included the letter submitted by Melconian, the former state senator, which recounted a conflict with NHESP over the extension of Route 57 in Agawam (part of her former district) during the early 1990s. On letterhead from Suffolk University, where she now teaches, Melconian contended that "at the 11th hour, in an effort to kill the project," Natural Heritage, "through the Department of Environmental Protection," introduced a lengthy list of conditions on the construction plan. (According to news reports at the time, conservationists worried the project would destroy habitats for dozens of plants and birds, as well as coyotes, red foxes and spotted turtles.)
That inspired swift retribution from the then-legislator. "In the Senate, I had to resort to eliminating the funding in the budget for the western regional DEP office before we could resolve those spurious conditions," wrote Melconian, who teaches courses in business law ethics and public management at Suffolk. The Route 57 extension, she added, "has been built at no peril to any endangered or threatened species."
Also weighing in was former state Sen. Brian Lees, who wrote in a letter to the committee that he "wholeheartedly endorse[s] any legislation that will limit the opportunity given to [Fisheries and Wildlife] to interfere with the permitting process."
Lees, a Longmeadow Republican who served as the Senate Minority Leader until 2007, is now clerk/magistrate for Hampden Superior Court (the same court where the Pepins are suing Fisheries and Wildlife). In his letter, written on Court letterhead, Lees complains about his dealings with Fisheries and Wildlife on behalf of his then-constituents. "I was consistently amazed by the lack of respect and understanding of legislative procedure and protocol demonstrated by this agency," he wrote.
"On several occasions I was informed by constituents that they had been told that to even speak to a legislator about possible intervention on their behalf would have the effect of putting an end to their project," added Lees. The letter offered no details of these alleged threats.
French, of NHESP, called that claim "just an outright inappropriate accusation. We deal with [legislators advocating for their constituents] all the time."
Sitting at the hearing, listening to the criticisms leveled against his agency, was "embarrassing," French told the Advocate. "There was a lot of character assassination"—attacks on NHESP's scientific credibility and its employees' integrity, not to mention accusations of extortion and bullying by the agency. "If you bought it at face value, it sounds awful," he said.
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The reality of what NHESP does, French said, is a lot more complicated than its critics understand—not to mention a lot better intentioned.
Some of those offering testimony at the hearing, French suggested, simply don't understand the admittedly complex process by which the program evaluates projects. Others—French suspects Pepin falls in this category—have philosophical objections to government intervention in what a landowner does with private property.
And some, French said, were simply exaggerating the details of their situation, perhaps out of frustration. For instance, he said, he commonly hears complaints like: "I've been working two years on this project, and I still don't have a permit from Natural Heritage." But dig a little deeper, French said, and you might find that the developer has been planning the project for years but only applied for a NHESP review a couple of months ago, or that he failed to submit a complete application, slowing down the process.
French isn't surprised when applicants insist the habitat maps are incorrect. "In any number of topics the first response—it's just human nature—is to deny the problem," he said. "'Your map is wrong; your record is wrong'—whatever."
French believes that many of the grievances aired at the hearing were from old cases and don't reflect changes made at NHESP. Specifically, he pointed to a major rewriting of the program's regulations in 2005, with the goal of making the review process faster and fairer. Those changes included the addition of an internal appeals process where applicants could challenge agency decisions.
The revisions, French said, were made with the input of "stakeholders," including developers. "We worked hard to involve them, to tell us what doesn't work for [them]," he said. One complaint the agency heard was that the review process took too long; in response, the new regulations specified deadlines for the agency to conduct its reviews. If it fails to meet those deadlines, the application is automatically approved.
The regulations, French added, also include a flexibility regarding mitigation efforts—again, in response to developers' concerns. While applicants sometimes complain that they've been "forced" by NHESP to, for instance, donate money to an environmental group, that's just not true, French said. Rather, he said, the agency tries to offer the applicant options; while it might state a preference for a particular mitigation effort that it believes would be most effective, "preferences aren't requirements," French said. "Maybe people are confused by that, or misrepresent that."
French said he takes the concerns raised about NHESP seriously. While he believes its review process is fair and thoughtful, he said, "I can see that people on the outside might not understand. I have no problem with making that more clear."
But, he added, making the process simpler would necessitate taking away some of its flexibility. "If you want a system that's simple, a lot of people believe it's rigid and not as fair," French said. "If you want a system that's flexible and can be responsive to different scenarios, it has to be more complex."
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While French is open to improvements to his agency, he said, the place to make them is through regulations—not a bill that would virtually strip Natural Heritage of all its powers. "The bill, as written, would be devastating," he said. "I would hope that the Legislature wouldn't try to fix a minor thing with a big hammer—instead of a fly swatter, using a sledgehammer."
Kocot said that's not his goal. "My intent is not to kill that agency," he said; rather, he wants to make it more efficient, and help the public better understand its decision-making process.
"The legislative process is meant to be a process that includes getting information from all sides, looking at the law, trying to craft a solution," Kocot said. "I'm very, very open to amendments. I want to put this agency in the right place. … If in fact the problem is this agency is understaffed and underresourced, I want to fix that. …
"This is not an opportunity to punish or push around this agency," Kocot added. "It's an opportunity to improve it."
State Rep. Ellen Story (D-Amherst) is one of the few members of the Western Mass. House delegation not to co-sponsor Coakley-Rivera's bill. She heard the pitch for the bill directly from Pepin, who came her Boston office to make his case. "He's a very compelling advocate for his bill," Story said. "He has had a long, stressful process trying to build a house on land that he owns, and does not think that the Fisheries and Wildlife department should be interfering. And I can understand that.
"But the bill, his bill, would just completely do away with the whole regulatory process that we have for protecting endangered species, and that is not something that I think is in the best interest of the commonwealth," Story continued. "If this passed, there would be an immediate outcry from our constituents, saying, 'What are you thinking?' and pressure to start immediately passing something that would undo what we just did."
State Rep. Stephen Kulik (D-Worthington) also declined to sponsor the bill. "I believe this bill is an extreme law that would undermine the Natural Heritage program, which has protected a lot of important natural resources in Western Mass., and I hope it will continue to do so," he said.
"If we could do it better, we should do it better," Kulik added. For instance, he supports line-item funding for NHESP in the state budget, to ensure it has the resources to do its work effectively. "But this proposed legislation would take us backward."
And that's something we can't afford, said Jennifer Ryan, Mass Audubon's legislative director and a former NHESP employee. Species extinction is happening at an alarming rate, and that pace is only exacerbated by climate changes, Ryan said. "One-third of plants species in Massachusetts are on the way to being extinct. And it's done by people," she said. "We're losing sight of the big picture."
