Competing bills would have impact on state Endangered Species Act

Last modified: Monday, December 09, 2013

A 23-year-old law designed to protect threatened plant and animal species in Massachusetts is facing a makeover in the Legislature and could itself be threatened by one of the proposals, say a coalition of 80 environmental groups.

The Endangered Species Act would be affected by bills filed by Rep. Stephen Kulik, D-Worthington, and by Sen. Gale Candaras, D-Wilbraham, with vastly different outcomes, according to observers. The bills are now before the Legislature’s Joint Committee on Environment, Natural Resources and Agriculture.

The Candaras legislation was refiled from last session in response to concerns raised by the Springfield television station executive whose plans to build a retirement home on a 36-acre Hampden property designated as a “priority habitat” after an Eastern box turtle had been seen on the land. The bill would restrict the Division of Fish and Wildlife to imposing land-use restrictions only on land deemed a “significant habitat.”

That would make it more difficult for regulators to designate and would essentially gut the law, said Kulik, whose legislation would allow the “priority habitat” designation — adopted as part of the Fish and Wildlife regulations — to continue as a more flexible mechanism. He said it has worked and allowed the agency to negotiate to allow development to proceed.

Kulik’s bill, which is also supported by Rep. Denise Andrews, D-Orange, and Rep. Ellen Story, D-Amherst, would codify “priority habitat” language to clear up confusion about that designation, and also create more transparency in the way the law is executed.

The bill, which has backing from environmental groups, the Patrick administration and the Commercial Real Estate Development Association, would require anyone who reports seeing any threatened animal or plant to sign a sworn statement that they had permission to be on the property in question, said Kulik. It would also require Fish and Wildlife to define “priority habitat” using the best available scientific evidence.

“We believe it’s a common-sense bill, and represents a way forward for both developers and the conservation community,” said Karen Heymann, legislative director for the Massachusetts Audubon Society, who was among those testifying on behalf of Kulik’s proposal as a way to resolve problems with the law that have surfaced over the years.

The Candaras bill, Heymann said, would damage what conservationists and developers alike see as “a cornerstone of conservation in Massachusetts. This would be chipping away at that and removing the authority of the Division of Fish and Wildlife” to enforce the law.

Supporters of Kulik’s bill maintain that 77 percent of projects proposed for priority habitat in a typical year move forward without having special conditions set, another 20 percent are subject to special conditions, such as restricting the construction season or monitoring the work, with the remaining 3 percent requiring a conservation and management permit if the division determines a protected species will be harmed by the construction.

Candaras, D-Wilbraham, who represents Hampden, said the division has gone well beyond the structure of the law.

“In this instance, the regulations promulgated by the division are the strongest example of agency overreach and misguided regulatory action I have witnessed in my 17-year tenure as a legislator,” she wrote.

Committee co-chairman Sen. Marc Pacheco, D-Taunton, said the administration of the program has been “fair to poor” while regulators said they have made efforts to make the program more transparent and equitable.

“At the end of the day — believe me — my job is not to protect every Eastern box turtle in the state. My job is to make sure two or three decades from now they’re still around,” Fish and Wildlife Deputy Director of Administration and Personnel Jack Buckley told the committee.

Buckley said some use the Endangered Species Act with the aim of stopping development, not protecting a particular animal, which he said was apparent when the division held a hearing about taking the spotted turtle off its list.

“We had people come to the hearing and say, ‘If you do this, I will not be able to stop this project.’ And our board said, ‘That’s not what we’re here for,’” Buckley said.

“This committee will work on what will truly be a consensus bill,” said committee co-chairwoman Anne Gobi, D-Spencer, adding that she has concerns for builders big and small, as well as environmentalists.

“The big projects will always find a way to be able to get done,” Pacheco said.

Rep. Paul Mark, D-Peru, a committee member, called Kulik’s bill “a middle ground,” adding, “Everyone wants to strike the right balance.”

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