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April 7, 2007
Tidelands Bill Meets Opposition from Community Advocates and Legislators
By John Andrews, MCHC

Real estate lobbyists have rung up a string of impressive legislative victories over the past few years. So when the Patrick Administration responded to their call to roll back environmental oversight and community participation on tidelands, they probably anticipated an easy win. But at an April 6 public hearing, an array of legislators, non-profits and neighborhood groups tilted heavily against the Patrick Administration bill, and its future is now in doubt.

The hearings began with Ian Bowles, Secretary of Environmental Affairs, telling the Committee that H3757 was necessary to restore the “status quo” in tidelands licensing. Bowles admitted that the Department of Environmental Protection had failed to require the environmental oversight and licensing required by the Chapter 91 Public Waterfront Act. But he argued that since filled tidelands were not directly on the waterfront, there was no reason for Chapter 91 oversight. The DEP had only a few staff to work on licensing, he noted, and by giving up oversight over landlocked tidelands, they could concentrate on the actual waterfront. There were other laws such as MEPA and the Wetlands Protection Act that could protect the public interest even if Chapter 91 were set aside, Bowles assured the Committee.

Bowles denied that the legislation was intended to “rescue NorthPoint”, the 48 acre development near the Cambridge waterfront that was recently found by the Supreme Judicial Court to be in violation of Chapter 91 requirement for environmental permits and community input. Two highly placed Patrick Administration officials are former NorthPoint project chiefs. One was the developer’s lawyer who lead the fight against the citizen’s lawsuit.

Bowles and Arlene O’Donnell of DEP described Chapter 91 as mainly focused on the issue of access to the waterfront. They emphasized the historic origins of the public trust doctrine which concerned rights to “fishing and waterfowling” – protections that they said were largely irrelevant to filled tidelands.

Officials from the Boston Chamber of Commerce and Boston Redevelopment Authority echoed Bowles points. A series of real estate lobbyists predicted disasters if licensing were allowed to apply to landlocked tidelands. Their main assertion was that the licensing would “cloud titles” and could result in delays in obtaining financing for ongoing development projects. It could reduce our state’s competitive edge in attracting business, they warned. For these reasons they urged a quick blanket exclusion of landlocked tidelands from Chapter 91 protection.

Also testifying in favor of the bill were persons from

• National Association of Industrial and Office Properties (NAIOP)
• Boston Redevelopment Authority
• Real Estate Bar Association
• Boston Harbor Associates
• Downtown North Association
• Trinity Financial
• Greater Boston Real Estate Board
• Asian Community Development Association
• Carpenter and Company
• Epsilon Associates

A different take on the matter came from a group of state legislators – several of whom represented the NorthPoint communities of Cambridge and Somerville. Representatives Provost, Rushing, Sciortino, Toomey, Walz, and Wolf stood together to deplore the bill as an unjustified rollback of important protections for the environment and for public participation (See the letter signed by ten legislators that is posted elsewhere on this site.)

Others who testified in opposition to the billwere

• John Moot, Stosh Horowitz, Steve Kaiser and Elie Yardin of theAlliance of Boston Neighborhoods
• Jamie Medea, Massachusetts Maritime Trade Association
• Cate Bowdich, Charles River Watershed Association
• Peter Shelley, Conservation Law Foundation
• John Belskis, Coalition for the Reform of 40B
• John Andrews and Jill Stein, Massachusetts Coalition for Healthy Communities
• Ward Moorehouse, Program on Corporations, Law and Democracy
• a variety of private citizens
• Jay McCaffrey, Massachusetts Sierra Club†
• Former State Representative Mel King†
• Shirley Kressel, Alliance of Boston Neighborhoods †
† = submitted written testimony

Among the many points made by the opposition were the following:

• This is about tidelands – not just the waterfront.
• Chapter 91 is concerned about much more than fishing and waterfowling. It protects many irreplaceable values of our coastline.
• Community participation in development decisions is essential, and guaranteed on public trust tidelands by Chapter 91.
• The environmental impacts upon the waterfront do not suddenly cease when land is 250 feet from the water’s edge. So-called landlocked tidelands can be important to public access to waterfront areas. And their development has real environmental impacts that need to be properly managed – including flooding, unstable groundwater which causes wooden building foundations to rot, and runoff into the endangered coastal marine ecosystem.
• Public rights in tidelands do not cease merely because land is filled or because a license is granted to construct a building. Developers should respect the existence of public rights.
• Other laws are no substitute for Chapter 91 because Chapter 91 has a special focus on tidelands and public rights and benefits.
• Maintenance of drainage structures and other mitigations on filled tideland are a growing problem. Exempting filled land from environmental oversight would take away a possible tool for dealing with these problems.
• There is no emergency with regard to titles. And in any event, H3757 does not address problems of title.
• Being short-handed at DEP is no excuse for taking away public rights to tidelands.
• It may make sense to grandfather in the structures that were built on filled tidelands prior to the SJC ruling. But this should not be used as an excuse for eliminating oversight on all construction from this point forward.
• The areas around Boston Harbor that are threatened by flooding if global warming causes a rise in sea level correspond in large measure to filled tidelands. This seems to be a poor time to begin eliminating planning tools for these lands.
• The NorthPoint citizens went to court because government was not enforcing their rights under the law. Now the Patrick Administration wants to snatch the law out from under them. This would have a chilling effect on any citizens contemplating the difficult battle to get developers to obey environmental laws.

Jill Stein, who led MCHC’s effort to sound a statewide alert on Patrick’s bill, told the committee “Our oceans and our shorelines are in real trouble with fisheries declining 90% in some cases. Recently we’ve heard a lot here in Massachusetts about expedited permitting and expedited development. But what we really need is expedited environmental protection.”

On the Joint Committee, Rep. Will Brownsberger (Belmont) and Rep. Michael Moran (Alston) were quick to challenge testimony from the real estate lobbyists and to note the need for public process on filled tidelands.

Acting DEP Commissioner Arlene O’Donnell drew some laughs when she portrayed Chapter 91 as requiring oversight of filled land like “center field at Fenway Park”. But Rep Moran responded “I happen to think that oversight over 4 or 5 million square feet of new development in my district is not a joking matter . . . To ask us to give away our oversight, our authority, our seat at the table, if you will – to ask us as a Legislature to do that – I think we’d be crazy to.”

Referring to Patrick’s campaign slogan, Moran told the Administration officials “To be frank, this doesn’t really have a ‘Together We Can’ type of attitude.”


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