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Testimony before Joint Committee on Environment, Natural Resources and Agriculture, Boston, Massachusetts, April 5, 2007

Regarding H3757 – An Act Regarding the Licensing Requirements for Landlocked Filled Tidelands

by John Andrews, President,
Massachusetts Coalition for Healthy Communities

Good afternoon. My name is John Andrews and I am President of the Massachusetts Coalition for Healthy Communities (MCHC), a non-profit organization that advocates for sustainable, just, communities. One of our key concerns is ensuring strong and effective community participation in planning for the future of both private and public lands.

We have deep concerns about the manner in which H3757 weakens the public voice and the environmental protections provided in the Public Waterfront Act (Chapter 91) for the public trust lands known as landlocked tidelands. Please permit me to go over our major concerns.

· Public rights of participation in planning the use of public-trust land (established by Chapter 91) are important and should not be abridged. We have seen again and again that when the public is excluded from the process, public interests are put at risk. What a real estate developer sees as public benefit is often not what the affected public sees as a public benefit. A true dialogue is needed to get it right. Such a dialogue should not be bypassed by blanket exclusions of filled tidelands from the planning process.

· Blanket exclusions of landlocked tidelands made possible under H3757 pose a threat to environmental protections implemented under previous Chapter 91 agreements. Many filled tidelands have ongoing problems associated with dropping water tables causing building supports to rot, flooding, and neglected maintenance of drainage structures. Any discontinuance of Chapter 91 oversight will inevitably result in lack of maintenance of mitigating structures and infringement upon critical resources by ongoing alterations. We urge the Legislature to seek a full assessment of the potential damage resulting from withdrawing Chapter 91 protections before acting on any legislation that affects Chapter 91 coverage.

· Our tidelands need to be treated with more respect, not less. Our coastal areas have been under a sustained assault for decades, and there is desperate need for relief. A 2006 study led by the Massachusetts Office of Coastal Zone Management found that the Boston Harbor area originally had 5,236 acres of estuarine marsh. Today, we have only 2000 acres, a loss of 62%. Filling of tidelands and development in filled tidelands can have significant environmental impacts, by causing flooding, altering groundwater levels, and increasing pollutant loads upon adjacent waters. While we would all agree that some development is justified, we must be aware that all development has environmental implications and we need to proceed with caution and with the best mitigations we can devise. The current law says that Chapter 91 licensing is required for all tidelands, and that requirement should not be changed. Now is not the time to be removing the unique and effective layer of protection represented by Chapter 91.

· H3757 does not resolve the "clouded titles" issue as alleged by some proponents. H3757 addresses the licensing process under Chapter 91. The licensing process does not confer title, nor does it invalidate title. If a landowner has, in effect, seized public property by building upon tidelands without having title or license, that issue must be resolved separately and should not be used as an excuse to weaken public rights and environmental protection as provided in Chapter 91.

· Reducing Chapter 91 protection will have negative impacts upon many residents, including property owners. In promoting this bill, certain real estate interests have asserted that there is an economic benefit in removing public rights and environmental protection from landlocked tidelands. But these special pleadings come from lobbyists paid to represent their own clients – not all residents – and not all property owners. When land is developed without due regard for community and environmental interests, quality of life declines in many ways and the interests of property owners throughout the community can suffer. The unique quality of life in our coastal communities – as well as property values in coastal communities – benefit greatly from public access to thriving coastal resources. We ask our legislators to take care to distinguish between the narrow financial goals of lobbyists associated with particular parcels and the broader interests of the community as a whole.

· We reject the "economic stimulus" argument for relaxing tidelands oversight. It is our fear that the tideland alterations that would be unleashed by rolling back oversight may well provide more harm than benefits to the economy and the public interest. H3757 boldly asserts that development "revitalizes" tidelands and "increases the public’s access to the waterfront." We would assert that whether the pubic is injured or benefited by development, depends upon the details of the development. Often developers are required to provide mitigation or compensation because their projects, as originally proposed, do clear injury to the public interest. Chapter 91 recognizes that economic goals can be harmed by unwise development – as when commercial fisheries are pushed off the waterfront. Public review and an open licensing process is critical to ensuring just, sustainable, and positive outcomes. Poorly regulated development focused on profit maximization for the developer should not be allowed to masquerade as an economic stimulus strategy.

· State agency oversight is necessary for landlocked tidelands. Landlocked tidelands, even if regulated by zoning and wetlands statutes administered locally, have special concerns that are only addressed by Chapter 91. Environmental effects of tideland development almost invariably extend beyond the borders of any one municipality. Understanding environmental effects can require expertise that is not present in municipal boards. And coastal development affects many citizens of the Commonwealth who do not themselves reside in the host community. These concerns cannot be addressed with confidence by actions of a local municipality. For all these reasons, DEP oversight is critical and they should provide oversight in all tidelands developments.

· The real emergency we face is not a temporary uncertainty in a particular real estate market – as claimed by the real estate lobbyists. The real emergency is the permanent and irreparable loss of coastal resources due to unwise coastal development. The largely imaginary "cloud" on real estate transactions will soon pass and the sun will shine again. But the damages being done to fisheries, to public rights on the waterfront and on filled tideland, and to historic buildings on filled land are real and will persist,- in the case of the environment, – for centuries. Public involvement and DEP scrutiny of development in landlocked tidelands should be welcomed. The citizens who brought the NorthPoint lawsuit should be commended by all who believe in the rule of law, the public’s right to participate in decisions that shape our future, and the preservation of our natural resources.

· And finally, passage of H3757 would have a chilling effect upon enforcement of community rights and environmental statutes in the Commonwealth of Massachusetts. It would say to our citizens that when a state agency fails to provide them with protections guaranteed them by law, there is no sure recourse, because insisting upon enforcement may result in powerful lobbying interests convincing the Legislature to simply eliminate the law. Too many corners are already being cut in the process of protecting public rights and the environment. We do not want to start down a slippery slope in which licensing first violates the law and then discards the law. We urge the Legislature to uphold the law and to craft measures that preserve the protections of Chapter 91.

Thank you for giving us this opportunity to testify on this important matter.

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