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Legislators mull changes to Endangered Species Act

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 of the issue, which is 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, says 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 that he says has worked and allowed the agency to negotiate to allow development to proceed. His 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 carried out.

Among the requirements of the bill, which has backing from environmental groups, the Patrick administration and the Commercial Real Estate Development Association, is that anyone who reports seeing any threatened animal or plant on the property must 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 Massachusetts Audubon Society Legislative Director Karen Heymann, who was among those testifying on behalf of Kulik’s proposal as a way to resolve problems with the law that have cropped up over the years.

The Candaras bill, she 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 construction, with another 3 percent requiring a conservation and management permit if the division determines a protected species will be harmed by the construction.

Candaras, a Wilbraham Democrat 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 in written testimony.

Committee co-chairman Sen. Marc Pacheco, a Taunton Democrat, 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.

Department of Fish and Game Commissioner Mary Griffin said the law was changed in 2005 and 2010 to allow for off-site mitigation, and said Kulik’s bill allows off-site mitigation at a one-to-one ratio. The bill also prohibits the use of information obtained through trespassing and establishes public comment periods and a requirement to update “priority habitat” maps.

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,” committee Co-chairwoman Anne Gobi, D-Spencer, said, 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.”

On the Web: https://malegislature.gov/Bills/188/House/H756

https://malegislature.gov/Bills/188/Senate/S345

You can reach Richie Davis at: rdavis@recorder.com or 413-772-0261, Ext. 269

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