Public Rights in Tidelands Development
Friday April 13, @10:51AM, by John Andrews, Jill Stein, Elie Yarden
Subject : Public Rights in Tidelands Development
Summary :
In February 2007, the Massachusetts Supreme Judicial Court ruled that the DEP had erred in exempting certain filled tidelands from the public process specified by Chapter 91 - The Public Waterfront Act. The Patrick Administration moved quickly to submit legislation to permit wholesale exemption of filled tidelands from the Act. This exemption would allow development to bypass questions of public benefit and mitigation of harmful effects of development. The proposed statement says the important public benefit considerations of Chapter 91 should not be thus abrogated.
Text :
Statement of the Green-Rainbow Party on Public Rights in Tideland Development

Recently the Supreme Judicial Court, acting on a lawsuit brought by Cambridge citizens, ruled that licensing under the states’s Chapter 91 law (known as the “Public Waterfront Act”) was required of all tidelands, even the so-called “landlocked” tidelands that had been filled or cut-off from tidal flows by road construction. In effect, the Court found that DEP had been using lax licensing procedures to unlawfully deny the pubic full protection under the law. The response of the Patrick Administration was swift: They introduced a bill (H3757) to make the DEP’s actions legal by allowing a blanket surrender of public rights on landlocked tidelands. Powerful real estate interests initiated an intense lobbying effort in support of the rollback.

The Green-Rainbow Party is persuaded that the Administration’s bill is ill-conceived and contrary to the public interest, and represents a setback for community participation in vital matters. We note that

• Tidelands, whether filled or not, are public trust lands in which the public interest must be respected. Extinguishing public rights in the development of those lands amounts to a giveaway of important public rights.

• Land that is further than 250 feet from tidal flows is not irrelevant to waterfront concerns, as the Administration has asserted. Such land is ecologically connected to tidal flows and the manner of development there can affect waterfront access.

• Chapter 91 requires that developers of tidelands show that their projects serve a true public interest with special focus on waterfront values. This approach has yielded tremendous environmental and economic benefits for coastal communities, while allowing suitable development to occur. Chapter 91 should not be rolled back in order to expedite real estate projects.

• We continue to discover ways in which abuse of tidelands, landlocked or not, causes problems. The problem of the rotting of building supports as the water table drops is an example of this that has been in the news recently. Chapter 91 protections should be extended, not rolled back.

• The involvement of the community in public processes that guide development is critical to ensuring that such development does not injure the public interest. Rolling back Chapter 91 makes it more difficult for community voices to be heard on matters that are often critical to the future of the community.

• We reject the Administration’s argument that DEP is short-handed and is too busy to pay attention to development on landlocked tidelands. A moderate increment of funding for DEP - tiny in comparison to the economic values at stake - would allow the more important licensing issues to be handled in a timely manner. Inadequate appropriations for DEP should not be used as an excuse for abrogating public rights and environmental safeguards.

For the above reasons we urge the Legislature to 1) reject H3757 or any other measure that permits blanket exemptions of landlocked tidelands from Chapter 91 and 2) ensure that appropriate Chapter 91 licensing be applied to all tidelands.

Reply