Environmental Act Could Impact Development

Michael Scott, an attorney with the Boston law firm of Nutter McClennen & Fish, says the changes, which became effective Jan. 1, now place the burden on property owners to prove that a development would not impact an endangered species. He says it also opens the door to new "not-in-my-backyard" challenges by project opponents that allows them to request a hearing before the state Division of Fisheries and Wildlife which could effectively stall development.

"Just as one does due diligence for hazardous materials, one will also have to do due diligence on endangered species," Scott says of the new regulations. The revised regulations, which constitute the first major changes to the Massachusetts Endangered Species Act since the 1990s, are more stringent than federal regulations, which define a violation as any action that kills or injures protected wildlife. Under the state requirements, nearly any habitat modification could be deemed a violation regardless of whether endangered wildlife was actually killed or injured, Scott says.

Buckley says the changes were developed by a panel that included members of the Massachusetts Home Builders Association and the local branch of the National Association of Industrial and Office Properties. "We believe the regulation changes will actually make the process more consistent and predictable for developers by making the procedures clearer and the standards both strong and transparent," Hardy says.

So far, says Buckley, there have been no challenges to the regulations since they went into effect earlier this year. In the event that problems do arise, Buckley says he has agreed to review the new guidelines after they are in place for a year.