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A limit on environmental appeals; Rules would restrict residents' power 

Local environmentalists say rules changes proposed by state regulators would cut ordinary citizens out of the democratic process and leave the environment vulnerable to ill-considered development projects.

They point to cases where citizen involvement has made a crucial difference in heading off developments, such as a plan to build houses on wetlands adjacent to Silver Lake in Kingston. The environmentally sensitive area ultimately became the Silver Lake Sanctuary, after residents appealed to the Department of Environmental Protection under the state’s Wetlands Protection Act.

The Department of Environmental Protection last month proposed changes intended to speed up environmental decisions that leave developers hanging for two years or more and imperil financing for worthwhile projects. The new rules would eliminate the right of any 10 residents of a community to appeal a DEP decision to the department’s administrative law division for a hearing before an administrative law judge. But state officials say the new rules would retain essential protections.

“There are many ways to participate short of an appeal,” said spokesman Bob Keough of the Executive Office of Environmental Affairs.

Acting on a directive from Governor Deval Patrick to make the wetlands appeals process more efficient, the DEP has proposed to limit who can appeal, require parties to present their evidence early in the proceedings, and set a six-month deadline for the appeal to be resolved.

State officials point to Hoosac Wind, a proposed wind farm in the Berkshires, as a project hung up for three years after a permit was successfully appealed to the department’s administrative division. The decision was overruled by the department’s commissioner and then taken to court by local petitioners.

Although the number of appeals has not been overwhelming in recent years – 13 so far this year, only four last year – wetlands appeals have been used for “other than environmental grounds,” Keough said, such as the desire not have a project built in the petitioners’ backyard.

But advocates say the rules changes would have a chilling effect on civic participation by ordinary citizens.

“The changes would eliminate an important part of environmental protection,” said Mettie Whipple, president of the Plymouth-based Eel River Watershed Association.

The right to appeal lends weight to issues raised by residents, who are often more knowledgeable about local terrain than regulators and developers, environmentalists say. The potential for an appeal may cause parties to make changes or accept conditions proposed by folks “on the ground.”

“The process makes everybody come to the table and say what the issues are and what the facts are,” said Tom Palmer, president of the Friends of the Blue Hills.

The proposed rules would restrict the right of appeal to residents who can show they would be “personally harmed” by a project, said Deidre Menoyo, a former DEP assistant commissioner who opposes the change. Demonstrating harm to the environment would no longer be enough. “It’s a hard standard,” Menoyo said. The old rules allowed residents who could gather at least 10 signatures on a petition to file an appeal.

Opponents say the change runs counter to the Wetlands Protection Act, which refers to wetlands as “public resources.” In the Silver Lake case, Menoyo said, citizen intervention protected an important public resource that provides part of Brockton’s water supply and became a 92-acre conservation area.

In another instance, the Friends of the Blue Hills four years ago backed a 10-citizen appeal of a proposal to fill a naturally vegetated area and build condos on the Quincy waterfront near Marina Bay. A DEP administrative judge stayed the project indefinitely, and the property was eventually purchased by Quincy for open space.

Appeals don’t always go the petitioners’ way. Two years ago the Friends of the Blue Hills appealed the DEP’s approval of the Massachusetts Water Resources Authority’s draining of a reservoir in the Blue Hills Reservation, contending that the agency should require the replacement of the lost wetlands acres. The group won its appeal, but the decision was reversed by the DEP commissioner, permitting the MWRA to go forward.

Even then something good came out of the process, Palmer said. “People know what’s going on,” he said.

A measure of the issue’s importance to the general public, say rules change opponents, is the nearly 500 comments on it posted to the governor’s website (devalpatrick.com). The issue is number three on the site’s “myissue” space, just behind marriage equality.

Keough said the strong public response is likely to cause at least one alteration in the proposed regulations before they go into effect (the final public hearing was held this month in Worcester). If adopted, he said, the new regulations will make it clear that groups such as regional watershed associations would still have standing to appeal DEP decisions – a right, he said, the new rules had never intended to question.

“We thought it was well-established in case law that established environmental organizations like watershed organizations would continue to have standing to file appeals,” Keough said.

By Robert Knox, Globe Correspondent

Boston Globe

19 August 2007

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial educational effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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