Tidelands votes

After months of quiet negotiations, the “tidelands” issue finally took
visible shape in the House of Representatives today.

The final complex votes were contested, positioning me on the losing side,
along with most of the Cambridge and Somerville representatives, a few
additional friends, some staunch environmentalists and the Republican
members of the House.

I felt it important to take a clear stand on these votes of local and
statewide environmental significance.   In the big picture, I believe that
we need to always err towards stronger protection of our coastline.  Climate
change will both diminish our coastline and render the wild and beautiful
portions more valuable to us.  But I feel that there are many factors which
will mitigate today’s losses.

Some months ago, I wrote to you about this issue.  The text of my original
message appears further below and offers background.

To summarize the issue, tidelands are the areas below the historical high
tide line.  Much of Boston and parts of many other coastal communities sit
on filled tidelands.  Under ancient law, the public possesses rights of
access to all tidelands.  There is a regulatory process, under Chapter 91 of
the General Laws, for giving away those rights of access in return for
public benefits, or, in the alternative, preserving them.

Some 17 years ago, the then Secretary of Environmental Affairs had issued a
blanket regulatory exemption for “landlocked tidelands” – filled tidelands
more than 250 feet back from the current water line and separated from the
water by a public way.

The City of Cambridge had several years ago approved a major project, the
Northlands project in Rep. Toomey’s East Cambridge district, over
neighborhood objections.  The state had exempted the property from tidelands
regulation as “landlocked”.  The neighbors sued and, this past March, won a
sweeping ruling that the administration had exceeded its authority in
creating the blanket “landlocked exemption” and that the authority to issue
that exemption belonged to the legislature.

The Patrick administration promptly filed a bill that would have had the
legislature validate the exemption and grandfather all projects built under
the exemption.

Most legislators agreed with grandfathering built projects and clearing the
title confusion for projects that had relied on the exemption.

There were two main questions that have occupied legislators over the past
four months:  What about the specific Northpoint project in Cambridge —
should it be grandfathered, reversing the ruling that the neighbors had won?
And, going forward, what should be the general regulatory regime governing
landlocked and other tidelands?

The Chair of the Environment, Natural Resources and Agriculture Committee,
Frank Smizik, did yeoman service to the House in trying to bridge
unbridgeable gaps among House members on these questions.  Speaker DiMasi
also waded in, giving considerable time and careful attention to the
differing views of the members, and respecting the local concerns of
members.

The bill that ultimately came forward did nonetheless grandfather
Northpoint, over the objection of the Cambridge delegation.  I voted in
committee against reporting out the bill in that form.

There were many twists and turns on the issue over the past few days.  The
critical vote came on the floor of the House today on a roll call on a
further amendment to Rep. Toomey’s amendment to the bill.  The further
amendment severely weakened his original amendment.  Rep. Toomey’s original
amendment would have carved Northpoint out of the general grandfathering
language, forcing it to through the Chapter 91 process as the neighbors
court victory mandated.  The weakening amendment passed on a 115 to 36 vote,
with me and most members of the Cambridge and Somerville delegations voting
No.

This vote is a disappointment for neighborhood activists in Cambridge.  The
good news is that the bill does include a technical change which will place
the neighbors in a much better position to ask for Chapter 91 review if the
project is, in the future, revised to the point where a new determination of
possible exemption is required.  In fact, this may occur.  The developers
have been fighting amongst themselves and have placed the project up for
sale.  The buyer may shift the project towards commercial away from
residential, to respond to the relative strengthening of the commercial
market.  This may trigger a new permitting process in which the neighbors
will have a stronger hand.

So, that is loss #1 and silver lining #1.

Loss #2 is that the bill includes the creation of a new bureaucracy around
tidelands regulation that will make new determinations of public benefits in
tidelands in parallel to Department of Environmental Protection
determinations of public benefits.  Both developers and environmentalists
are leery of the new bureaucracy and the Senate leadership has expressed
reservations about it.  Many of today’s proposed amendments, some of which
were accepted by leadership, related to this new bureaucracy.   I joined
Republicans in voting to remove the new bureaucracy from the bill.   After
that amendment failed, I ultimately voted against the bill, again together
with most members of the Cambridge and Somerville delegation, the Republican
members, and a few others.   That is loss #2.  Silver lining #2 is that the
final bill, after a likely conference committee, may not include this new
language.

A third silver lining is that the bill does strengthen the MEPA process as
it relates to tidelands and groundwater issues, a change which seems likely
to survive in a final bill.

Overall, a tough day in paradise.

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District