Priority habitat review raises bar for landowners
By Nelson Sigelman
Published: June 5, 2008
The Natural Heritage and Endangered Species Program (NHESP) exists within the Massachusetts Division of Fisheries and Wildlife. It is a small agency with a powerful regulatory reach.
Natural Heritage is responsible for the regulatory protection of rare species and their habitats and derives its authority from the Massachusetts Endangered Species Act (MESA) enacted in December 1990. Revisions to the law approved in 2005 strengthened the agency's review authority and allowed the agency to keep fees.
The change created a revenue stream supporters hoped would offset recent budget cuts. Initial estimates were that the new review fees would generate $300,000 to $400,000 annually for the program.
For the most part, conservation agencies and environmental service businesses that regularly deal with state agencies are aware of the changes in the regulatory landscape. Many private property owners are not.
Natural Heritage has review authority for any work that would be done on the properties that fall within the category of state designated "priority habitat." It is a designation based on the known geographical extent of habitat for all state-listed rare species, both plants and animals.
In more developed areas of the state that review authority is not a factor. But on the Vineyard, where approximately 75 percent of the land is considered priority habitat, Natural Heritage review of private projects may, even if not requested, by law be required.
For example, a private property owner who decides to brush cut and maintain a path through a woodland or meadow is required to file for project review. The same holds true for someone clearing trees to increase the size of a backyard.
Applicants, including towns and nonprofit conservation organizations must pay a filing fee that depends on the size of the area disturbed. The fee for an area less than five acres in size is $300; five to 20 acres is $1,800; and an area more than 20 acres in size or greater than one mile in length carries a filing fee of $4,000. In all cases NHESP has 60 days to complete its review.
Those timelines and filing fees can further be complicated if a project falls within wetland boundaries.
NHESP and local conservation commissions maintain updated maps of priority habitat - generally any land the agency considers habitat for state-listed rare species, based on records of state listed species observed over the past 25 years.
For example, according to the NHESP website, habitat for the Coastal Heathland Cutworm and the Pine Barrens Zale moths of "special concern," includes much of Edgartown and West Tisbury, land that is for the most part considered priority habitat.
Landowners can proceed with projects that may impact listed species, termed a "take" in conservation jargon, but must first apply for a conservation and management permit.
A permit for work on a property of under five acres will cost $600, and over that size the fee jumps to $4,000.
A permit may be granted if the impact is minimal, if there are no good alternatives, or if there is an accepted mitigation plan. For example, cut four pitch pines (moth habitat) and protect 12 pitch pines elsewhere.
What is a take? Pretty much everything, according to NHESP: "In references to animals to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat."
Land Bank knows rules
Martha's Vineyard Land Bank ecologist Julie Schaeffer said the Land Bank takes the review requirement into account whenever any work is planned on a property.
The process begins with a MESA information request. There is no filing fee for nonprofits. Upon request, NHESP provides rare species data on a specific property.
Ms. Schaeffer said she then begins data collection. Projects are then based on the data she finds.
For example, if NHESP says the Northern Harrier hawk is on the list. "Obviously Natural Heritage is going to want to know where it is nesting, is it nesting on the property, are there hunting grounds on the property, will your management impact the feeding areas or do you have a trail going by the nesting area."
Ms. Schaeffer said the inability of an applicant to provide that information could hold up approval.
TNC take long view
The Nature Conservancy (TNC), an international conservation organization, manages a number of public and private properties on Martha's Vineyard and has been particularly active in the effort to create native sandplain grasslands.
Matt Pelikan, TNC islands program director, said TNC is working with NHESP for the first time in order to write a detailed five-year management plan that will spell out all its anticipated activities in priority habitat.
Those activities could include mowing, prescribed burning, and using herbicides on invasive species. "We are responsible for assessing what risks of mortality that is likely to pose to protected species, what we are doing to mitigate those risks and what the long-term benefits in terms of habitat improvement are likely to be," he said.
Fire is sometimes used to clear woody vegetation that threatens to overwhelm sand barrens. Mr. Pelikan said the presumption is that if rare moth species are present the fire will kill them but the long-term benefit is that species that are associated with fire-dependent vegetation will thrive.
"Heritage's job essentially is to review the material that TNC and other conservation organizations submit as part of those management plans," he said, "and either accept it or suggest modifications to make it more acceptable."
Mr. Pelikan said that once the plan is accepted, TNC would only need to submit modifications. The benefit is it reduces paperwork on both ends and encourages organizations to think long term he said.
TNC hopes to have the plan approved by the end of the summer. In the meantime NHESP is aware of ongoing work, he said.
(The NHESP website is mass.gov/dfwele/dfw/nhesp.
A map of priority habitat is available at http://maps.massgis.state.ma.us/PRI_EST_HAB/viewer.htm)
