Updated 11 am, October 7
Six months after the state Natural Heritage and Endangered Species Program (NHESP) ordered Goodale Construction Company to stop clearing land it owns at its mining operation off Edgartown Vineyard Haven Road, the company is still negotiating with state officials on a mitigation plan that will allow it to continue mining its property for sand, gravel, and stone.
The land in question is designated on state maps as priority habitat because it is home to several species of protected moths. It is a formal designation that applies to two-thirds of the Island and imposes a set of regulatory controls that includes a requirement for NHESP review.
This spring, the company erected a chain link fence around the remaining part of the 100 acre parcel that has not been mined, an area between 20 and 30 acres. As they do every spring, Goodale’s employees cleared brush and trees in preparation to mine more materials. Neighbors in the adjoining Little Pond Road subdivision, concerned about safety issues and property values, appealed to Oak Bluffs selectmen over what they claimed was an unpermitted expansion of use.
Oak Bluffs selectmen referred the operation to the Martha’s Vineyard Commission, but the regional planning and regulatory agency declined to review the mining operation.
Neighbors also appealed on environmental grounds to the MVC, which contacted the NHESP. The environmental watchdog agency ordered Goodale’s to stop clearing its land until its review is complete.
For now, the company is still operating, but the time is approaching, company owners said, when Goodale’s will no longer be able to mine construction materials without clearing more protected land. Goodale’s is the only large-scale source of construction materials on Martha’s Vineyard and is used by nearly every contractor building on the Island.
Peter Goodale who operates the company with his father Jerry Goodale, declined to say how much longer the company can operate before running out of materials. In the meantime, the state order remains in force.
A costly process
As part of the process of creating a mitigation plan, Goodale’s hired a biologist to survey the remaining habitat on the 100-acre parcel. A land surveyor is currently mapping the amount and kinds of habitat remaining. Peter Goodale said the cost of those services is in the thousands of dollars. The company has hired a Boston law firm to represent its interests before regulators, and to negotiate with NHESP. He said his legal costs are already in the tens of thousands of dollars.
Peter Goodale is concerned that the time it will take to come to an agreement with NHESP may be even more costly.
“It’s going to be a couple of months before I even know what the time frame is,” Mr. Goodale said. “On the down side, it could take years. There’s a whole construction economy out here that depends on us to mine, never mind the landscaping companies that depend on us for material.”
Taking it to the top
Peter Goodale raised the question of environmental regulations with Governor Deval Patrick when the governor visited the Island in August. At a public event where the governor invited questions, he engaged the governor in a discussion about the protected natural habitat on the Island. He said the governor promised to follow up, and he did.
“I got a call from the department,” Mr. Goodale said referring to NHESP. “When they originally came out they said if we were grandfathered, that would allow us to keep clearing land, but they said we’re not grandfathered. But after the discussion with the governor, grandfathering is back into the discussion. They haven’t done anything, but it’s back in the discussion.”
According to Tom French, assistant director of the Division of Fish and Wildlife, any land mined before the designation of priority habitat would be grandfathered. But any expansion into the priority habitat would not be allowed, unless the entire scope of the project was covered under a permit.
Oak Bluffs has no bylaw covering sand and gravel mining, and no permit is required.
Sand and gravel mining on the site began in the 1930′s, and the Goodale family has owned the operation since the 1940′s. The Goodale’s land was first designated as priority habitat in 2003.
A balancing act
Natural Heritage is a small agency with a lot of clout. It 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.
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.
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.
A landowner who plans work that does not fall under one of 12 specific exemptions, in an area designated by the state as priority habitat, must file a description of the work with Natural Heritage for review and in some cases pay a permit fee.
Mitigation plans allow for a swap. For example, when the Martha’s Vineyard Airport cleared scrub oak on airport property it was required to set aside scrub oak across the West Tisbury Road as part of a mitigation plan to provide moth habitat.
The collision of environmental law and the economy is a balancing act for state regulators.
Massachusetts Executive Office for Energy and Environmental Affairs undersecretary Phil Griffiths did not want to comment on the specifics of the Goodale issue, but he said it can be difficult to make the case for conservation of natural habitat.
“Massachusetts has a vast, diverse natural resource base,” Mr. Griffiths said. “It’s part of our common wealth, we need to be sure to protect that.”
He said his agency bases its regulations on solid science, but the science sometimes conflicts with development.
“It’s always going to be some sort of compromise,” Mr. Griffiths said. “We don’t want to put a halt on development, that’s not what we want at all. You try to avoid the impact. If you can’t avoid the impact you try to minimize it. If you can’t minimize it, you try to mitigate.”
Mitigation plans often include preserving habitat elsewhere. For example, NHESP often negotiates mitigation plans that call for two acres of habitat to be protected from any future development, for every acre of habitat lost.
“The South Coast and the Islands have some pretty unique habitat. You can’t control where species are, and where they move,” Mr. Griffiths said. “In most case we are able to work with property owners. In most cases we’re able to come to a satisfactory agreement.”
Not far from Goodale’s is the 5,000 acre Manuel Correllus State Forest. In recent years, state conservation officials have worked to clear out dead red pines, the remnants of a failed effort in the 1930s to create a lumber plantation, as part of a plan to reduce the risk of fire and improve the variety of habitat.
Recently, the state Department of Conservation and Recreation presented the outlines of a plan to clear vegetation of the type that Goodale’s cannot clear, because of the NHESP order.
This article was updated to reflect corrections in the amount of land left to mine, and the kind of vegetation being cleared.