Martha's Vineyard Land Bank balks at permit fee
By Nelson Sigelman
Published: October 23, 2008
A drive along Middle Road offers glimpses of Martha's Vineyard's pastoral history, when much of what is now up-Island woodland was open field and pastureland for sheep and cattle.
The Martha's Vineyard Land Bank's Tiasquam Valley Reservation sits on the north side of Middle Road just west of the West Tisbury town line and near pastures where sheep, horses, and a pair of frequently photographed oxen graze.
On March 3, 2008, the state's Executive Office of Energy and Environmental Affairs (EOEEA) reviewed and approved a Land Bank management plan for the 109-acre reservation.
That was the last step before opening the property to the public, following a process that included a series of public hearings, the preparation of a detailed ecological inventory by Land Bank staff, and review by several state agencies within EOEEA.
The approved plan calls for the creation of a network of trails open to hikers, mountain bikers, horseback riders, and dog walkers, plus a nine-acre pasture to be leased for use by sheep, cows, and other livestock.
The location of the proposed pastureland was chosen in part because it abuts an existing pasture now under a nine-year lease to a neighboring farmer, who grazes sheep.
The off-season provides an opportunity to minimize risk of harm to wildlife and avoid summer visitors while work is being completed. Work is underway on the trails, and trailheads are in place, but not the pasture.
The proposed pasture would be created in a shrubland area considered habitat for four species of protected moths. The Land Bank must first obtain a permit from the Natural Heritage and Endangered Species Program (NHESP), an agency within the Massachusetts Division of Fisheries and Wildlife that is responsible for the regulatory protection of rare species and their habitats. The cost of that permit is $5,800.
The seven-member Land Bank commission, made up of one elected member from each Island town and a governor's appointee, said it is an unreasonable amount for one public agency to charge another public agency, when the project is in the public's interest.
Photos By Douglas Correllus
At a Land Bank commission meeting on September 8, the commissioners discussed plans for the Tiasquam Reservation. The question was whether to pay the fee and create the pasture or limit the Natural Heritage filing application to the planned trails and trailhead, at a much lower permitting cost.
According to the minutes of the meeting, the staff asked the commission if it wished to continue to defer the restoration of the pasture or pay the fee from its reserve fund so the pasture work might occur this winter.
"The commission voted unanimously to defer this project indefinitely," wrote James Lengyel, Land Bank executive director, "on the hope and expectation that this unreasonable pricing schedule will someday fall."
Conservation costs
Natural Heritage 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 generate and keep fees.
The revenue stream is intended to provide enough money to hire the needed staff to provide permitting reviews within a legislatively prescribed 60-day time frame.
Natural Heritage has review authority for any work planned on 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 plant and animal.
With some exceptions a landowner who plans to do work in priority habitat is required to file for project review. This holds true for a commercial developer, a Vineyard homeowner who wants to clear woodland, a nonprofit conservation group, such as the Sheriff's Meadow Foundation's work removing invasive species, or another state agency, such as the Land Bank, when installing paths on a new property.
For example, the cost of a MESA project review of any disturbance on a property of less than five acres is $300. A permit for a project exceeding five acres costs $1,800. A trail greater than one mile in length is $4,000 "per priority habitat intersected."
Landowners may 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 less than five acres will cost $600, and on property greater than that, the fee jumps to $4,000.
In the case of Tiasquam Reservation, the area the Land Bank intended to turn into a pasture now includes a four-acre portion of shrubland and five-acre portion of oak woodland. The existence of four species of state-listed moths means that any work would be considered a "take."
To create a pasture, the Land Bank would need to pay a filing fee and a conservation permit fee.
Tom French, an assistant director at MassWildlife and leader of the Natural Heritage Program, said in a telephone conversation with The Martha's Vineyard Times that when his agency was first set up to conduct reviews, one concern of business and trade groups was that they occur in a timely manner.
The permitting fees were intended to provide the funding to hire the needed staff, he said. It was funding the agency did not receive in tax dollars.
Mr. French said, "It was decided it made sense for the state agencies to pay for the reviews, because the money was not coming through the standard state government system. We have a tax schedule, and it is by design supposed to charge the same fees for municipal or state agencies as it does for corporations or private citizens."
He said the system does provide for exemptions in cases where work is done to protect or maintain a natural environment, if that work is consistent with the needs of the rare species that are on a specific property.
The other option is to ask for a reconsideration of the species inventory. If it can be proven that the species is unlikely to be found, then there is no take.
Kathleen S. Anderson of Middleborough is chairman of the Natural Heritage advisory committee, established in 1981 to provide the Division of Fisheries and Wildlife with independent scientific advice.
A well-respected ornithologist who has been active in land preservation and conservation volunteer efforts in Southeastern Massachusetts, Ms. Anderson said in a telephone conversation that she is familiar with the Land Bank and thinks it provides a wonderful conservation model for other communities. Asked why a public agency such as the Land Bank or a town must spend money that might otherwise be used for conservation purposes for permits from Natural Heritage, when in many cases the project had already undergone state review, Ms. Anderson said, "That's a really good question."
Peter to Paul
In a telephone conversation with The Martha's Vineyard Times, Mr. Lengyel said, "It is one thing for the public sector to charge the private sector, because that is customary, but for the public sector to charge the public sector to implement a public management plan for public land, adopted at a public hearing, that just isn't right." He added that the new review policy provides no benefits over past policy. Essentially, he said, the Land Bank now pays for what was once free, namely state agency review of filed plans, with no discernable new benefits or added expertise. "We are getting a permit," he said.
Because Land Bank properties by their very nature tend to fall within priority habitat, mowing a trail, putting in a trailhead, thinning trees for a view or creating a pasture, as was the case at Tiasquam, involves a MESA review.
Mr. Lengyel said the effect of the policy is that the Land Bank will not implement its management plans to the extent that it would have because the agency cannot afford to spend funds on those types of procedural applications.
Julie Schaeffer, Land Bank ecologist, said one of the Land Bank's goals is to support agriculture. "We have a farmer that has sheep and cows nearby," she said, "so it just seems like creating another field there is a much better idea than creating a field where we can't get a farmer to come in."
Ms. Schaeffer said although EOEEA had already approved the pasture, the Land Bank had to refile. She said there is no coordination among the departments.
Asked what the Land Bank receives for its $5,800, Ms. Schaeffer said, "You get a letter from them saying you can do it. You do all the work. MESA filings are huge. You have to prove that you will do the project in the most environmentally friendly way, based on the species that exist." For example, she said, that could require that someone walk in front of a person who is mowing a trail to make sure no box turtles are in the way.
The filing fee is not the only expense. Ms. Schaeffer said that in the last two years the Land Bank spent more than $2,000 on moth traps and other equipment and another $4,000 for the services of a moth expert with the Lloyd Center for the Environment in South Dartmouth to confirm the identity of the moths found during property surveys.
Too broad a brush
Conservation officials estimate that about 75 percent of the Vineyard falls within the NHESP definition of priority habitat. In some cases, a rare species does not need to be present on a piece of property, only the possibility that it could be or once was present may be enough to require that a landowner take appropriate measures to protect the listed species.
The costs, say Land Bank officials, add up and go beyond filing fees. They include studies and consultants.
Priscilla Sylvia of Oak Bluffs, a retired Island schoolteacher and chairman of the Land Bank commission, said the expense limits the variety of habitat the Land Bank would like to have on its properties.
Ms. Sylvia said the Land Bank commission does not want to be unreasonable. "I could understand a small fee for filing," she said. "But the rates have increased so dramatically that it precludes being able to create the varied habitat that is appropriate."
Chilmark Land Bank commissioner and sheep farmer Pamela Goff knows the value of good pasture. She said that some day added Island agricultural needs and an interest on the part of Island conservation groups in promoting opportunities for farming may make the cost of pursuing the pasture worth doing, but not now.
Ms. Goff, a former Chilmark selectman and member of the conservation commission, said, "One of the problems is that the definition of priority habitat is done with too broad a brush."
Ms. Goff said the focus is on moths, but other good things live in pastures. Doing nothing is also a management choice, she said, but it is a choice that will allow the habitat to revert to mono-cultural oak forest.
Ms. Goff said the Land Bank goes to a lot of expense to inventory a property prior to preparing a management plan. This includes purchasing moth traps and sending the moths off-Island for positive identification by experts in the field.
"We've gone to a lot of expense to do the inventories and the plans to start with, so it is already an expensive proposition to manage the properties properly," said Ms. Goff. "And I am sure Sheriff's Meadow has to farm out some of their work too. So doing it right is expensive, so to make it more expensive, sort of frivolously, is just counter-productive to the conservation movement.
