Victory led by untiring work of local conservationist Phil Saunders.
By Jess Nahigian, State Political Director, with thanks to Robb Johnson of the Massachusetts Land Trust Coalition and Elizabeth Saunders
Some 20 years ago, Philip Saunders Jr. watched the destruction of conservation land near his home in Weston. Little did his family know that this would be the first stone in an avalanche of advocacy that passed the Public Lands Preservation Act into law.
Phil lived in Weston with his children, where they would go walking, cross-country skiing, and hunting for salamander eggs in the vernal pools that inhabited the nearby woodlands next to a reservoir by his home. In the 1990s, the Massachusetts Water Resources Authority (MWRA) petitioned to create a covered water tank using the reservoir, sparking a debate over its location. Ultimately the decision was to place the tank under the wooded area which Phil loved, leaving the area where there had been a thriving ecosystem, uninhabitable. As is required by conservation policy, the MWRA replaced this land with another piece of acreage nearby that wasn’t nearly the same. Through this experience, Phil began to look into and study conservation land policy to thoroughly understand the value and vulnerability of conserved land in the Commonwealth.
He discovered that though there are approximately 1,200,000 acres nominally protected in perpetuity under Article 97 of the Commonwealth Constitution, which states that there must be “no net loss” of our public lands, the protection can be removed by a two-thirds vote of each branch of the legislature. This was happening more frequently than originally intended with 40 to 50 laws enacted every legislative session that removed this protection from parcels previously designated as protected by Chapter 97 “in perpetuity.”
Late Thursday evening, November 17, 2022, Governor Baker signed into law a bill that addresses this problem. An Act preserving open space in the Commonwealth (H.5381), also known as the Public Lands Preservation Act (PLPA), strengthens scrutiny of these deals by codifying key aspects of the Executive Office of Energy and Environmental Affairs' Land Disposition Policy, often referred to as the "No Net Loss Policy". This 1998 policy states that parks and conservation land subject to the protections of Article 97 cannot be converted to another use unless land of comparable natural resource and economic value is designated to replace it. Though an excellent policy, it has been variably enforced over its 24-year history and, without codification in the law, could have been ignored or rescinded at any time by a future administration.
Over the years, Phil, a proud environmentalist and member of Sierra Club and other environmental organizations, brought together a coalition of organizations, municipal officials, conservation commissions, and advocates to work tirelessly to pass the PLPA. Known as the “Godfather of the PLPA”, Phil [link to obituary] sadly died this spring without getting to see this moment. We know that passing this bill was one of his dying wishes.
Over time, the PLPA was streamlined into three key concepts:
- Providing notice to the public and the Energy and Environment Administration before filing legislation to replace land;
- Requiring an alternative analysis;
- Requiring replacement land of greater or equal acreage, market value, and natural resource value and comparable location.
Under the stewardship of former State Senator Pam Resor, and then Senator Jamie Eldridge, the PLPA passed the Senate in an environmental bond bill in 2018 but was not included in the final bill. In the following 2019-2021 session, the PLPA passed the house at 4 PM on the last day of the formal session. Unfortunately, because of the late hour, it never received a vote in the Senate. The bill was quickly refiled during the 2021-2022 session, speedily passing through the Committee on Environment, Natural Resources, and Agriculture (ENRA) and the House thanks to our allies. Advocates exercised their muscle to pass it through the Senate and finally, on April 21, 2022, an amended version passed the Senate.
But the amended version had some drawbacks. The new Senate bill would have made it easier for developers to bypass the PLPA's safeguards for Article 97 land by providing them with a waiver and cash payment (cash-in-lieu) alternative. Environmental advocates worried that including this loophole would significantly weaken the bill. Proponents argued, in part, that this would provide formality, accountability, and transparency to a practice that has been occurring behind closed doors for years. Clearly, the “No Net Loss Policy'' hasn't always been working the way many of us assumed it was.
A House and Senate Conference Committee was appointed to reconcile the differences between the House and Senate version of the bill, but was unable to reach an agreement before the end of formal session on August 1, 2022. Nevertheless, the committee continued to meet and has worked to reach an agreement on this key outstanding issue of whether and in what circumstances cash-in lieu should be permissible. Recognizing that no bill would pass that took this de facto option off the table, environmental coalition partners advocated for strong and specific constraints on the cash-in-lieu provision. We are pleased with the outcome. Most importantly, the bill requires that any cash payments be expended on comparable replacement land within three years of when the conversion is approved, thus ensuring the intent of the "No Net Loss Policy" is eventually met. The final bill also limits the circumstances under which cash-in-lieu can be allowed and requires annual reporting on the status of all such funds.
The benefits of protecting open space are numerous and widespread – from helping fight climate change, to improving the quality of life for people accessing those spaces, to supporting wildlife biodiversity and habitat. This victory will provide consistency, predictability, and enforceable regulations to ensure open space is preserved for future generations.
The Sierra Club thanks the Governor, members of the conference committee, and especially Senator Jamie Eldridge and Representative Ruth Balser for their long-term commitment to the PLPA. We also thank the large coalition of environmental groups, conservation commissions, municipal leaders, and advocates across the Commonwealth that contributed to this success.
Please thank Senator Jamie Eldridge (james.eldridge@masenate.gov) and Representative Ruth Balser (ruth.balser@mahouse.gov), the champions of this effort in the Senate and House, respectively.
You can also thank President Spilka (karen.spilka@masenate.gov), Speaker Mariano (ronald.mariano@mahouse.gov), and Governor Baker (Charlie.Baker@state.ma.us) for finally seeing this bill to completion.