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Conservation legislation hits stumbling block over provision allowing developers to pay to dispose of public lands

Elizabeth Saunders stands on a path in front of the Norumbega Reservoir in Weston.Carlin Stiehl for The Boston Globe

With days to go before the legislative session ends, House and Senate negotiators are locked in a dispute over a key piece of conservation legislation intended to protect public lands from development pressure.

The House version of the Public Lands Preservation Act, which environmentalists have championed for more than 20 years, would require anyone looking to sell or develop protected public greenspace to replace it with another comparable property. The Senate version, which has the support of the Baker administration, would create an alternative where developers or communities could set aside money to purchase property later when replacement land cannot be found in the community.

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Developers say the Senate “cash in lieu” provision would give them much-needed flexibility in circumstances where replacement public land cannot be easily secured.

But environmental advocates say the provision would incentivize public land development and lead to the loss of public land in some communities.

The land purchased later on with those funds “really could be anywhere, and that creates a big problem,” said Elizabeth Saunders, the Massachusetts state director for Clean Water Action.

She said it could particularly harm “environmental justice” communities: “If you take a piece of land and do not replace it with something that has equal community value, you’ve dealt another blow to an already overburdened community,” she said.

The legislation would apply to public land protected under Article 97 of the state Constitution, which can only be disposed of with a two-thirds vote of the Legislature. The state Department of Energy and Environmental Affairs has a longstanding “no net loss” policy requiring that in the case of land dispositions, replacement land is procured.

The legislation seeks to formalize that “no net loss” policy in statute. It would also require public notice and an analysis of alternatives to a proposed public land development.

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The state has sometimes allowed developers to make “cash in lieu” arrangements when it sees fit, but it’s not clear how often, or what the criteria has been for these exceptions. State environmental officials declined to provide a list of such instances requested by The Boston Globe.

The legislation is now in a conference committee, and negotiators are trying to reach an agreement before July 31, when the formal session of the Legislature ends.

Bill sponsors Senator James Eldridge and Representative Ruth Balser, who are serving on the conference committee, would not comment on deliberations.

Geoff Beckwith, the executive director of the Massachusetts Municipal Association, said he does not support the bill as a whole, describing it as a “solution in search of a problem,” but he said he strongly supports the cash in lieu provision.

He said the flexibility it offers is important in situations where municipalities find it difficult to immediately secure replacement land. For example, he said, a town that wants to build a school on municipal conservation land might have its eye on a parcel that would be an ideal replacement conservation property, but might take several years to obtain.

He said that without the cash in lieu provision, it would be “extraordinarily difficult, if not impossible” in some circumstances for municipalities to use public land to achieve another “positive public outcome” — like building that new school.

Beckwith added that situations where developers cannot secure replacement land are outliers, accounting for perhaps 10 to 15 percent of public land dispositions.

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Environmental advocates worry that codifying the cash in lieu provision could result in more developers requesting that route.

“You don’t want to make it easier to sell off public lands,” said Emily Norton, the executive director of the Charles River Watershed Association. “When it comes to climate change mitigation and adaptation, we need to be using every tool in the toolbox, including land conservation.”

Advocates said they are further concerned the government would either fail to secure replacement land using the funds or would purchase land in communities far from the disposed land.

Saunders, from Clean Water Action, said it would be a huge quality of life issue if, for example, the public park near her home in Dorchester was developed or sold and replaced with land a few miles away in the neighborhood, much less in another community.

She picked up the torch of pushing for the Public Lands Protection Act from her father, Phil Saunders, who passed away in May. The elder Saunders began calling for movement on the legislation after conservation land near his home in Weston where he went for walks was disposed of for a water tank.

“This provision has not been a part of the bill for the last 20-plus years,” she said. “At this late date, why would we add this?”

An Energy and Environmental Affairs spokeswoman wrote in an e-mail that the office supports the continued availability of an alternative mechanism for compliance with the “no net loss” policy, such as the cash in lieu system in “select circumstances.”

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The spokeswoman wrote these circumstances would include, at a minimum, no impact on an environmental justice population, management through a public process, the establishment of a legislative reporting requirement, the inclusion of a requirement that the funds be spent within a limited time period, and other enforcement measures.

But environmentalists aren’t reassured.

“There’s always some sort of replacement land available,” Saunders said. “You just have to be creative about it.”


Kate Selig can be reached at kate.selig@globe.com. Follow her on Twitter @kate_selig.