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Thinking Outside the Box Turtle

Developers Feel Endangered by Environmental-protection Laws
Thinking Outside the Box Turtle

Massachusetts environmental and endangered-species laws

It’s not surprising that a state as progressive as Massachusetts has environmental and endangered-species laws that rank among the most stringent in the nation. Contractors and developers say those restrictions, both on the state and local levels, add unnecessary costs and delays to projects, damaging the health of the construction industry. Environmental officials, however, argue that those concerns are overstated, and that the laws do much more good than harm.

John Rahkonen tells of a bridge project that was shut down for almost a year.

“We were going to repair a bike path bridge on the Connecticut River in Deerfield, and we had to get to the substructure of the bridge,” said Rahkonen, owner of Northern Construction Service in Palmer. The company wanted to get at the pilings while they were exposed during the dry summer months, a job he said would take two days.

But the permitting process required to work in the river took two months, by which time the water had risen 10 feet, making the job impossible — and leaving the bridge in a precariously deteriorated state — until the following year. The job will be completed this summer.

“That’s the death of common sense,” said Rahkonen, who’s not shy about his displeasure with what he describes as an illogical, business-hostile maze of environmental regulations that hamstrings construction in Massachusetts. And he’s far from alone.

“We’re constantly being made aware of new types of regulations, most recently the preservation act,” said Joseph Marois, president of Marois Construction in South Hadley, referring to the Mass. Endangered Species Act, which protects the habitats of more than 500 different animals and plants — many more than federal law protects.

“The really devastating thing,” said Marois, “is that a lot of development projects in the area have been stalled for endangered species, such as box turtles. I think it has come as an abrupt shock to a lot of people who have actually had to stop projects.”

In a state known for green thinking, it’s perhaps no surprise that developers must contend with stricter sets of regulations than in other regions of the country. But increasingly, builders say the rules are unnecessarily time-consuming at best, and at worst are used as a weapon by environmental activists to prevent development they don’t agree with.

“Massachusetts has a very strict environmental lobby,” said Ken Vincunas, general manager and partner at Development Associates in Agawam. “And when it comes to endangered species, you can’t disturb those plants and animals or their habitats. Such drastic regulations put us at a competitive disadvantage, and Western Mass. is even worse because a lot of the areas of protection are out this way.”

“If a local DPW wants to go and dig out a culvert and replace it, it takes an act of God to get it done because of these regulations,” said Rahkonen. “And all the extra costs get passed on to you. It’s just ridiculous.”

Fair or Fowl?

The state’s Endangered Species Act, last updated in 2006, has borne much of developers’ wrath, but it generally doesn’t put the brakes on development, argued Thomas French, assistant director of the Natural Heritage and Endangered Species Program, an arm of the Mass. Division of Fisheries and Wildlife.

However, the law does require a process of review, and sometimes permitting, that can take months and run into the thousands of dollars.

“Seldom is a project significantly altered,” said French. “Certainly, having an area mapped [with protected species] is a red flag that requires it to be reviewed, and there are quite a few projects that have to amend their original proposal in order to be allowed to move forward, but most of the time, that’s quite doable.”

Indeed, from July 2005 through June 2006, the NHESP reviewed 1,679 projects; 71% were deemed to have no endangered-species impact, 21% posed easily resolved issues, and 8% were more serious issues that required the issuance of permits. From July 2006 through May 2007 (the June figures have not yet been released), the agency reviewed 2,375 cases; 75% posed no problems, 20% had easily remedied impacts, and 4% required permits.

“We think that’s a reasonable outcome,” French said. “If you’re one of the 4%, you might not like it, but generally speaking, it doesn’t hurt the economy or slow down development.”

But at a time when competition is high for prime projects, said Marois, such regulations — and their costs and delays — pose headaches that builders simply don’t need.

“A lot of people have property they’re planning to develop, and they’re encountering brand-new regulations that heretofore haven’t been here, on top of the myriad other regulations that are increasingly difficult to comply with,” he said. “Add to that the fact that there doesn’t seem to be a lot of projects out there, so seven or eight companies are bidding at a time, and profits are minimal.”

“Certainly, getting sites without encumbrances — not just in terms of regulations, but getting buildable sites at all — has been harder, which means we’re going farther afield and doing redevelopments,” Vincunas added. “It’s not as easy as it used to be to get sites that aren’t hilly, rocky, or wetlands-protected.”

Green Ink

It’s not just endangered species that pose difficulties for developers, said Rahkonen, noting that something as small as requiring hay bales and silt fences — even where water isn’t a problem — can add thousands of dollars to a municipal project. “That’s money that could be spent in schools, or for more blacktop,” he said.

“Another thing is the Rivers Protection Act. If you have any viable stream, even a trickle, you’re restricted within 200 feet of it. They call it a river, even though it may be an inch wide. We boilerplate laws on top of laws.”

French also mentioned that act — but as an example of how priorities can change in a society. “It used to be that people built along a river’s edge to have a good view of the river, and their houses would get flooded periodically,” French said.

“These days, our social values dictate that we don’t do that anymore. In the same way, we try to be understanding of the needs of developers while still protecting the public resources of species and their habitats.”

Furthermore, he said, the Mass. Endangered Species Act even allows for some minimal destruction of habitat in some cases where the plan cannot be altered — for instance, a necessary and unmovable access road to a housing development.

In those cases, however, a developer is expected to perform some long-term mitigation. That might entail setting aside a portion of conservation land in perpetuity, or funding research that could benefit the species in question. The law even allows for that mitigation to be conducted offsite, which makes it much more lenient than wetlands regulations.

French said some developers scapegoat the state agency, when many of their troubles actually occur on the local level. Vincunas agreed that local restrictions are often problematic.

“Some towns have become a little more sophisticated in what they’re looking for, and they demand a lot more from developers than they used to in engineering, drainage, and flood runoff control,” Vincunas explained.

“It’s not that these regulations weren’t already out there, but towns didn’t have the staff and the know-how to enforce a lot of things. Now, depending on the town, you may have a very sophisticated staff that wants it all done by the book, and then some.”

Rahkonen suggested local restrictions wind up driving the price of house lots higher, making it more difficult for a young couple to get into a home.

“If you go to the local Conservation Commission and want to put up a garage, you have to hold your breath,” he said. “But there’s no arguing with the green side, because the green side is always right.”

Environment for Change

French said the state’s emphasis on protecting endangered species is analogous to efforts in every state to protect wetlands.

“As a society, we have decided that wetlands have value, and the same is true with rare species,” he said. “The idea is not to stifle development, but to develop in a logical and planned way, so we can have our development but keep our species, too. You don’t want to lose out on either.”

Still, at a time when project costs for materials and labor have been on the rise, said Vincunas, the state’s environmental gauntlet is a tough added burden to bear, as are tougher requirements for handicapped access, signage, and fire codes.

“We used to put in sprinklers,” he said. “Now, you need sprinklers, monitoring, pull stations, horns, strobes — three times as much fire protection as you needed 10 years ago.

“It’s the same building we would have built 10 years ago,” he added, “but the construction is more difficult now, and product costs are mounting, all of which makes a new building a lot more expensive than it used to be.”

It also doesn’t help, noted Marois, that help is harder to come by in construction today.

“People are losing interest in this profession,” he said. “The whole complexion of the industry seems to be changing. We have to change, too. We have to become more proficient, minimize overheads, certainly take advantage of all the new computer technology, and even outsource more work to specialty contractors.”

Still, there’s plenty of building left to be done, even if environmental regulations have made it a more complex, costly proposition. So, no, the construction industry’s not going to the dogs.

But the box turtles seem happy.

Joseph Bednar can be reached at[email protected]

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