I sat down for about 45 minutes with Ian Bowles, the Patrick administration's Secretary of Energy and Environmental Affairs, last Friday. We talked about three subjects that have lit up BMG's comment sections lately: the Middlesex Fells, water withdrawal, and the wind energy bill. Secretary Bowles also gave a detailed answer to stomv's question, and had a few additional comments.
Many thanks to Secretary Bowles and his staff for taking the time to chat with me! Highlights and audio of our conversation are on the flip.
I started by asking about the controversy surrounding a development project in the Middlesex Fells. Check out earlier BMG posts for background, including some useful documents. The very, very short version is that a developer (known as Gutierrez) wants to redevelop the old Boston Regional Medical Center site which is inside the Fells. The project will, among other things, probably increase traffic inside the Fells. Previous administrations required review under the Mass. Environmental Protection Act (MEPA); however, as a result of changes to the project (including significant downsizing), Secretary Bowles recently opined that MEPA jurisdiction no longer exists. That has resulted in, among other things, a lawsuit being filed against Bowles, the DCR, and the developer by Friends of the Fells, several individuals, and the City of Medford, to require MEPA review. That lawsuit has not progressed beyond the initial stages.
I asked Secretary Bowles to give us some background and respond to some specific issues in the case. Here are some highlights:
Developer has downsized the project to the point where it didn't require any state permits. MEPA review only happens when a state permit is needed, so by avoiding the need for state permits, the developer avoids MEPA review - nothing Bowles can do.
Developer took advantage of a regulatory loophole whereby DCR can only require a permit if the project require a physical alteration (e.g. a curb cut) on a DCR road. Developer "exploited that loophole." Increase in traffic, however drastic, does not require a DCR permit unless it entails a physical alteration to the road, so increase in traffic does not trigger MEPA review.
DCR worked out a deal with developer so that certain roadway improvements would be funded by the developer.
A frustrating case for Bowles because developer was "successful in exploiting a loophole to avoid environmental review."
What changed in this project was that, under Cellucci and Romney administrations, the project was big enough to require state permits. It has now been physically downsized so that state permits are no longer required.
MEPA is driven by regulatory thresholds. If you don't exceed any of those thresholds, you don't need MEPA review.
With respect to the historical traffic levels, even if the developer did misstate historical traffic levels, it would not matter. The regulatory loophole means that even drastic traffic increase did not require a state permit. Traffic level is "fundamentally immaterial" to whether or not MEPA jurisdiction exists.
Going forward, the loophole has been fixed so that traffic increase on DCR roadway will now trigger MEPA review.
Audio of the Fells discussion:
Question 2 was the controversy over water withdrawal, which as you may recall caused some environmental groups to resign from an advisory board in protest over a regulatory change they did not like. The groups are now back on the board, but I thought it would be useful to ask generally about what the issue was and how it blew up. Highlights:
Water Management Act covers two types of water withdrawals: "registered water" is 80% of state water, which is generally grandfathered, i.e., withdrawals that were in place when the Act passed 20 years ago; 20% is "permitted water" over which state has full authority.
Goal is to develop stream flow standards that will avoid rivers running dry.
With respect to registered water (the 80%), Patrick administration is the first one to assert conditions over withdrawals. Authority to do that is controversial -- municipalities and water suppliers object, and the issue was argued last week before the SJC. Enviro groups support Patrick administration on this.
Winning the SJC case is vital to our ability to manage water, because it's very hard to solve the problem with just 20% of the water.
"Fundamentally what DEP did wrong is that they said, 'we're launching the stream flow stuff together with the Secretariat, we're going to sort that out, and trust us, we'll get this right in the end. Look at what we've done on water registrations and a lot of other things, and it'll all be OK.' And I think what you heard from the watershed groups is, 'don't change the definition of safe yield' ... I think some of the rhetoric had some hyperbole attached to it, but I think the fundamental point they were making was, as a legal matter, the definition of safe yield is important, ... we don't want to be in a situation where you're just doing an engineering definition of safe yield and then relying only on the stream flow standards.
"I think they have a good point. Candidly, it's one that was being worked out a couple of rungs below me, and certainly below the Governor. I heard about the issue first when Beth Daley from the Globe called, and I think one of the points Governor Patrick made in his meeting with the environmentalists is, 'give me a call, give the Secretary a call, give the Commissioner a call.' I think that's a fair point -- if you want to have a dialogue, let's have a dialogue. I think that it's on a good track now."
"I'm confident this is a situation of perhaps too many lawyers talking to each other, but some fundamental alignment on the big picture goal."
Audio of the water management question:
Next, I asked about the wind power bill noted here by EB3. My own knee-jerk reaction about this bill was to be concerned; on this one, however, upon further reflection and investigation, I now think that the bill is an unmitigated good thing, and that the folks complaining about it are raising classic NIMBY arguments, nothing more. Many of the state's major enviro groups agree -- see this letter (PDF) posted at Conservation Law Foundation's website -- calling the bill "a critical step in the right direction."
Secretary Bowles, unsurprisingly, is a strong supporter of the bill. He outlined the bill's provisions, and the reasons for them, in some detail. There's tons of information about the bill at this link. Here's the audio from our conversation:
I also asked for Bowles' position on the recent announcement of the Mass. Historic Preservation Officer that Nantucket Sound "is eligible for listing on the National Register of Historic Places because of its cultural significance for two Native American tribes," which could greatly complicate the Cape Wind project. Governor Patrick's position was pretty clear:
"I respect the Wampanoags, but this decision is ridiculous," Patrick said. "We are going to have to get serious about alternative energy installations where they make sense, and every environmental and regulatory review has concluded that Cape Wind makes sense."
Bowles, not surprisingly, agreed with the Governor's position. Audio:
Bowles responded at considerable length to stomv's question. Highlight:
"First, my hat's off to stomv who is a perennially excellent poster on your fine website with detailed analyses and questions."
He answered the whole, multipart question. Here's the audio -- I will leave it to stomv to sort through it! :-)
Lastly, Bowles wanted to pass the following along to the BMG community:
Patrick administration has launched the largest land conservation initiative in the state's history, but this hasn't been widely reported in the Boston media. This includes urban parks, agricultural restrictions, and habitat preservation.
We are making good on the promise to finish the reform effort at DCR. It's a historic accomplishment to have moved all the Charles River crossings to the Highway Department (now MassDOT) - DCR needs to be focused on its core mission of parks, beaches, and parkways.
