Category: Areas of Practice

Wildlife in general and game species in specific are governed by many Massachusetts laws that will not be discussed here. Hunting and fishing programs in Massachusetts are many and varied; the Wetlands Protection Act protects Resource Areas for their wildlife habitat value; EOEEA using MEPA has designated hundreds of properties as Areas of Critical Environmental Concern (ACEC) partly for their wildlife habitat; the Commonwealth has identified numerous bio-reserves for special recognition, research and protection; and the state acquires and manages thousands of acres of land for wildlife habitat and many other complementary purposes.

Because it generates the most questions, issues, disputes and lawsuits, we single out here the Massachusetts Endangered Species Act (MESA). It protects rare species and their habitats by prohibiting the “take” of any plant or animal listed as endangered, threatened, or of special concern by the state Division of Fisheries & Wildlife (DFW). These categories carry different levels of scrutiny and restrictions.

The key to understand is that DFW  regulations broadly define Take: “in reference to animals to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat.”

It follows that it is very important to know whether and where a protected species may be on a particular piece of property under consideration. If a project falls within Priority Habitat of rare species and does not meet MESA filing exemptions, proponents must file with the Natural Heritage & Endangered Species Program (NHESP). As a result, contemplated construction or operations may be severely curtailed or eliminated.

A Project or Activity may be subject to MESA review if it is subject to MEPA review, and the DFW has credible evidence that a State-listed Species or habitat is within the area to be disturbed. A Project or Activity also may be subject to MESA review where new information on a state-listed Species occurrence is received by the Division, prior to issuance of a final Order of Conditions by Conservation Commission, any permit subject to a public hearing that was publicly noticed, or 15 days after issuance of a building permit not subject to public hearing.

The DFW Director may permit a Take for conservation and management purposes provided there is a Long-Term Net Benefit. The applicant must show  impacts are avoided, minimized, and mitigated consistent with the following performance standards: adequately assess alternatives for both temporary and permanent impacts, an insignificant portion of the local population would be impacted, and an agreement to carry out an approved Conservation and Management Plan providing for the Long-Term Net Benefit. An applicant who has made every reasonable effort to avoid, minimize, and mitigate impacts but cannot provide for the Long-Term Net Benefit on-site, may still be approved for off-site mitigation.

Any person aggrieved by a final agency decision may appeal delineation of Priority Habitat, review of a proposed Project or Activity in Priority Habitat, or a Conservation and Management Permit.

Massachusetts has closely and carefully protected rare species, by a program firmly grounded in science and law, under the auspices of a dedicated agency within the fish and wildlife department. The law and its administration have been upheld by the courts against challenges.

Our clients welcome our familiarity with MESA and its principles and procedures. We would like to counsel you on its provisions should you have the need.