The SJC, considering MESA for the first time, endorsed DFW’s Priority Habitat regulations as being consistent with MESA and within the authority granted to DFW by the Legislature.  
For those unfamiliar with MESA, the statute was enacted in 1990 to protect rare plant and animal species (categorized as endangered, threatened, or of special concern) and their habitats.  The statute proscribes a number of activities in order to prevent human interference with protected species, including the broadly defined term “take” (essentially, harming a species or disturbing its habitat).

MESA authorizes DFW to delineate Significant Habitats for endangered and threatened species, in which development is essentially prohibited, and incorporates protections for affected property owners.  These rights include thirty-day notice, a public hearing, a habitat map recorded at the Registry of Deeds, the right to petition DFW for habitat purchase, and the right to appeal a decision to court to determine whether a compensable taking has occurred.  
DFW’s regulations also establish a Priority Habitat designation, which applies to all listed species.  The statute, however, does not provide for Priority Habitat designations.  
Projects in Priority Habitat are reviewed by DFW on a case-by-case basis, and the property owner must establish that the project will not result in a take.  If the landowner cannot prove that no take will occur, DFW may find a “conditional no take” (meaning that there will be no take so long as the project complies with conditions), or issue a Conservation and Management Permit so long as “there is a long-term Net Benefit to the conservation of the impacted species.”

In this case, plaintiffs William and Marlene Pepin own property in Hampden County, which DFW designated Priority Habitat for Eastern Box Turtles.  The Pepins requested reconsideration, but the agency confirmed the designation.  

The Pepins then appealed to an adjudicatory hearing, and lost.  The Superior Court affirmed DFW’s final decision verifying the Priority Habitat delineation on the Pepins’ property, and concluded that the Priority Habitat regulations do not exceed DFW’s statutory authority and are consistent with MESA.  The Pepins appealed once more, and the SJC took the case on its own initiative.

The Pepins argued that DFW’s Priority Habitat regulations are facially invalid because they limit development of private property but fail to offer the types of protections afforded by MESA to property owners affected by Significant Habitat designations.  Therefore, the Pepins reasoned, DFW’s Priority Habitat regulations are inconsistent with MESA and exceed the authority granted to DFW under the statute.

The SJC’s detailed analysis of MESA’s legislative history, and the resulting statutory and regulatory scheme, is a “must-read” for anyone hoping to understand the framework for protecting rare species in the Commonwealth.  

In rejecting the Pepins’ claim, the SJC ruled that the Priority Habitat regulations prohibit takes of listed species and “preempt otherwise irreparable harm to habitats,” thus achieving the two central purposes of MESA.  Without the Priority Habitat regulations, DFW “would be dependent on bringing suit only after harm had already occurred in order to enforce the take prohibition.”

Furthermore, the Priority Habitat regulations allow DFW to avoid “rely[ing] exclusively on the significant habitat provision of MESA, whose flat bar against development could prove unduly restrictive in some circumstances, as a way to protect habitat.”

Applying the principle that “statutory authority to act in one particular respect does not bar consistent action under general statutory authority,” the SJC found that MESA’s explicit protection of endangered and threatened species through the designation and regulation of Significant Habitat did not preclude DFW from protecting all listed species by delineation and regulation of Priority Habitat.

The SJC distinguished the impact to properties designated Significant Habitat from those designated Priority Habitat, and concluded that the severe statutory limitations on issuance of a permit to alter Significant Habitat warranted the protections afforded by MESA.  The same protections need not be extended to owners of property designated Priority Habitat, like the Pepins, because the Priority Habitat regulations “neither constitute a comparable bar against development, nor require comparable procedural mechanisms.”

Specifically, the Priority Habitat regulations “are designed to facilitate property development, albeit in an environmentally sensitive manner.”  The review process for projects proposed in Priority Habitat “can result either in a determination that development will not result in a take, in which case it may proceed unhindered; a determination that a project has the potential to result in a take, in which case mitigating conditions will be imposed on development; or a determination that a project will result in a take, in which case a more rigorous permitting process will be required before development can proceed.”  

The Court’s decision illustrates the substantial deference given to state agencies by courts reviewing the validity of their regulations, as well as the heavy burden on a party challenging an agency’s regulations.  

Practitioners should warn clients that for projects proposing work in Priority Habitat, conservation commissions may not issue an Order of Conditions until DFW has confirmed exemption from MESA, announced either a “no take” or “conditional no take” determination, or issued a Conservation and Management Permit.