
LEN GENGEL
‘Vehement’ objections
Bay State homebuilders are causing waves over environmental regulations that would make it tougher to construct housing in areas near wetlands.
The regulations, proposed by the state Department of Environmental Protection, would change the process for determining whether a stream flows year-round and is therefore subject to the Rivers Protection Act, which was passed in 1996 to protect land near rivers.
The changes also would force builders or property owners to provide more evidence that a stream on a particular piece of land they own doesn’t flow year-round and would provide a more stringent definition of what constitutes a drought.
DEP released the proposed regulations in February after the issue was examined by a six-member technical advisory committee that included three representatives from the National Association of Industrial and Office Properties and three environmentalists. Since then, DEP has held several public hearings and requested written public comment, which it officially stopped accepting on March 29. NAIOP has expressed concerns about the proposed changes.
But officials at the Home Builders Association of Massachusetts say the group wasn’t aware of the proposed changes until they were announced in late February. The group argues that it was not given enough time to respond and has expressed concerns about not being a part of the committee that proposed the regulatory changes.
Len Gengel, HBAM president, has written two letters to DEP requesting a 45-day extension on the public comment period so that homebuilding experts can review the regulations. In the letters, Gengel also urges DEP to reconvene the advisory committee with two representatives from the homebuilders group.
“Our members strongly support fair, balanced and science-based environmental regulation,” wrote Gengel, a Rutland homebuilder. “But they also have a unique understanding about the practical and economic consequences that such policies may have on the availability and affordability of housing. That perspective should have been present in the technical advisory committee.”
As of last week, DEP had not yet decided what its response to HBAM’s request would be, according to a department spokesman.
Last week, Gengel emphasized that the homebuilders group has had “a very good working relationship with DEP.” But he reiterated that homebuilders will “vehemently oppose science that is based on political agenda.”
‘No Apparent Reason’
Gengel also fears that the proposed changes will only exacerbate the affordable housing situation in the Bay State. Homebuilders have repeatedly argued that strict regulations that aren’t based on “sound science” are leading to extra costs in housing construction and fueling higher home prices.
“This again will add to the cost of housing across the state of Massachusetts,” said Gengel.
At the heart of the dispute is what constitutes a year-round stream vs. a stream that doesn’t flow throughout the year.
Under the Rivers Protection Act, building is not allowed within 200 feet of a river. A river is defined in the legislation as a naturally flowing body of water that empties into any ocean, lake, pond or river that flows throughout the year.
Streams that flow throughout the year are referred to as perennial streams, and are subject to the law. Meanwhile, streams that do not are called intermittent and are not subject to the Rivers Protections Act.
According to the current regulations, a stream can be determined intermittent if it is dry for one day, but DEP officials want to change that to four consecutive days.
Further, DEP wants property owners, or a “competent source,” to provide very specific evidence that a stream is dry and doesn’t run for four days straight – namely “by field notes and by dated photographs or video.” According to NAIOP officials, the requirements are “excessive” and “onerous.”
NAIOP complained about the regulations in a March letter.
“We are seriously concerned that the department has strayed from the statutory definition of river for no apparent reason,” wrote Richard A. Nylen Jr. on behalf of NAIOP.
In the same letter, Nylen wrote: “The department appears to be seeking to significantly expand protection to areas that are intermittent streams and do not have enough water source to be considered a ‘river.'”
In addition to the homebuilders, the Massachusetts Association of Realtors and the Greater Boston Real Estate Board have requested more time from DEP to review the regulations.
Joy Conway, senior vice president of government and industry affairs for GBREB, said the homebuilders, Realtors and NAIOP are all working together and agree that more time is needed to understand how the regulations would affect property owners.
“It would be better to have these regulations on hold until everyone has a chance to look at them,” she said.