Dry is the new wet
* by Paul McMorrow
* Issue 9.15
* Wed, April 11, 2007
The most amazing thing happened at a State House hearing last week: We learned that sometimes, if you wish really hard, a pile of dirt can become the waterfront.
Public access to the waterfront is protected under Chapter 91 of the state?s laws, which enshrines a centuries-old guarantee of the public?s right to fishing, fowling and navigation along the waterline.
In 1990, the state Department of Environmental Protection (DEP) exempted land that used to be tideland, but has long-since been filled over (think: half of Boston) from these public access statutes. The thinking behind this was, if the Prudential Tower isn?t on the waterfront anymore, why subject it to a law that treats it like it is?
But in February, the SJC ruled that the DEP never had the authority to unilaterally exempt landlocked tidelands and filled wetlands from the department?s extensive waterfront-construction review process.
Governor Deval Patrick claimed that the decision threw a cloud over $4 billion in property that had been built under, or before, the exemption. It also meant that construction in Cambridge, the Back Bay and Fenway Park might have to pass through rigorous, needless public vetting.
Patrick, who?s been whacked lately for being a tax-crazed business-vampire, filed legislation that would reinstate the filled-tideland exemption and, you know, help promote local development. He was promptly whacked for his troubles.
At the hearing, Patrick?s environmental secretary, Ian Bowles, testified, ?We don?t need a waterfront licensing process to deal with impacts associated with properties that are not on the waterfront.?
"These tidelands belong to the public," countered John Moot, the lead plaintiff in the SJC case.
State Rep. Tim Toomey added that, by passing a bill that allows development to proceed as it has been proceeding for 17 years, we would be ?giving wetlands to developers rent-free.? Not that the asphalt wastelands of Allston qualify as wetlands anymore, but, you know.
Oh, you don?t? Then let?s check with Brighton State Rep. Mike Moran, who?s currently fighting with Harvard, an institution that wants to build some new buildings on filled tidelands: ?To ask us to give away our oversight, our authority, our seat at the table, if you will?to ask us as a legislature to do that, I think we?d be crazy to. For me, it ain?t about fishing poles or access to the water. It?s plain and simple leverage. You want as much leverage as you can possibly get.?
