Local regulation of natural resources: efficiency, effectiveness, and fairness of wetlands permitting in Massachusetts.

I. INTRODUCTION

In the last third of the twentieth century, governance of the environment, both natural resources and pollution aspects, has become a central public concern. Despite the popular tendency to blur these two sets of problems under the encompassing rubric of "environment," they raise distinctly different issues of design and critique in respect to appropriate legal management tools. The most comprehensive critiques of environmental agencies and laws have been directed at the pollution-focused Environmental Protection Agency, along with the Clean Air Act(1) and similar statutes.(2) However, the issues raised by the second branch of environmental law, that affecting natural resources, are quite different, and the questions that must be asked address different potential failures. The history of land and water governance is closely tied to land use law and property rights, and political theories of federalism and localism are traditionally important in this area, as is the competition between citizens with different interests. Ecology, not technology, is the dominant science, with the implication that technology-focused command and control regulation is essentially irrelevant to natural resource governance.

Although this Article attempts to answer questions about institutional design, it is important to stay focused on the substantive goals we are trying to achieve in governance of sensitive lands.(3) Law, policy, and institutional design must all strive for effective conservation of biodiversity, effective preservation of open space, and equity where circumstances require trading off private or public interests. It is a basic tenet of the democratic process to preserve minority interests, serve equity best, and preserve political legitimacy and legality.(4) The rise of the Wise Use and County movements attest to the cost of ignoring this principle.(5) Barton Thompson has suggested that, while the Wise Use movement is funded and directed by industry, failures to address rural citizens' real concerns about land and water management have created a responsive public to support the movement.(6)

Massachusetts has designed a system of wetlands regulation which appears to have achieved a measure of conservation while respecting core democratic principles. The key is the balance of statewide supervision with local implementation. The centerpiece of the system is the conservation commission, an appointed, unpaid board of five to seven citizens who are responsible for local natural resource policy and for permitting activities in the town's wetlands.(7) The local communities, the 341 cities and towns of the Commonwealth, review applications for permission to alter jurisdictional wetlands, collect data, communicate law and policy to their communities, plan open space in their jurisdiction, enforce wetlands law violations both criminally and civilly, and pass local ordinances to further regulate wetlands.(8) The state legislature sets the basic governing laws, notably, the Conservation Commissions Act(9) and the Wetlands Protection Act.(10) The state environmental agency hears administrative appeals of local permit decisions, issues regulations, and provides policy, technical expertise, planning for regional issues, and educational materials to the localities.(11)

Local governance of resources, like Massachusetts's, presents a conundrum: in its traditional American form, of which zoning is the quintessence, localism is heavily criticized for protecting local interests to the disadvantage of larger public interests.(12) On the other hand, our political culture gives great value to the town meeting form of participative democracy that still persists in New England. Both the Environmental Justice movement and the Wise Use movement, anticipating very different outcomes, favor laws that give local communities greater self-determination.(13) The larger sphere of the global environmental movement also extols the virtues of local control of natural resources.(14) However, many believe that minority interests are better represented when we regulate at the state or federal level, in James Madison's words, "Extend the sphere [of society] and ... take in a greater variety of parties and interests."(15) This Article will investigate how well the Massachusetts approach, which balances local participation within a state structure, achieves the (sometimes antithetical) democratic ends of legitimate majoritarian government and rational public-seeking government.

Besides the standard critiques of localism per se, any proposal for a modern environmental law must withstand the same efficiency analysis that has been directed at command and control regulation such as the Clean Water Act (CWA).(16) These critiques condemn the high public cost of courts and agencies, information gathering and processing, the high private cost of compliance, the ineffectiveness of incentives, and governmental failure in carrying out regulatory intervention. Government failures may, in turn, be due to information problems and incentive problems. Information may be limited or costly. Incentives may be distorted or inadequate, such as incentives for officials to seek their self-interest rather than the public interest, or to respond to pressure from private economic interests.(17)

Jon Kusler raises a somewhat different set of concerns that affect the choice of wetlands regulatory systems.(18) One issue is limitations on the authority of local and state governments to regulate through their inherent powers and those powers delegated to them.(19) Another is political acceptability, an important consideration in passing and implementing regulation.(20) Funding for the apparatus of regulation is an important element.(21) Regulatory systems for wetlands require expertise in planning, wetlands science, and engineering, not to mention law.(22) Kusler observes that "a strong local role" is important, particularly for inland wetlands, in part because of the opportunity to incorporate wetlands regulation into community land and water planning.(23)

Implementation of state permitting through local commissions avoids some of the problems exposed by critics of zoning abuses. The most important of these is the charge of exclusionary zoning, where a community seeks to shift undesired development to another community.(24) The subject could be low income housing, certain kinds of industry, or toxic waste. Where, as with Massachusetts wetlands regulation, the state sets a unitary standard, localities cannot create different standards; they can only apply them differently. Discriminatory application can be appealed as a substantive or procedural matter to the state. The only alternative route to differential local treatment is if a town has the clout to affect the state agency decision makers or the state legislature, where they are subject to limiting factors of scrutiny and pressure from other constituencies.

The literature on sensitive lands management does not squarely address potential abuses of this exclusionary zoning type. To the extent that the goals of wetlands regulation are to preserve public interests such as flood protection, water purity, and species diversity, conflicts with other public interests such as storage of toxic wastes may be reasonably resolved in favor of wetlands. The potential for abuse arises when there is a pattern of wetlands law enforcement that shifts burdens to disadvantaged communities, or when applications for certain kinds of development, for example, an affordable housing project for the poor, are treated discriminatorily. To my knowledge, there have been no accusations of this kind of discrimination by conservation commissions, but it may be a topic that warrants further research.(25) The ability of the permit appeals process to deal with such abuses is discussed in Part IV. Another point worth mentioning is that, to the extent that wetlands regulations are based on objective scientific determinations, they are quite different from zoning regulations.(26)

The most important criteria are rooted in three questions any citizen might ask. First, is this policy democratic? Second, is it efficient? Third, does it get the job done? In Part II, I address the question of efficacy by reviewing the status of wetlands in Massachusetts and draw conclusions about the effectiveness of conservation commissions. I also sketch the social and economic context of the state. In Part III, I describe the history and function of conservation commissions and I analyze their relationship to relevant laws, including state and federal statutes. Part IV answers the questions of democracy and efficiency by looking at interest groups involved in wetlands policy in the state, considering the nature of public participation, and applying public choice theory. Part V concludes with my assessment of whether this is an appropriate model for natural resource regulation.

Local governance of natural resources is effective, efficient, and fair when it is located within a state (or possibly national) statutory regime. Individual landowners have strong interests in natural resources, land, water, wildlife, and plants, that are fundamentally at odds with certain public interests. Conflicting interests may be the interest of landowners in excluding the general public versus the public's interest in access to beaches; or the interest of individuals and corporations in resource-consuming businesses such as logging, fishing, and real estate development versus the public interest in preserving open space and wildlife populations. Regulation seeks to balance these interests. Local regulation favors the landowner, who has influence in the community where his or her property is situated. State and federal regulation tends to incorporate the concerns of the general public, whose individual members often do not live in the jurisdiction where the resource is located. State and federal regulation also provide more due process than the local community has the institutional capacity or the political will to offer.

II. DESCRIPTION: MASSACHUSETTS

It is essential to understand the context in which Massachusetts wetlands protection is set. The social and ecological constraints and opportunities of a region have a major impact on the success of a particular legal regime. For example, a state that has a highly educated population, like Massachusetts, is far more likely to find among its citizenry the expertise needed to administer technically complex laws than a state where a significant part of the population has not finished high school. The economic and symbolic importance of resource dependent economic sectors, such as farming and fisheries, is extremely important in determining the political influence of those interest groups. The density of population and its distribution vis-a-vis sensitive lands bears on the urgency of protection and the influence of developers as an interest group. Citizens with a higher level of commitment to community interests (rather than personal interests) and participative democracy are more likely to staff citizen commissions and to do their job objectively.

A. Ecological

One of the most important criteria of success for the Wetlands Protection Act(27) and the conservation commission system is whether it has actually reduced the filling of wetlands and preserved species diversity in the state. While setting a baseline from which to measure change is extremely difficult, there is evidence that wetlands loss has slowed significantly since the passage of the Wetlands Protection Act.(28)

1. Wetlands Loss

Records of wetlands have been systematically kept only since the 1970s. The records that have been made do not describe the functions of the wetlands measured, such as diversity of species, so that the important element of degradation or conversion from one wetland type to another cannot be evaluated. Were we to seek data from the earliest history of the state, it would not help us compare its "natural" state and losses in species or ecosystems caused by humans, because Massachusetts has been impacted by human activities since before the arrival of European settlers.(29) William Cronon notes, in his study of the historic ecology of New England, that "... the land was less virgin than it was widowed. Indians had lived on the continent for thousands of years, and had to a significant extent modified its environment to their purposes,"(30) and "the period during which Indians had inhabited the area had seen climatic warming transform southern New England from the glacial tundra of 12,500 years ago to a series of forests composed in turn of spruce, white pine, and finally, by about 7,000 years ago, the oaks and other hardwoods typical of the forest today."(31) There is an increasing body of scholarly work evaluating the impacts of Native Americans on New England's environment, which might add some perspective to this issue. A certain amount of change would exist without human intervention, as some wetlands would become more or less dry, naturally becoming open water or upland over time.(32) An example of how these factors interplay is the rise and fall (and modern rise again) of beaver populations in the state, which affects wetlands formation: beavers dam streams and create swamps. Natives' and colonists' hunting patterns severely impacted beaver populations, nearly extirpating them in the state, and thus reduced wetlands formation.(33)

The loss rate of wetlands in Massachusetts can be derived from several studies, the most extensive being the National Wetlands Inventory.(34) About twelve percent of Massachusetts's land area is wetlands.(35) About half of these total wetlands acres are palustrine forested wetlands, and about twenty percent are tidal.(36) The closest estimate of original wetlands' extent, based on soil studies, suggests that freshwater wetlands originally encompassed 16.5 percent of the state's land; if true, this would mean that over 42 percent of original freshwater wetlands have been lost over the very long term.(37) According to the Massachusetts Audubon Society, "[s]ince 1954, wetlands in Massachusetts have been reduced by 50,000 acres.... In recent years, 42 species of plants have disappeared, and 75 more are threatened, along with 20 percent of the state's native fish species, 30 percent of its amphibians and half its reptiles."(38) A Fish and Wildlife Service study looking at a section of the Massachusetts coast found that about 0.6% of vegetated wetlands were lost from 1977 to 1986(39) and attributed most of the loss to highway construction and commercial business development.(40) This is close to the annual wetlands loss rate of 0.4% found by a USDA Soil Conservation Service study in 1978, and an annual decrease of 0.2% found in a study of the southeast region.(41) The situation in Massachusetts contrasts with the nation as a whole, where agriculture, not urbanization, is the chief cause of wetlands loss.(42)

There is some evidence that the Wetlands Protection Act has been effective in reducing the rate of loss of wetlands over the last twenty years. Against the backdrop of frenetic real estate development in the 1980s, which would be expected to increase the rate of wetlands loss--particularly in the Greater Boston area and on Cape Cod--there appears to have been a slowing of the loss rate. The four studies described above indicate consistent loss rates of about 0.2 to 0.6% annually from the late eighteenth century until the mid-1980s.(43) While from 1979 to 1991 wetlands loss has continued, the rate has slowed dramatically.(44) Although in the mid-1980s more wetlands were replicated than were filled, that trend reversed again in 1991.(45) Nonetheless, his figures indicate that the overall trend has been a dramatic reduction in the rate of wetland loss, from a net loss of 163,700 acres in the single year 1979 to 9275 acres over the entire six years from 1986 to 1991.(46)

The Wetlands Protection Act took effect at a time when real estate development was increasing rapidly in Massachusetts, and the stronger amendments were passed as development pressure increased further. We would expect the loss rate to increase during such a real estate boom. Instead, the rate held steady and may have even slowed, indicating that the Act was effective in controlling wetlands loss.

2. Quality of Wetlands Preserved

Even if there were data clearly indicating no net loss of wetlands since the Wetlands Protection Act (WPA or Act) was passed, it would not necessarily follow that the functional goals of wetlands preservation were being met. This is because there are many different types of wetlands, each performing varied functions and supporting different flora and fauna. When wetland types shift from vegetated wetlands to open water, as Tiner's data indicate they have in Massachusetts, and in the nation as a whole, major changes in the species supported will occur.(47) As Foulis and Tiner point out, this is a process that has not been well studied and it is quite likely that the actual status of wetlands, in terms of desirable functional characteristics, is even more troubling than initially appears.(48)

Another aspect of the problem is that the legal jurisdiction of the WPA does not map perfectly to the ecosystem itself. As an example, Dr. Bryan Windmiller's work on frogs suggests that the WPA does not encompass all of the wetland resources that are necessary to preserve wetlands wildlife.(49) The statutory definition of jurisdictional wetlands does not protect all vernal pools; isolated pools are less protected than those bordering water bodies, even though they may be more significant as habitat for amphibians.(50) Even if the pool itself is protected, the surrounding upland is not regulated in any way. If the upland outside of WPA jurisdiction is developed, the secondary effects of disruption could destroy the pool and the frog, toad, and salamander populations that depend on it. Therefore, if an important goal of preserving wetlands in the Act is to protect species diversity, the Act is failing.

Furthermore, there can be problems in how conservation commissions implement the Act. For example, few Wildlife Habitat Assessments were performed and of those, few were correctly carried out.(51) Consultants and commissions often made assessments at the wrong time of year, for example, in winter when most wildlife and plant life is dormant or when migratory species are not present.(52) These are significant problems in Massachusetts where a large percentage of bird species are migratory and winter renders plant identification problematic from November to April. Assessors also tended to use species checklists that focused on particular target species, rather than following the recommended procedure of assessing the land for its habitat potential to support a range of appropriate species. As a result, permitting decisions have often not been based on the quality of ecosystem function.

B. The State Overall

Massachusetts is the third most densely populated state in the nation.(53) The population, which was once concentrated around Boston, is now spreading out toward the central part of the state, with growth in that region predicted to double in the next sixteen years.(54) The preference for suburbs over more densely developed cities, combined with an increase in the number of second homes, has caused the use of land for housing to increase over ten times as fast as the rate of population growth.(55)

The overall picture is of a wealthy, well-educated, heavily urbanized state. Massachusetts is the thirteenth most populated state,(56) with 96.1% of its population in metropolitan areas.(57) It has the third highest per capita income and a median family income of $38,574, compared to the national median of $34,076.(58) Conservation commissioners represent every sector of the economic scale, but are concentrated toward the upper end with about one third of commissioners earning less than the median and about half earning more.(59)

Massachusetts has the largest proportion of people with college degrees or higher (27.2%) in the nation.(60) A recent study found that 80% of conservation commissioners have at least an associate's degree, and of those, 37% have some kind of graduate degree.(61)

The economy is heavily based on the service sector: 74.7% of personal income derives from service-related employment, compared to the national average of 72.2%.(62) The EOEA Annual Report from 1991 points out that important economic sectors, such as tourism and recreation, are dependent on the health of the natural environment.(63) They also note the link between the high quality of life which draws skilled workers to the state, creating its strong service-based economy, and the health of the state's environment.(64) The value of the real estate market increased by 409% between passage of the Wetlands Protection Act and 1989.(65)

The agricultural contribution to the economy is relatively small, but the importance of the cranberry industry has a major impact on wetlands. Agriculture in the state is under severe pressure from urban expansion; recent figures show the annual loss of farmland in New England due to conversion to nonfarm uses is about 80,000 acres per year.(66) Only 0.2% of personal income derives from agriculture (nationally 1.8%).(67) In 1986, the combined gross state product from agriculture, forestry, and fisheries was only $845 million, as compared to $25.4 billion from the service sector, and $25.1 billion from manufacturing.(68) This is significant because farmers have special rights to "convert" wetlands for agricultural use,(69) and because agricultural run-off of pesticides, fertilizers, and animal wastes are a major nonpoint source of water pollution.(70) There are two probable reasons for the influence of agriculture on wetlands regulation in a highly industrialized state. The first is the strong symbolic importance that farms have for the community as a cultural symbol of independence. The second is the fact that the cranberry industry benefits from a strong historical and cultural association with the state and the founding of the nation, and it comprises almost a quarter of agricultural gross state product in Massachusetts. Although cranberry bogs comprise only 3% of the state's wetlands, they are mostly located in Plymouth County, which has the second highest percentage of land area in wetlands.(71) Furthermore, cranberry farmers in Massachusetts produce about half of all cranberries grown in the United States.(72) Thus, an industry with a very high profile has a very concentrated geographic location and commensurate political clout.

The fishing industry, another symbol of Massachusetts, has long been in decline. As a result of overfishing, the catch has gone to less than half of what it was at its peak in 1980.(73) Although coastal wetlands and rivers are important nurseries for many commercial species, fishing interests have not been visibly involved in wetlands issues, in contrast to the salmon fishers of the Northwest, for example.

For some conservation commissions, permitting septic systems and preventing or cleaning up groundwater and surface water pollution from improperly designed septic systems are significant responsibilities. This means that the presence, or lack of, town sewage is quite relevant. The national average of households on public sewers is 74.8% while 72.9% of Massachusetts households have public sewer hookups.(74)

The period of time since the passage of the Wetlands Protection Act, 1972 to 1996, has also seen dramatic changes in municipal finance. In the 1970s, Massachusetts localities spent more per capita than all but six other states in the country; the state ranked third in the nation in state and local spending as a percentage of personal income, and those taxes were raised almost entirely through state income tax and local property tax.(75) In 1980, Proposition 2-1/2, a ballot measure which limited property taxes levied by local governments, passed.(76) Its effect is to limit property taxes to 2.5% of the full and fair property value, and the growth rate of property taxes is limited to 2.5% annually thereafter.(77) By 1982 local governments had lost, on average, about 14% in annual revenues.(78)

The 1970s were also a difficult time for the state's economy because of defense industry cuts and the oil embargo which combined to increase the unemployment rate dramatically. In the 1980s the state made a strong recovery which faltered by the end of the decade, but which has regained momentum in the 1990s.

Finally, in terms of electoral politics, Massachusetts is more liberal politically than the rest of the country, as would be expected of the only state to vote for McGovern for president: in the 1996 presidential election it went 61.5% Democratic (national: 49.2%), 28.1% Republican (versus 40.7%) and 8.9% Perovian (also 8.4%).(79)

Massachusetts's tradition of town meeting government, home rule, and citizen participation were instrumental to its role as the inventor of the conservation commission in 1957.(80) Just a few years later in the early 1960s, the director of the Massachusetts Audubon Society, Allen Morgan, conceived of the idea that coastal wetlands should be protected to conserve the fry of ocean fish that use them as a nursery,(81) Morgan's efforts, combined with those of Charles H. W. Foster, Commissioner of the Massachusetts Department of Natural Resources, the department's legal advisor Bob Yasi, and state senator Francis Hatch, resulted in the 1965 Hatch Act, the first freshwater wetlands law in the country.(82) The Hatch Act evolved into the Wetland Protection Act.

Although Allen Morgan was an environmental professional, the Society he headed was a prime example of citizen organization,(83) Founded by a woman in the late nineteenth century, the Massachusetts Audubon Society has grown into a strong voice representing citizen interests through lobbying, policy development, public education, land acquisition, and research. In 1896, Harriet Hemenway was so affected by an article describing the mayhem plume hunters committed against nesting birds that she initiated a campaign to convince women to forswear wearing the plumes on their hats.(84) After collecting more than nine hundred women to her cause, persuading and organizing them at society tea parties, she and her cousin invited distinguished members of the scientific community to join the organization, chose William Brewster, a distinguished authority on Massachusetts birds, as president, and named it after John James Audubon.(85) Within a year they were able to expand to five state chapters, and by 1900 they had succeeded in getting national legislation "prohibiting interstate shipment of animals killed in violation of state laws."(86)

Volunteers from affected communities have spearheaded the state's response to invasive vegetation which is choking many waterways. Although the Department of Environmental Protection has provided towns with grants of about $5,000 to $9,000 for research, management planning, and specific projects like dam repair, it is volunteer organizations like the Massachusetts Lakes and Ponds Association that have undertaken the chief responsibility for ridding wetlands of water chestnuts, purple loosestrife, fanwort, European buckthorn, phragmites, and the grass glyceria maxima, invasive species that supplant native plants but do not provide the same food and shelter for wildlife as the natives,(87)

III. DESCRIPTION: CONSERVATION COMMISSIONS

A. The Source of Authority

The authority of the conservation commissions derives from a delegation of the state police power to cities and towns.(88) American federalism balances state governments' authority to regulate with that of the federal government, within a framework of inherent and delegated powers. Courts have held that the U.S. Constitution delegates power to regulate to the federal government through the Commerce Clause,(89) the taxing and spending powers, the treaty power,(90) and the power to regulate the use of public lands. State governments possess inherent powers, which include the authority to pass laws such as the Wetlands Protection Act.(91) States delegate zoning authority, an aspect of the police power, to cities and towns; while Massachusetts localities use zoning as a wetlands preservation tool, planning boards, not conservation commissions, wield the power(92) In some states, including Massachusetts, the state constitution delegates "home rule" authority to local governments, allowing cities and towns to exercise broad police powers over local matters, including environmental and land use law.(93) Federal, state, and local governments wield these powers subject to federal constitutional limitations.(94)

B. History of Conservation Commissions and the Wetlands Protection Act

When the Massachusetts General Court passed the Conservation Commission Act, its intent appears to have been chiefly to create a single pro-conservation entity in each town. Elaborations on the Act, and the ongoing thrust of the supervisory state agency's policy continue to emphasize the role of the conservation commissions in "a continuing process of coordination and review at the local level."(95)

Although conservation commissions were originally conceived as a tool for managing land by information and acquisition, they have acquired an important role in the network of state and federal regulation of wetlands and waterways through subsequent legislation. The original enabling act, the Conservation Commission Act of 1957, made it possible for cities and towns to establish conservation commissions "for the promotion and development of the natural resources and for the protection of watershed resources of said city or town."(96) Watershed protection is of prime importance in Massachusetts, where the drinking water supply for 67% of the state's population comes from surface water.(97) This initial act led to the establishment of 351 conservation commissions in Massachusetts.(98) Unlike states such as California, where the existence of unincorporated land often leaves local governance to counties, cities and towns play the dominant role in Massachusetts.(99)

In the early 1960s, when the director of Massachusetts Audubon, Allen Morgan, saw Eugene Odum's seminal study relating food production in salt marshes to offshore fisheries, he joined forces with the Commissioner of the Massachusetts Department of Natural Resources, Charles Henry Foster, and together they succeeded in urging the legislature to pass the Jones Act in 1963.(100) It was the first legislation in the country to control draining and development in coastal wetlands.(101) The Hatch Act was passed in 1965, the first law in the nation that regulated freshwater wetlands.(102) In 1972, when many environmentalists were giving up on state and local regulation and strengthening federal laws instead, Massachusetts combined the two wetlands laws, expanded their jurisdiction to additional resource areas, and made municipal conservation commissions the primary permitting authorities.(103)

C. The Structure and Authority of the Commissions

Massachusetts's particular political history forms the legal backdrop of the conservation commission system. Home rule and participative democracy are strong traditions in the Commonwealth.(104) This means the citizens share a legacy of local control and local responsibility. The integration in the state's culture of both elements has led to generally successful delegation of state authority to localities. Regions which demand local control without committing to shouldering the concomitant burdens should reconsider the hazards of granting authority to decision makers who may not understand the necessity for objectivity, fairness (substantive and procedural), and serious study of the facts.

1. The Conservation Commission Act

The enabling act creates the structure of the commissions. The mayor, city or town manager, or selectmen appoint three to seven commissioners who serve for three years unless removed by the appointing authority.(105) It will be important to remember, for our future analysis, that commissioners are dependent on elected officials for their appointment, but once appointed they are independent for the duration of their term; a commissioner can only be removed for good cause.(106) The close relationship with municipal government and the community imposed by the local nature of conservation commissions makes them both responsive and accountable, limiting their ability to abuse their independence.

Commissions may hire staff and other employees to assist them.(107) There is no requirement that commissioners reside in the town where they are appointed.(108) In Cambridge, valued members of the commission have continued to serve for as long as two years during academic sabbaticals and after relocating to more rural towns in Massachusetts. There are several state laws addressing conflict of interest that govern who may be appointed, how they may be removed, and so on.(109) Commissioners are unpaid but they commit significant time to their work. According to a recent statewide survey, the average commission has seven voting members, holds public meetings twice a month, and spends nine hours a week on commission business. (110)

The Wetlands Protection Act originally allowed conservation commissions to promote and develop natural resources by conducting research, coordinating local groups interested in conservation, and producing maps and other publications.(111) Subsequent legislation empowered commissions to acquire interests in land, followed six years later by legislation authorizing commission funds to be paid as damages for taking property for conservation.(112)

A particularly significant responsibility which commissions may choose to take on is preparation of a conservation and passive outdoor recreation plan.(113) Commissions are directed to ensure that such plans are "as far as possible" consistent with both their town master plan and regional plans.(114) This emphasis on working cooperatively with other local and state agencies is repeated throughout the conservation commission system. The reason is practical as well as a matter of policy. Commissions are poorly funded compared to local, regional, and state planning departments and do not have the institutional strength or professional expertise of those organizations.

Commissions can own land "as may be necessary to acquire, maintain, improve, protect, limit the future use of or otherwise conserve and properly utilize open spaces in land and water areas within its city or town."(115) This is a particularly important and time-consuming responsibility for a commission to take on, as it involves acquisition, tax considerations, management, liability, and involvement with funding sources.(116) The commission's ability to acquire property rights through gift, bequest, or devise is subject to the approval of the city council or selectmen.(117) However, the commission may act on its own to purchase property rights, which can include fee interests or lesser rights such as conservation easements, if it has sufficient funds at its disposal.(118) It may also recommend that the city or town take interests in land or water by eminent domain, with the exception of agricultural land.(119) The management authority of conservation commissions over town conservation land includes setting rules and regulations and levying fines up to one hundred dollars for infractions.(120)

2. The Wetlands Protection Act

Conservation commissions administer and enforce the Wetlands Protection Act (WPA),(121) the Commonwealth's strongest tool for controlling conversion and degradation of wetlands and waterways in partnership with the Department of Environmental Protection (DEP) Division of Wetlands and Waterways.(122)

The WPA requires that any work that might:

   remove, fill, dredge or alter any bank, fresh water wetland, coastal
   wetland, beach, dune, fat, marsh, meadow or swamp bordering on the ocean or
   on any estuary, creek, river, stream, pond, or lake, or any land under said
   waters or any land subject to tidal action, coastal storm flowage, or
   flooding(123)

must be permitted and conditioned to protect those environmental interests.(124) While the WPA regulates removal, fill, dredging, and alteration in resource areas, discharges of industrial pollutants are regulated by DEP under the state(125) and federal Clean Water Acts.(126) WPA permits are issued through the conservation commission in the municipality where the site is located.(127) If the activity spans more than one town separate permits are required. Note that the WPA has been held to set only minimum standards.(128)

3. Other Related Laws

Conservation commissions administer or are affected by other local, state, and federal laws.(129) When the laws work smoothly, they provide a seamless fabric of protection for the ecosystem. Unfortunately, landowners have cause to see them as a sticky spider's web, ensnaring hapless applicants in redundant or conflicting requirements. Critics who are more sympathetic to regulation will interpret the redundancy as a "braces and belt" safeguard for fragile resources, and will be more concerned about the gaps between the laws that leave important ecosystem elements unprotected.

Starting with those closest to home, local bylaws protecting wetlands and related ecosystem elements are authorized, as discussed above, under home rule, and they may be administered by conservation commissions. Non-zoning bylaws are often preferred because zoning acts do not allow a conservation commission to administer zoning bylaws. Although some towns adopted such bylaws prior to the WPA,(130) most have been slow to take advantage of their ability to customize protection to their own needs, such as adding protection for aesthetic beauty, limiting exemptions found in the WPA, or requiring contractors to post bonds as insurance against any permit violation,(131) The challenge of stopping nonpoint source pollution, which has not been well regulated by the state or federal governments, may encourage more towns to draft bylaws. Ironically, given the important physical interchange between surface water and ground water, often mediated by wetlands, conservation commissions generally have little power over groundwater protection. Unless an aquifer is within a resource area, the commission may not be able to protect it, and the task is usually handled through zoning.(132)

Other relevant state laws include the Massachusetts Clean Waters Act, the Chapter 91 Waterways Program, and the Massachusetts Environmental Policy Act.(133) In their advisory and planning roles, DEP and the local commissions share interests in water-dependent projects in tidelands, great ponds, and waterways. The Chapter 91 Waterways Program embodies Massachusetts's public trust doctrine as applied to tidelands and ponds.(134) The public has the right to fish, hunt waterfowl, and navigate in or on the land between high tide and low tide, and on "Great Ponds."(135) Under Chapter 91, DEP regulates private landowners' use of these lands. Construction within Chapter 91 jurisdiction--which includes filled tidelands--requires a license from DEP.(136) Conservation commission jurisdiction overlaps with Chapter 91 jurisdiction, and coordination with DEP, Division of Wetlands and Waterways on permitting decisions is the normal procedure. Municipal zoning authority, which extends to three miles offshore, may also extend to tideland.(137)

The Massachusetts Clean Water Act is administered by the DEP, Division of Water Pollution Control.(138) Its goals include: enhancing the quality and value of water resources; establishing programs to prevent, control, and abate water pollution; setting surface and ground water quality standards; administering surface and ground water quality standards and discharge permitting; administering the sewer system extension and connection permit program; and issuing regulations for wastewater treatment plants.(139) Wetlands regulation is not part of the state Clean Water Act.

The Massachusetts Environmental Policy Act (MEPA)(140) provides for designation of Areas of Critical Environmental Concern (ACECs) which can affect conservation commissions.(141) ACECs negate some of the WPA regulatory exceptions, and they create an opportunity for commissions to focus additional local protection on particularly valuable sites.(142) Similar to the National Environmental Policy Act (NEPA), MEPA requires all government entities in the Commonwealth to "review, evaluate, and determine the impact on the natural environment of all works, projects or activities."(143) Unlike NEPA, it has real teeth which require government to "use all practicable means and measures to minimize damage to the environment."(144) MEPA also requires statutes to be "interpreted and administered so as to minimize damage to the environment."(145)

The two federal laws of greatest significance to conservation commissions are the Coastal Zone Management Act of 1972 (CZMA)(146) and the Clean Water Act (CWA).(147) Many CZMA policies are carried out through conservation commissions. CZMA provides funds for planning, administration, and related purposes, and a guarantee that future Federal activities affecting state shorelines will be consistent with the state programs.(148)

The federal CWA has two sections of particular relevance: the nonpoint source pollution requirements(149) and the section 404 wetlands permitting program. (150) The nonpoint source management program directs the states to "involve local public and private agencies and organizations which have expertise in control of nonpoint sources of pollution" to the maximum extent possible.(151) Commissions are both makers and implementers of nonpoint source pollution control policy. Massachusetts recently produced its guidelines on Best Management Practices (BMPs) for reducing nonpoint source pollution and conservation commissions played a critical role in the process. They will play an even more critical role in developing the local ordinances and review processes that will implement many of the BMPs. In many towns, probably most, the conservation commission is the only agency familiar with the environmental health of the community's wetlands, streams, ponds, and lakes. The water department may manage waterbodies to a greater or lesser extent as part of the public water supply, but its employees think in terms of human health, which is only one of the criteria of concern under the CWA. The Department of Public Works may have responsibilities for maintaining sewers, storm drains, and similar structures, but its skills are in construction, not in protecting water quality and habitat. City planners are also involved, but their emphasis is influenced by Water Department and recreational needs. There is no "science" department, except for the conservation commission. Only the conservation commission understands and advocates for the health of wetlands and waterways, in the modem ecosystem function sense.

Section 404 of the CWA uses a permit program to regulate the placement of fill in the navigable waters of the United States.(152) The Army Corps of Engineers administers the program in consultation with the EPA, the Fish and Wildlife Service, and the National Marine Fisheries Service.(153) However unlikely it seems, under Section 404 "navigable waters" includes marshes and peat bogs.(154) Section 404 recognizes the critical importance of wetlands to the purpose of the Clean Water Act: "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."(155)

Although in some ways the Section 404 program seems to mirror the WPA, there are important differences besides the permitting entity. The definition of wetlands, scope of jurisdiction, and allowable exemptions are handled differently. This leads to inconveniences for property holders, for instance when a landowner is obliged to apply for permits from both the Corps and a conservation commission, or when the same piece of land is considered a wetland by one agency and not by the other. There are also gaps between the programs; for example, isolated wetlands are not well protected under either state or federal law.(156)

The relationship between the behemoth federal agency and the Lilliputian local commissions tends to be cordial but not intimate. The practice of the Corps, to refuse to issue a permit until relevant state and local permits have issued, provides strong support for local authority.(157) However, exceptions do occur, as with the Central Artery Project, and when the Corps has permitted a project, it can be difficult for a commission to reject it. It can also happen that an applicant will try to avoid applying for a federal permit, and conservation commissions can be helpful to the Corps by requiring application for section 404 permit in the Order of Conditions.(158)

D. Procedure Under the Wetlands Protection Act

People undertaking activities that might alter wetlands must notify both the local conservation commission and the State Department of Environmental Protection (DEP).(159) The state agency sets the amount of the filing fee, but then the fee is shared between the local commission and DEP, to fund their administrative costs.(160)

In Massachusetts, "wetlands" is a term of art. As indicated above, it has much greater scope than implied by the dictionary definition, "land or areas (as tidal fiats or swamps) containing much soil moisture."(161) The Wetlands Protection Act specifically protects "any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, fiat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding," and further defines some of these terms by hydrology and flora, listing specific definitional plant species.(162) Note that "land under said waters" brings certain aspects of navigable waterways under the WPA permitting regime. In fact, the Charles River is the most prominent resource area that the Cambridge Conservation Commission regulates.

The WPA defers to local interests in control over land use, and serves both efficiency and consistency, by requiring applicants to obtain, or at least to apply for, all other local permits, variances, and approvals required for their projects before filing a "Notice of Intent" to do work in a resource area with the conservation commission.(163) The commission then determines whether the work described comes under the WPA, and holds a public hearing.(164) Notice of the hearing must be published in a local newspaper and abutters of the property in question must be notified by mail of the proposed action.(165) After the hearing, the commission may decide either to approve the project as is, deny it, or approve it with conditions. For the sake of efficiency, many commissions make their determination immediately following the presentation by the applicant, particularly if the matter is routine or if there has been extensive prior discussion of the project. The Order of Conditions is issued when the project is approved.

If the prospective applicant is unsure whether her activity is within the jurisdiction of the WPA, she may submit a "Request for a Determination of Applicability" to the commission.(166) The commission must respond within twenty-one days, and its decision is appealable to the Department of Environmental Protection.(167)

The entire permitting process takes at most six weeks, and it can take even less time if the commission is meeting frequently and can manage to make any necessary site visits. (168) Commissioners often make the determination of applicability by consulting maps that delineate wetlands in the municipality and assessing the project description. This is especially true as each community has its own typical activities, such as yacht clubs on the Charles River in Cambridge, private sewage in Acton, and breakwaters in the coastal towns on the Outer Cape. The terrain is usually well known because commissioners may pass the site every day, the applicants are often equally familiar with the land, and the impacts of the particular activity on the environment have been addressed before. Some commissions use standard conditions to protect the wetlands under their care.

In the final step of the process, when the work has been completed, the applicant files for a certificate of compliance.(169) If the work is done according to the final order of conditions, the commission must issue the certificate.(170) The final order of conditions is recorded on the property deed as a lien until the work is properly completed, and the certificate removes the recordation.(171)

E. The Role of the State Agency: Standard-Setting, Appeals, and Technical Support

The WPA allocates the standard setting and appeal functions to the Department of Environmental Protection(172), creating a system that increases the odds that the local commissions will function consistently and fairly. Unlike zoning, where a town has a much freer hand, the terms of permit review are set by "[t]he Act, the Regulations, DEP policies, and court decisions."(173) Unlike the independent commissions of the Progressive era, conservation commissions are not bodies of technical experts presumed to need discretion to shape policy.(174) Their discretion is restricted, although they still have considerable latitude in requiring permit conditions. DEP and others provide technical support and training to assist commissioners in carrying out their responsibilities.

The appeals process works by returning decision-making authority to the state if the local commission is unresponsive or rules in an objectionable manner. The applicant may appeal to DEP if the local conservation commission has missed its 21-day deadline, and failed to hold a hearing or issue a determination of applicability or order of conditions. Additionally, if any one of a number of people are displeased by the commission's action they may appeal to DEP.(175) Within seventy days of receiving the request DEP will make a determination of applicability and will impose any necessary conditions to protect the environmental interests of the WPA.(176) The long wait for a DEP decision, by itself, discourages frivolous appeals, although, there is a temptation to use the appeal process as an offensive weapon. In New England, the conventional construction season is roughly limited to the end of mud season (sometime in April) through the middle of November when the ground freezes hard. Many of these projects depend on getting into the ground and getting the work done in seasonable weather, and the appeals process delay of over two months can make that impossible. Delays in construction can mean unaffordable interest payments on construction loans.

This, of course, offers an opportunity for project opponents to use their power to appeal in an adversarial way. An opponent who has a weak position, one which would be likely to fail on appeal, may still find it worth going through the process in the hope that the proponent will be unable to carry the project for another construction season. Robert Kagan has criticized the American system of regulation as too susceptible to this kind of abuse.(177) We cannot determine the "correct" amount of legal procedure in any absolute sense, and the empirical inquiry to assess the current state of the conservation commission/WPA regime is beyond the scope of this Article. So, without trying to state whether Kagan's critique would be well-founded if applied here, I will simply suggest that the local process provided by conservation commissions may actually reduce litigation by developing local consensus (or revealing local resistance) at a fairly early stage of the process, and in a less confrontational, less expensive setting than a statewide proceeding.

By providing technical support to supplement the commission's capacity to address complex issues, DEP leverages the efficiency of the system. Instead of needing highly trained employees in each district, the agency can be a central resource for specialized information. The agency provides workshops and written or videotaped materials to commissions. Agency personnel are available to answer questions about interpretation of the statute, regulations, or policy, and to refer commissions to other agencies, as appropriate.

DEP provides essential components that make the entire regulatory (and policy-making) regime effective, efficient, and democratic. It restricts the discretion of the commissions and makes them accountable, thereby reducing the danger of arbitrary and biased decisionmaking. It provides statewide oversight, facilitating coordination across towns where ecosystems are shared between jurisdictions, and ensuring consistency in the implementation of the Act. It provides expertise that would be beyond the resources of most towns. The relationship between the state and local communities in fulfilling these roles is the most critical element of the regime.

F. Capacity of Conservation Commissions

Conservation commissions have the potential to address a ubiquitous challenge to resource managers: they have a fair prospect of "covering the ground." Successful laws depend on good enforcement, and good enforcement requires constant monitoring. One of the strongest criticisms of the federal wetlands program, for example, is that the monitoring and enforcement functions are too weak.(178) Local commissions benefit from five to seven commissioners, and possibly a staff person, who travel around the town in the course of their regular business, who talk with other citizens constantly, and who are accessible to members of the public who wish to report violations. Commissioners are sometimes hikers, or amateur or professional naturalists, who visit important resource areas on a regular basis. The fact that the regulators are interested residents of the town they regulate means that enforcement will be more effective and efficient than if it were handled by nonresident state employees.

The greatest potential weakness of citizen management of natural resources is the lack of training in law, engineering, and wetlands science. This has been a focus of concern for the MACC, who recently authorized a study of commissioner capacity.(179) The Robinson study concluded that there are gaps in all of the major knowledge areas necessary to commission function.(180) Combined with another finding, that lack of time for training is one of the top five challenges to commission effectiveness, the study presents a disturbing picture.(181) It is interesting to note, however, that surveys filled out by commissioners themselves showed that eighty-four percent of respondents felt that the commission had "the technical expertise to review Requests for Determination and Notices of Intent within a reasonable time frame."(182)

Both nonprofit organizations and DEP provide training for commissioners. The Massachusetts Conservation Commissioners (MACC) runs the most complete program, with workshops in wetlands delineation and specific policy and legal issues throughout the year in different locations around the state, culminating in a day-long annual meeting. The annual meeting is a combination of intensive

seminars, policy briefings by DEP employees, a trade show providing access to consultants and makers of exciting products like a coir mat that can be used to stabilize denuded sites, and a tremendous networking opportunity for commissioners from all over the state.

To a certain extent, commissions are aided by staff and expertise from other city departments. Twenty-six percent of commissions have part time staff, and nineteen percent have full time staff.(183) While thirty percent of commissions have lawyers as members, only thirty-four percent have paid legal counsel available to them (usually a city solicitor) and thirty-six percent have a town or city engineer with whom to consult.(184)

Volunteers play an important role in data collection, monitoring, enforcement, and lobbying. The Massachusetts Audobon Society alone benefited from 2,557 volunteers in 1994, labor valued at an estimated $623,000 and contributing to the society's efforts in land protection, advocacy, and education.(185) Elementary and high school students have taken an active role in protecting wetlands in Massachusetts, supplementing the cadres of professional experts and commissioners. The Vernal Pool Association of Reading Memorial High School successfully developed biological, hydrological, and geological data for about one third of the vernal pool certifications registered in the state.(186) These seasonal wetlands are critical for the survival of frogs, newts, and salamanders but are threatened by development. Certification requires data that is expensive to develop because of the brief period in the spring, just after the ground thaws, that vernal pools exist and such data would not be collected without the students' work.

IV. HOW ARE PUBLIC AND PRIVATE INTERESTS REPRESENTED IN CONSERVATION COMMISSION OUTCOMES?

A. Concentrated Interests and Diffused Interests

Interest group theory may shed some light on how concentrated private interests and diffused public interests interact within the current inefficient political and economic systems. Public choice theory casts political decision-making in terms of economics and game theory to explain why outcomes of political decision-making are inefficient, in the broad sense. Of the three overarching institutional requirements, efficiency, democracy, and efficacy, this approach is relevant to assessing the first two. By seeing where the theory of public choice predicts that systems will fail, we can assess whether conservation commissions function better or worse than the predictions. This type of analysis has generally been directed at national politics and its institutions; the example of conservation commissions can also provide a closer look at how effectively the theories explain interest group dynamics in a community context.

In Mancur Olson's view, certain types of interest groups form more readily than others,(187) with the ultimate outcome, in pressure group-driven democratic systems, that certain perspectives are over represented and others are underrepresented. He states, "[t]he unorganized groups, the groups that have no lobbies and exert no pressure, are among the largest groups in the nation, and they have some of the most vital common interests."(188) Where Olson's large group model applies well, the regime is inefficient because society may actually be better off with a different balance of goods and services than those provided by the dominant interest groups. So, for example, his model predicts that if most Americans want species diversity, but if there is no coercive force or positive incentive to compel or attract them to form an organization capable of exerting political pressure on behalf of species diversity, they will not spend the time or money to satisfy their interest. This phenomenon has undemocratic results because outcomes are based on the extrinsic factors of group characteristics, rather than on what citizens actually want. Olson, being an economist, emphasized the point that the results are also inefficient, because less of the "goods and services," which can include public goods like species diversity, will be provided than are demanded.(189)

An important nuance to Olson's theory of groups and collective action is his description of a certain type of small group, where "there is the strategic interaction among members characteristic of oligopolistic industries in which mutual dependence is recognized."(190) Resource-protective interests in local communities may be just such groups. If that is the case, the argument for local level natural resource regulation is strengthened by the advantage obtained when the self-organizing dynamic of properly sized groups comes into play.(191) Citizens may take advantage of the local conservation commission structure to organize around their interest in preserving wetlands and their associated values. We may be seeing a situation where

   the group is not so small that one individual would find it profitable to
   purchase some of the collective good himself, but where the number in the
   group is nonetheless sufficiently small that each member's attempts or lack
   of attempts to obtain the collective good would bring about noticeable
   differences in the welfare of some, or all of the others in the group.
   (192)

We may imagine that the good is some or all of the values provided by wetlands preservation, the group is the potential beneficiaries of those values in the town, and the organization is the conservation commission. Perhaps not just the actual members are included, but also past and prospective members, citizens who attend hearings, provide expertise, report violations, and organize appeals of decisions. An individual may stop participating, believing that the group will continue to carry on all of the work needed to make the regulatory system function, and leaving more of the work up to others. They, in turn, might start to drop out, not being willing to bear the increased burden. This is the collective action problem at work. However, in a sufficiently small community, group members may realize that this is the probable outcome of their failure to contribute, and they will continue to participate.

As I discuss in the following sections, many people participate in the activities of the commissions as members, volunteers, or community members. It is somewhat mysterious to hard-bitten utilitarians why they sacrifice so much time and talent in a seemingly altruistic pursuit. The answer may be that, in this institutional context, the size of the interest group is such that they perceive the consequences of their actions, and are constrained to participate.

An initial question in considering whether public choice analysis (which is linked to interest group analysis) applies, is whether conservation commissions are political in the sense meant by public choice theorists. Much of the literature is concerned with legislative behavior. Legislatures are distinguished by the fact that they are elected by constituents, they have fixed terms of office and then they must again compete for the public vote. Further, they function as representatives and so are enabled to employ their discretion in making decisions. Commissioners share all of these characteristics except that they answer to a more limited constituency, as discussed below.

Policymakers can offset focused interest group pressure by creating surrogates for the diffuse collective interest. They can designate certain government actors as representatives of that interest, or they can design processes and institutions that encourage diffused interests to agglomerate and become more focused. In Massachusetts, the prior existence of public interest organizations, such as the Massachusetts Audubon Society, the League of Women Voters, and neighborhood associations, may offset the influence of well-organized and more concentrated economic interests like developers, realtors, and industries.(193)

Legislatures and agencies can also encourage participation from public interest organizations by establishing public notice and comment periods, and public hearings; by allowing broad standing to sue; and by soliciting their input in rule making and statute drafting. This enhances the ability of public interest surrogates to represent their constituency effectively.

In Madisonian terms, the representative to the deliberative body takes the role of the surrogate for the public interest. (194) However, public choice theorists consider the representative a mere seller of legislation to interest groups; they do not see the role as a truly deliberative one. (195) If the surrogate has a large constituency, many interests will compete for her support, ensuring that she is not captured by any one interest and that she represents a rational balance of her constituency's interests. If she has a small constituency, she will have a more personal relationship with its members which will make her more responsive to local interests, although she may be more subject to special interests. If her term is short, she will be more responsive to those who appoint or elect her. However, a short term may lead to frequent turnover with the result that the office holder does not have time to become fully informed on the issues. Short terms with high turnover may also lead the representative to take a bargaining approach to the decision-making process, rather than an information-seeking, public interest focused deliberative approach.(196)

Some aspects of this description of legislators also applies to commissioners, but in fundamental ways it fails to fully describe commission behavior. The key distinction is that commission membership is by appointment, not by election. Therefore the incentives motivating legislators are different from those driving conservation commissioners. Most significantly, commissioners have far less concern about reappointment than legislators have about reelection. In addition, the only benefit of the job is the opportunity to influence the decisions of the commission; therefore, prestige and power are limited to a narrow sphere, and there is no direct economic return. Thus, the commissioner's decisions are more removed from the personal benefits that flow from interest group satisfaction than a legislator's, and it may be expected that a commissioner will be less likely to indulge in self-interested, rent-seeking behavior.(197) The high level of participation' on commissions by professionals in related fields may be an indication that one of the real personal benefits of membership is professional advancement.

The public choice theorists emphasize the flee-rider aspect of interest group formation.(198) The theorists predict that significant public interests will be underrepresented, because the benefits to each individual are small, the cost of organizing is high, and it is impossible to exclude individuals who do not bear part of the costs of the benefits.(199) Mancur Olson's work suggest that despite this problem groups representing the public interest may form where there are shared ideologies, well-recognized threats, historical factors, coercion, or additional benefits of membership.(200)

In Massachusetts, there is strong evidence that shared ideologies and historical factors have led to formation of an unusually high number of organizations representing the public interest. The historic background is one of community responsibility, represented by the Hemenways, Charles Eliots, and numerous others mentioned in the course of this Article as founders of conservation organizations, parks programs, and so forth.(201) The shared ideology is linked to a strong literary tradition which is best known through Henry David Thoreau, who, in the words of Lawrence Buell, "is today considered the first major interpreter of nature in American literary history, and the first American environmentalist saint."(202)

The problem of focused interest group pressure can be addressed in policy design by creating surrogates for the collective interest by designating certain government actors as representatives of that interest, or by designing processes and institutions that encourage diffused interests to agglomerate and become more focused in the kind of groups that Olson describes. The prior existence of public interest organizations, such as the Massachusetts Audubon Society, the League of Women Voters, or neighborhood associations, may offset the influence of well-organized and more concentrated economic interests like developers, realtors, and industries. Government can encourage participation from public interest organizations by establishing public notice and comment periods and public hearings, by allowing broad standing to sue, and by soliciting their input in rule making and the drafting of statutes.

Bernard Rosen raises several questions that bring out "capture" of an agency, and that might apply to conservation commissions as well.(203)

   Have the principal officials of an agency developed such a cozy
   relationship with a special group of citizens-those they are called on to
   regulate or assist-that as a practical matter they may have become more
   accountable to them than to other citizens who will also be affected by the
   agency's decisions? Does the agency seek out the views of representatives
   from all citizen groups that may have an interest in its actions and give
   them careful and impartial consideration in the course of developing
   policies and programs? Does the agency establish mechanisms that will
   encourage representatives from a wide spectrum of interested citizens to
   contribute their views on the operations of its programs to facilitate
   necessary and timely changes? Do agency officials recognize that secrecy is
   the archenemy of accountability, and that citizen participation and
   confidence in government are more likely to result from openness, with
   secrecy as the exception?(204)

Rosen answers these questions by noting that:

   [c]itizen confidence is enhanced when the policies and decisions of the
   bureaucracy provide for equal treatment under the law, when they support
   each person's right to life and liberty, when they respect individual
   privacy, when they honor due process, and when they move us toward a more
   just society. When our government bureaucracies behave in this manner they
   help preserve our noblest ideals and enlarge the consent of the
   governed.(205)

Rosen says that bureaucrats are motivated to initiate change by "self-preservation ... commitment, professional pride, and eagerness to advance."(206) Do these motivations work differently on citizens? Certainly his quotation of Irving Kristol is equally apt for both groups, "How can we realize the potentialities of big government without surrendering ourselves and our goals to the mercies of little men."(207)

According to another test that Rosen applies to bureaucrats, enhancing citizen confidence in the administrative institutions of government,(208) local commissions clearly score higher than federal or state bureaucrats. Part of his standard focuses on whether citizens feel that the bureaucrats listen to their opinions or care about their concerns.(209) Because citizens can always directly contact their commissioners formally at public hearings and informally on the street or by telephone, there is no question in most towns(210) that commissions will hear what their fellow citizens are concerned about. Because commissioners find the friction of living in the same community as their constituents is much greater than the average bureaucrat experiences, they are likely to be more responsive than other unelected officials.

This does have its dark side, of course, in that local officials may therefore be reluctant to put regional interests ahead of local interests. That is where the supervisory state agency's role is very important.

To answer the question of whether citizens are confident in the institution, Rosen also asks whether the requirements promulgated by the bureaucracy are reasonable, are they sensibly applied, are they applied with both honesty and competence, and do they contribute to "the citizen's unending search for identity and personal fulfillment?"(211) The notion of "capture" (control of the agency or commission by a particular interest group) is implicit in these questions.

Rosen's perspective is contrary to Kagan's, discussed below. While Kagan is concerned that extensive public information, participation, and legal standing to sue to enforce statutes is expensive and politicized,(212) Rosen believes that those very things contribute to public confidence in the institutions of government.(213) Who is right seems to depend on whose ox is gored. For members of regulated groups that are often on the receiving end of public scrutiny and suit, public participation is expensive and frustrating. For defenders of the more diffuse public interest, it offsets the innate American suspicion of government.

Robert Kagan criticizes our present environmental laws on the grounds that many of the provisions that are intended to guarantee public participation, such as citizen suits, EISs, and public hearings, are instead the source of excessive legal costs, undue delay that may kill beneficial projects, and extortionate behavior.(214) There are subjective values involved in this assessment. One is the judgment that, at some point, the cost becomes "too much" and the benefit is "too little." It is hard to imagine how data to prove such a point would be collected, and answers to questions such as "was Project A a beneficial project?" depend on whose interests are considered. Another is the valuation of democratic processes, quite separate from their utility in increasing the efficiency of a project, which Rosen strongly defends. One is left with an impressionistic evaluation of the legal process that is dependent on the perspective of the analyst and therefore may not be terribly helpful.

B. Who Are the Interest Groups?

Who would we expect to constitute interest groups? The parties most affected by conservation commission activities, especially wetlands permitting, are those whose property interests in jurisdictional wetlands are restricted by the law and those who might be affected by flooding, loss of aesthetic values, loss of recreational opportunities, and loss of conservation values when jurisdictional wetlands are eliminated, improved, or created.

The interest groups described are quite amorphous, but they can be fleshed out in some cases with names. There are not many farmers in Massachusetts and their contribution to the economy is modest, but as in Europe, they are disproportionately powerful political players, as described.(215) The Massachusetts Audubon Society also is a repeat player in almost every aspect of conservation commission activity. It represents conservation interests in both the broad sense of global environmental protection through its migratory birds programs, and in the local sense through its tireless lobbying, educational programs, and research efforts on behalf of open space protection, land trusts, and biodiversity.

As Professor Sax noted in his assessment of the National-Environmental Policy Act, environmental laws that require studies and reports fuel the development of professional expertise to provide them.(216) The Wetlands Protection Act (WPA) certainly fosters the environmental consulting industry, adding biologists to their roster of scientists and engineers. The alignment of these professionals is difficult to predict. The natural tendency of consultants to interpret data through the eyes of their clients can be offset by the credibility that professional neutrality earns. Consultants are repeat players, and a well-respected consultant's opinion will carry great weight with commissioners, smoothing the passage of a permit application.(217) In fact, commissions sometimes hire consultants, either at their own expense or on the commission's behalf but at the applicant's expense. Finally, distortions in data collection and interpretation may be corrected by the commission's own efforts to delineate and evaluate the resource area, as well as by the expertise of local citizens, bird watchers, and organizations like Massachusetts Audubon Society or the Friends of Belle Isle Marsh. If the commission does not act on its own, "any person" can file a Request for Determination of Applicability, which requires the commission to visit the site in question, and state in a public meeting whether and why work taking place is subject to the WPA.(218) This can be a way of triggering a delineation of wetlands boundaries, which may bring in a wetlands biologist.(219)

The 1986 amendments to the Wetlands Protection Act display a striking demonstration of which groups have political muscle--or in a less cynical view, who the agency fairly believed to be interested parties--by establishing an advisory committee to supervise the promulgation of implementing regulations.(220) The non-government members are as follows: Massachusetts Home Builders Association, Massachusetts Association of Conservation Commissions, Massachusetts Audubon Society, a "university wildlife biologist," National Association of Industrial Office Parks, and a general contractor.(221) The government members include two representatives from conservation oriented departments, such as Office of Coastal Zone Management and Department of Fisheries, Wildlife and Environmental Law Enforcement, and one member traditionally more sympathetic to developers from the Department of Public Works.(222) A six-person Scientific Advisory Committee was established to develop specific data about the characteristics and functions of resource areas in the state, and that information was incorporated into the rulemaking process.(223)

The amended regulations issued in 1983 similarly incorporated input from "the development and environmental communities, civil engineers and wetland scientists," as well as general contractors, utilities, the Greater Boston Chamber of Commerce, land use consultants, the Executive Office of Communities and Development, and the Attorney General.(224) A smaller committee formed to resolve differences between these parties that included a wetlands scientist from the University of Massachusetts, a civil engineer, an environmental attorney, the general counsel for the Home Builder's Association of Massachusetts, a senior staff member from DEP, and the Director of the Division of Wetlands Protection.(225)

C. Access to Conservation Commission Membership

The constitution of conservation commissions by citizens, under Bernard Rosen's analysis, increases accountability by informing state agency personnel of citizens' views, by informing the citizen commissioners of the circumstances and policies that influence the state agency's actions, and ultimately by leading "to better government and increased confidence in it."(226) It is remarkable the extent to which the citizens of Massachusetts have overcome what Rosen considers to be the two chief drawbacks to long term citizen participation: "reconciliation of natural points of conflict between agency responsibilities [the broad public interest] and [narrower, shorter term] interests of citizens,"(227) and the difficulty working citizens have in devoting substantial time and the conflict between their free time and normal working hours.(228)

1. Statutory Access

Any resident of a town may be appointed to the conservation commission. As noted above, a member who moves away may continue on the commission. The only other restrictions on appointments are "provisions of the city charter," town by-laws, and state conflict of interest rules.(229)

Thus, the real constraints on membership are the appointment process and motivation to join. Appointments may be made by the mayor, city manager, selectmen, or town manager.(230) The appointing authority is likely to act either in the spirit of equity and efficiency, or to serve narrower interests of favored groups. One way to test the extent to which interest groups capture commissions through the appointment process is to look at the actual composition of the commissions. There are legal restrictions that prevent a commissioner from voting on any issue for which he/she or his/her family member receives financial compensation,(231) and commissioners must file financial disclosure forms in many towns, including Cambridge. The MACC Handbook recommends that "a Commissioner should abstain from voting on any issue where possible benefit or interest could be inferred."(232) This is a higher standard than the legal one, intended to prevent the appearance as well as the fact of improper influence. However, the Handbook also states, "the mere presence on a Commission of a realtor or large landowner (to name two common situations) does not in itself constitute a legal conflict."(233)

2. Actual Membership

The incentive to serve on a conservation commission must at least offset the burden of twice monthly meetings and long hours spent on site inspections, training, and other commission business.(234) Recent findings indicate that most commissioners are strong environmentalists.(235) A survey of commissions statewide compared environmental beliefs and pracrices of commissioners to other study groups.(236) Responses indicated that the vast majority (eighty-nine to ninety-three percent) of commissioners value conservation areas for future generations, habitat, and water supply.(237) In North Carolina, a smaller fraction, seventy to eighty-six percent, of a study group drawn from the general public rated those three factors "very important."(238) On scales that evaluated pro-environmental world view and proactive environmental behavior, commissioners indicated high levels of environmental concern.(239)

The literature does not discuss why people do commit time and energy to activities that do not benefit them economically nearly to the extent that it discusses why they do not. This makes the question of why so many commissioners appear to behave altruistically an interesting one. While anecdotes are not data, my experience serving on a conservation commission suggests some of the reasons, and provides an impressionistic hint at their motivations. I, myself, initially became interested because I perceived the town I lived in as an extension of my home. Without a river, or a forest, or a lake, or a field of my own, the public landscape was my estate. My sense of entitlement to use the space was accompanied by a sense of responsibility for stewardship and a quite selfish desire to ensure that it would remain available and pleasant for my use. After I joined the commission, I found the company of other commissioners enjoyable: we were a group of quite different people in age, race, and experience, but we shared an intense interest in topics like combined sewage overflows, railway bridges, and the number of canvasback ducks wintering on the city reservoir. Not the least of the satisfactions of participation was the chance to talk about subjects that most of our acquaintances found tedious, at best. As with many of my colleagues, once I became involved in a particular issue, and had invested time in learning about it, I felt proprietary and wanted to see it to the end. Given the long drawn-out nature of many development projects, and the basic truth that any piece of open space will be infinitely subject to assault, that kind of commitment effectively leads to lifelong membership on a commission. And, indeed, our commission had two members who were appointed when it was first formed, providing us with invaluable institutional memory, as well as expertise. Another member moved to a rural town but continued to serve for almost a year in Cambridge, and was always ready to come to a meeting or consult on the telephone when we needed his advice. For other members, the commission was an extension of their work as planners, wetlands scientists, and engineers. Two of our commissioners were amateur naturalists who enjoyed the opportunity to apply their knowledge. I believe all of our members shared my sense of stewardship.

Nonetheless, environmental interests are not the only ones represented on commissions--and each commissioner is quite likely to act out of a myriad of motives. In many towns, the incentive for non-environmentalists to participate in commission work is weak because there are not enough commission decisions which result in concentrated economic gains or losses to outweigh the cost of participation. A sample of the issues considered by the Cambridge Commission in the fall of 1993 includes: requests from two yacht clubs regarding dock and pier reconstruction; a request from the state highway department for an amended order of conditions to install a water main as part of the Central Artery Project; a request for determination of applicability in order to carry out minor construction at a school; an initiation of the permitting process in order to remove an abandoned gas station, and an application to allow installation of a fiber optic cable conduit that would pass over a brook. Of these, the only item that directly impacted economic gains of a private entity was the fiber optic cable conduit installation. While public agencies, such as the highway department, do have strong interests that bring them into frequent contact with the commission, they are barred from attempting to exert direct influence by both statutory restraints and political considerations.

If commission membership is responsive to interest group pressure such as that exerted by real estate developers, public choice theory would predict that developers would have more representation on commissions in towns where development pressure is high. One survey of commissions statewide suggests that the Southeast Region, which includes Cape Cod, does have a significantly higher percentage of commissioners with real estate backgrounds compared to other regions.(240) Cape Cod is under heavy pressure to build new housing for summer visitors and year-round residents, increasing the likelihood that a developer's personal cost/benefit calculus will indicate a profit from becoming a commissioner.

Preserving the environment for future generations and protecting the public water supply are interests that appear most strongly to motivate a person to participate as a commission member. Individuals that have more focused interests will compete for positions on commissions when those interests are in play. However, development interests do not appear to have dominated the Cape Cod commissions. The appointing authority--town manager, selectmen, or mayor--is the most likely source of this balance between environmental interests and development interests. The Conservation Commission Act simply grants to the city or town manager, selectmen, or mayor the authority to appoint commissioners.

Although managers, selectmen, and mayors are often proponents of new construction projects as a way to increase tax revenues, they are also vulnerable to pressure from constituents who may have concerns about water supply, open space, or flooding. Mayors are directly beholden to the electorate, and their choice of commissioners is likely to be the most responsive to the will of the voters. Selectmen are also directly elected, but the responsibility for appointing commissioners is shared, so each select-man is less personally vulnerable to the wrath of the electorate. City managers are employed by contract, which insulates them from direct citizen pressure. Managers are more likely to have professional training than mayors, which also suggests that they may be less susceptible to brute interest group pressure than their political, non-professional colleagues.

The data supporting this conclusion is suggestive rather than conclusive, but it indicates that interest analysis may be a good predictor of commission dynamics only where the interest group pressures on the appointing authority can be determined. A hard look at potential concentrated interests within the jurisdictions governed by commissions is a useful step in assessing how other states could adapt the use of local commissions for natural resource management.

D. Access to Conservation Commission Hearings

Conservation commissions have stringent public hearing requirements, resulting in potentially wide public access to project proposals and commission deliberations. Bernard Rosen suggests criteria for effective public hearings:

   To be reasonably effective, public hearings must be announced sufficiently
   in advance not only to make it possible for citizens to formulate their own
   ideas and to plan for attendance, but also to allow time for citizens to
   discuss the issues among themselves and for those with common points of
   view to make joint and complementary presentations ... [p]ublic hearings
   are apt to be better attended if the locations, dates, and times of the
   hearings are most convenient for those whose views are sought.(241)

The state Open Meeting Law requires that any local commission meeting must be open to the public, with a limited exception for executive session.(242) Except in an emergency, notice must be provided at least forty-eight hours in advance by filing a notice with the town clerk and posting a notice in the clerk's office or on the town's "principal official bulletin board."(243) The Wetlands Protection Act additionally requires a public hearing within twenty-one days after a commission receives a permit application, with notice to the public via a classified advertisement in a newspaper of general circulation in the town, and notice by mail to the applicant, town board of health, and town planning board.(244)

In general, it is easier for the average citizen to have access to, and interest in, a hearing when the announcement is published in the local paper, the hearing is in the town rather than the state or region capital, the parties are members of the community, and the sites are local. On the other hand, professional organizations that would otherwise appoint staff to monitor official publications and locate their offices near centers of political authority will find it more difficult to participate in hearings that are locally announced and held in scattered locations. In large states like California, the problem of participation in local hearings would be exacerbated compared to Massachusetts, where the farthest distance from Boston to a town is three hours.

Because of the local nature of the issues, the cost of participating is small for citizens in the community. No special expert representation is necessary, the information is geographically accessible at the town or city hall. There is often a paid staff person whose work load does not prohibit explaining information to the public, and whose job description often includes that very function.

The Wetlands Protection Act was recently amended to require that:

   Any person filing a notice of intention with a conservation commission
   shall at the same time give written notification thereof ... to all
   abutters within one-hundred feet of the property line of the land where the
   activity is proposed ... including, but not limited to, owners of land
   directly opposite said proposed activity on any public or private street or
   way, and in another municipality or across a body of water.(245)

Notice to abutters encourages participation by informing potentially affected parties of the work before it is commenced and giving them an opportunity to express their support or opposition and to provide any other information they have to the commission. Because of the notice requirement, applicants are more likely to contact their neighbors, discuss the proposed work, and iron out problems before a public hearing. This is likely to increase the efficiency of the process and reduce more serious conflict later.

E. Appeals

The right to administrative appeal or judicial appeal protects parties whose interests may be damaged by a commission decision, and broad standing to appeal encourages public participation.(246) Appeals can be made administratively or judicially under authority of the Wetlands Protection Act (WPA),(247) or judicially under the authority of the United States Constitution.(248) The Massachusetts Supreme Judicial Court acknowledged the court's interest-balancing role in a case affirming the Commonwealth's authority to regulate for the benefit of fish and wildlife:

   In this conflict between the ecological and the constitutional, it is plain
   that neither is to be consumed by the other. It is the duty of the
   department of conservation to look after the interests of the former, and
   it is the duty of the courts to stand guard over constitutional
   rights.(249)

The WPA limits the right to appeal a commission's action or non-action to parties with a direct interest in the geographic location or statewide responsibility for the resource:

   [T]he applicant, any person aggrieved by said Commission's order or failure
   to act, or any owner of land abutting the land upon which the proposed work
   is to be done, or any ten residents of the city or town in which said land
   is located ... [or] [t]he commissioner of environmental protection or his
   designee [may appeal to the Department of Environmental Protection].(250)

Standing to enforce against violations of the Act is broader than standing to challenge a decision of a conservation commission. Actions to prevent or remedy violations of the Act may be brought by "the attorney general, the commissioner, a city or town, an owner or occupant of the property which may be affected by said removal, filling, dredging or altering, or ten residents of the Commonwealth ...."(251)

Local bylaws are not subject to the supervision of the Department of Environmental Protection (DEP). As independent acts of the locality, they must be appealed to the Superior Court. DEP policy is to stay requests for adjudicatory hearings on WPA permits when a local permit has been denied.(252) If the denial is not appealed to the court, it becomes final and the WPA Notice of Intent expires.(253) Thus, to the extent that municipalities do establish their own more stringent wetlands regulations, the forum of review shifts from the executive branch's administrative review to the courts. This is likely to increase the expense of appeals, and it may shrink the group of those with standing to appeal.

F. SLAPP Suits

Possibly the greatest threat to conservation commissions and similar forms of citizen participation in government is the strategic lawsuit against public participation (SLAPP suits). The University of Denver Political Litigation Project identified a pattern of litigation strategy designed to chill public participation in government by seemingly disparate suits alleging defamation, business torts, process violations, conspiracy, constitutional and civil rights violations, and other violations of law.(254) While these suits provide a means for interests dissatisfied with the existing process to achieve their goals, they are an anti-democratic tactic. Like lawsuits and administrative appeals intended simply to delay a development project until it is too expensive to carry on, the real goal of a SLAPP is not the remedy prayed of the court.

Suing opponents to punish or discourage public participation in public affairs became increasingly frequent in the last twenty five years, and conservation commissions are particularly vulnerable.(255) Pring and Canan estimate that thousands of people are "SLAPPed" each year, and they speculate that hundreds of thousands of citizens may be discouraged from exercising their First Amendment rights by the threat of being sued.(256) The problem they identify is that:

   SLAPPs are an ideological attack against egalitarian principles of citizen
   participation; they use the tactic of inflated stakes ($100,000 to
   $100,000,000 claims, attorney fees, time demands, and psychological
   insecurity) to drain citizen resources, energy, and commitment, thus
   "chilling" continued citizen involvement in public affairs and threatening
   our entire concept of a participatory democracy.(257)

Their study found that real estate development and land use issues are the most frequent causes of SLAPPs, and local government is the level at which they usually occur.(258) Although two-thirds of SLAPPs are dismissed, and most of those that do go to trial lose, they cost defendants in time and money.(259) The average suit takes three years, with some going as long as thirteen years.(260) Pring and Canan believe that SLAPP plaintiffs "frequently" achieve their specific goals, even when they lose the suit, and they found that the chilling effect on SLAPP targets was measurable.(261) Although SLAPPs may succeed in chilling public participation, they pose risks for the SLAPPer. A real estate developer who feels unfairly treated by environmentalists' procedural manipulations is better-advised to seek sanctions or to take other similar steps against her opponents.(262) Now that SLAPPs have been well publicized as anti-First Amendment tactics, the SLAPPer risks incurring public and judicial outrage that may ultimately harm her present and future projects.(263)

In 1994 Massachusetts responded by passing an anti-SLAPP bill which should make responding to SLAPPs less expensive for their targets.(264) The law addresses the main concerns of SLAPP victims: it hastens the termination of the suit; it limits discovery; it shifts the burden of proof; and it shifts costs to the plaintiff if the motion is granted.(265) The law provides for a special motion to dismiss, which must be acted on "as expeditiously as possible" by the court.(266) Once the special motion has been filed, discovery is stayed.(267) The non-moving party must show that "(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party."(268) Finally, the court must award costs and reasonable attorney's fees to the moving party if it grants the motion.(269)

The bill was supported by "neighborhood groups, civil libertarians and environmentalists,"(270) and sponsored by Representative David Cohen (D-Newton), a consistent proponent of environmental legislation. The same bill was pocket-vetoed by Governor Weld in 1993, but his veto, based on concerns that the bill was overbroad,(271) was overridden by the legislature at the end of the 1994 session.(272)

The bill has been used successfully in a number of unreported cases. Although about half of the lower court cases have been of exactly the type intended,(273) the new law has been used frequently by business competitors,(274) bringing to light the frequency with which government processes may be used by competitors. This is not necessarily an abuse; government officials depend on citizen suits to enforce many laws, particularly environmental laws.

While recourse to the courts is one of the interest-balancing mechanisms that we rely on, it is essential that protections against abuses be established, such as the anti-SLAPP bill. The critical factors are that the behavior which is manipulated by the threat of litigation is an exercise of a constitutional freedom, and that the victim is particularly vulnerable to the psychological and financial burden of litigation. If the anti-SLAPP law works properly, it will protect the participative process on which conservation commissions rely.

G. Interest Group Access to the Legislature and Administrative Agencies

Direct pressure on the rulemaking bodies is yet another avenue for interest groups to affect the wetlands regulatory regime. Because the Wetlands Protection Act (WPA) is a state, rather than local, law, it is subject to amendment and repeal and to changes in its implementing regulations at the state level. The WPA clearly enjoys broad but not unanimous support. Efforts in the political arena to limit its application to particular resources or activities, or to carve out special exemptions, have been largely unsuccessful. Massachusetts Audubon Society states that "on Beacon Hill, every year bills are filed to weaken the state Wetlands Protection Act. These proposals range from exemptions for specific activities such as maintenance of railroads or driving vehicles on certain beaches to outright abolishment of the fundamental provisions of the act."(275) However, despite the fact that various interest groups keep up the pressure, the WPA has rarely been altered to weaken its provisions.(276)

Amendments to the WPA have strengthened the authority of the commissions and extended the reach of the Act. The 1972 amendment extended the WPA to cover land bordering ocean and tidal land.(277) Later amendments provided for administrative appeals, improved mapping of wetlands, and created emergency powers for commissions to authorize urgent work without notice and a permit hearing.(278)It is interesting to note that a 1986 amendment foreshadowed current national concerns by adding protection of wildlife habitat to the Act.(279) Important amendments in 1987 and 1990 increased fines for violations from $1000 per day to $25,000 and granted commissions power to issue enforcement orders.(280)

The most significant weakening amendments are those that create exceptions for public utilities, cranberry bogs, and projects authorized by special acts (1974), and for aquaculture (1979).(281) In 1991, "normal maintenance or improvement of land in agricultural use" was redefined to make it easier for farmers to work in resource areas governed by the WPA.(282) The wounded real estate industry, reeling at the end of the 1980s, was unable to garner enough political support to prevent the strengthening of the WPA implicit in the 1987 and 1990 amendments, but the farmers, only 0.2% of the population and insignificant in the state economy, mowed down the environmental opposition.

When this Article was begun in the fall of 1994, I used the Massachusetts River Protection Act,(283) an important piece of proposed legislation that would increase development setbacks from rivers to reduce polluted runoff, as the lone example of how development interests were capable of defeating environmental legislation. In both 1993 and 1994, the bill was held in the House Ways and Means Committee and never released for a House vote, although it was passed by the state Senate.(284) In 1996, the bill passed and became law.(285) Apparently, the Massachusetts legislature, like Congress, has responded to the strength of the public will in the face of concentrated interest group pressures, and has continued to favor environmental protection despite the cost to private development.

Policy development is another area where wetlands management can be influenced by sectors of the public. Wetlands are biologically complex resources, fragile, and subject to many different types of perturbations. The role of science in wetlands management is generally considered central for these reasons. If the management system is functioning well, scientists should be visible and influential in the less political, more administrative stages of the process.

The commissions believe that scientists are not as influential as they should be, although it is clear that the legislature and DEP have attempted to ensure that they have a role to play. The composition of the technical advisory committee on regulations to protect wildlife habitat through the WPA shows an intent to make the system representative of major interests. As discussed above, the amendment to the Act specified that the committee should include scientists, environmentalists, business people, and representatives of relevant government agencies.(286) However, the impressionistic response from the conservation commissions themselves suggests that the scientific community has too little influence on wetland management decisions. Compared to the percentage of commissioners in Robinson's survey who believed that they themselves had too little influence (49%), the indication that 66% of commissioners who responded to her survey believed that scientists had too little influence is significant.(287)

There is simply too little data to draw a conclusion at this time about the level of influence of scientists, but the integration of scientific data and opinion is a central problem in natural resource management. Where, as here, there have been pains taken to address the problem, it will be important to look more closely and assess their success.

The political process, which has provided recourse for property owners opposed to environmental regulation in other parts of the country, has favored environmental interests in Massachusetts. It appears that administrative policy development has been a reasonably representative process, although there is reason for concern that scientific opinion has not been adequately integrated.

H. The Balancing of Interests

In balancing private economic interests and public interests, conservation commissions retain flexibility to negotiate with applicants through permit conditions without losing the authority to "just say no." They can consider alternatives to the project as designed, or they can require the applicant to. Oliver Houck identified four problems with the alternatives options provided by federal environmental law:

   [n]o one knows, under any statute, how far the alternatives inquiry
   travels. The inquiry is also limited, as a practical matter, by who is
   doing the inquiring. Relatedly even where alternatives are available for
   the finding, the process is exhausting: the implementing agencies simply
   wear out. Last but not least, the approach relies on principles with which
   courts are uncomfortable and have begun to erode.(288)

In Professor Houck's view, both natural resource agencies and pollution control agencies have moved in the direction of requiring would-be developers or polluters to explore and consider alternatives to activities that would be flat-out banned under command and control regulation.(289) The endless litigation and political resistance of industry to each new standard proposed, the difficulty of developing and defending standards for EPA, and the need to escape the unremitting harshness of the Endangered Species Act(290) have led to different versions of legal alternatives strategy.

Conservation commissions also use alternatives (in the form of conditions) as an escape valve, a means of reaching a more equitable and efficient solution in an area where decision-making is complex, not binary. We have seen that commissions are provided with tools to address the problems that Professor Houck finds in the federal law. The "alternatives inquiry" is cabined by the terms of the Wetlands Protection Act.

Professor Houck's second criticism is directed at the problem of agency "capture," which has been discussed above.(291) The fact that there are two entities, DEP and local commissions, may serve to offset the problem of capture, because their interests may not be aligned.(292) Commission "capture" may be controlled by community pressure on the appointing authority and the transparency and opportunities for public participation built into the process.(293)

Exhaustion of the reviewing agency is the most threatening challenge to commissions. Commissions demand an enormous amount of time from volunteers. They impose a burden of responsibility which can be daunting for those who take their job seriously. Highly technical issues of population biology, hydrology, structural engineering, and highway tunnel design can come up in the same evening as a briefing on the planning department's new zoning proposal and some heated community testimony. Few commissioners could claim to be fully proficient on all of these issues. As a result, commissions may fall short in the capacity to carry out their tasks.(294) All of this is added to the psychic drain felt by those who see the same bad projects come before them year after year, and the continuous pressure exerted to develop wetlands. The threat of lawsuits by disgruntled applicants or opponents is yet another burden that may discourage commissioners.(295)

Professor Houck's fourth concern--the erosion of alternatives by judicial narrowing of standing(296) and expansion of takings(297)--is partially relevant to our local institutions. In extremis, alternatives are only considered by regulatees when there is a legally enforceable hammer. If opponents are denied standing to sue, they cannot ensure enforcement against the regulated party, and the alternatives review process falls apart.

Standing for opponents of a proposed project to challenge commission proceedings on the ground of environmental damage is quite broad, but not unlimited. "Any person" can speak at a commission heating, or make a Request for a Determination of Applicability (RDA).(298) A member of the general public may challenge a RDA or the approval (or rejection) of a project if he or she is the applicant, the property owner, owns property which abuts the property in question, is "aggrieved by an Order," or lives in the town where the property is located and has nine like-minded colleagues.(299) A citizen of the next town who has been studying the wildlife of a marsh has no standing to challenge alterations of the marsh that would destroy it, except as an intervenor if one of the aforementioned parties has initiated an appeal to DEP. If the parties who have standing fail to enforce the Act, there is no other recourse.

The Supreme Court has eroded the ability of agencies to regulate by expanding the requirement that a person whose private property is "taken" by government action must be compensated.(300) This is a very live issue for conservation commissions and DEP. It is a thumb on the scale that adds weight to the claims of the private property owner, limiting the ability of government to adapt the content of property rights to the perceived needs of the day.(301)

V. CONCLUSION

The criteria for natural resource governance set out in the introduction of this Article appear to be satisfied, although many questions and areas needing further study have been identified in the course of this investigation. Massachusetts's local conservation commission governance of wetlands has successfully reduced the wetlands loss rate when balanced by the safeguards of supervision by a state agency and the statewide statutory framework of the Wetlands Protection Act. At the same time, environmental protection and environmental activists have been strongly supported by the public, as evidenced by the recent passage of the Rivers Protection Act and the anti-SLAPP Suit law.

Although conservation commissions could do a better job in addressing the quality of the wetlands under their jurisdiction and in reversing rate of loss, they have managed to achieve a notable slowing in wetland destruction despite the dense and growing population of the Commonwealth and the intense development pressure of the last twenty years. Continued public support of legislation is an indication of the democratic nature of the institutions in its expression of public satisfaction with outcomes and the perceived ability of the commissions and DEP to responsibly handle authority over land use matters. If the Wise Use movement is a protest by the minority, the lack of success of the movement in Massachusetts suggests that the minority is relatively satisfied.

(1) Air Pollution Control Act, 42 U.S.C. [subsections] 7401-7671 (1994).

(2) See, e.g., DANIEL J. FIORINO, MAKING ENVIRONMENTAL POLICY (1995) (discussing the formulation and implementation of national environmental policies); MARC K. K. LANDY ET AL., THE ENVIRONMENTAL PROTECTION AGENCY ' ASKING THE WRONG QUESTIONS (1990) (linking the technical issues of risk, costs, and benefits to managerial and political problems at EPA); John Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233 (1990) (analyzing agency discretion when enforcing legislation that is deemed symbolic or politically motivated).

(3) "Sensitive lands" is the expression used sometimes to refer to fragile habitats, including wetlands and coastal areas. These are often ecosystems which are particularly valuable as well as particularly vulnerable. See, e.g., Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. Rev. 77, 80 (1995) (discussing movement in wetlands cases toward an ecological perspective, away from considerations grounded in the Industrial Age). This Article does not attempt to define wetlands, discuss their functions, or make the case for their importance-many other articles have already done this extremely well, and I believe most people are now familiar with the information. The following books are excellent resources: WILLIAM J. MITSCH & JAMES G. GOSSELINK, WETLANDS (2d ed. 1993); MARK S. DENNISON & JAMES F. BERRY, WETLANDS: GUIDE TO SCIENCE, LAW, AND TECHNOLOGY (1993)

(4) See generally DAVID M. O'BRIAN, 2 CONSTITUTIONAL LAW AND POLITICS 93 (1995) (discussing protection of insular minorities' rights in a majoritarian democracy).

(5) Barton H. Thompson, Jr., Foreword: The Search for Regulatory Alternatives, 15 STAN. ENVTL. L. J. viii, x (1996).

(6) Id. In 1993, a property rights bill was introduced in the Massachusetts legislature, and Governor William Weld initiated an effort to design "single source" state permitting. Matthew J. Kiefer, Debate Grows over `Growing Smart' Legislation, 22 MASS. LAW. WKLY., S.2, col. 1, Apr. 25, 1994. These efforts have not yet borne fruit and are best addressed in a sequel to this Article.

(7) MASS. GEN. LAWS ANN. ch. 40, [sections] 8(c) (West 1985 & Supp. 1998). In this Article, the terms "towns," "localities," "municipalities," and "communities" are used synonymously; the technical distinctions, which relate to specific issues of government, are not important in this context.

(8) Id.

(9) Id.

(10) Id. at ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(11) Id. at ch. 21A, [sections] 2 (West 1994 & Supp. 1998).

(12) See Richard Briffault, Our Localism: Part I-the Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990) and Our Localism: Part II--Localism and Legal Theory, 90 COLUM. L. REVS. 346 (1990).

(13) The environmental justice movement has centered its critiques on federal agencies, particularly EPA, though community groups are the initiators. See generally Luke W. Cole, Community Initiatives: Macho Law Brains, Public Citizens, and Grassroots Activists: Three Models of Environmental Advocacy, 14 VA. ENVTL. L.J. 687 (1995) (advocating for greater participation by local groups). Land use planning is a major factor for both wise use and environmental justice activists, making local government a critical forum. Cole also emphasizes that powerlessness is the fundamental problem causing environmental injustice, and that community organization answers that problem by developing pressure groups that have the ability to influence decisionmakers. His conclusion is that local organizations can effectively use both public participation and interest group pressure to achieve their goals. Id. at 709.

(14) IUCN/UNEP/WWF, CARING FOR THE EARTH: A STRATEGY FOR SUSTAINABLE LIVING (1991); see also THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987). This book, commonly known as "The Brundtland Report," popularized the concept of sustainable development. For a discussion of the efforts to implement sustainable development concepts in international fora, see GARETH PORTER AND JANET WELSH BROWN, GLOBAL ENVIRONMENTAL POLITICS (1991).

(15) THE FEDERALIST NO. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961).

(16) 33 U.S.C. [sections] 1365(a) (1994).

(17) See RICHARD B. STEWART & PETER S. MENNELL, ENVIRONMENTAL LAW AND POLICY (1994) (discussing these points generally).

(18) JON A. KUSLER, OUR NATIONAL WETLAND HERITAGE: A PROTECTION GUIDEBOOK 32 (1983). This book has a useful discussion of the authorities available to localities for wetlands bylaws, zoning, and other regulation.

(19) Id. at 38.

(20) Id. at 35.

(21) Id. at 39.

(22) Id.

(23) Id.

(24) See Briffault, supra note 12; DAVID L. KIRP, ET AL., OUR TOWN: RACE, HOUSING AND THE SOUL OF SUBURBIA (1995).

(25) An important area that has been discussed in Massachusetts, but for which I have at this time insufficient data to develop any analysis, is the inability of economically depressed towns to resist developers' proposals which would have been rejected by conservation commissions in wealthier towns. The state agency, the Department of Environmental Protection (DEP), should theoretically step in and require conditions on any permit to ensure the development will not harm a resource area protected under the Wetlands Protection Act. Constraints of time, information, personnel, and political support may disable the DEP from performing this function.

(26) See generally KUSLER, supra note 18, at 5-10 (discussing scientific and aesthetic qualities of wetlands). A similar view is expressed by this excerpt from David B. Hunter:

   [U]se restrictions intended to preserve the ecological integrity of
   sensitive lands are different from other use restrictions. In regard to the
   former, society's decisions are compelled by a recognition of the external
   ecological effects private land-use decisions can have; in the latter, they
   are driven by majoritarian value judgments. This insight differentiates
   ecologically necessary exercises of the police power and refers the inquiry
   to the environmental sciences. Thus, the inherent manipulability that
   plagues traditional takings doctrines, as exemplified by the harm/benefit
   distinction, is avoided.

David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311, 313 (1988).

(27) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(28) RALPH W. TINER, U.S. FISH AND WILDLIFE SERVICE, PRELIMINARY NATIONAL WETLANDS INVENTORY REPORT ON MASSACHUSETTS'S WETLAND ACREAGE (1992) [hereinafter TINER INVENTORY].

(29) See generally WILLIAM CRONON, CHANGES ON THE LAND (1983).

(30) Id. at 12.

(31) Id. at 32.

(32) In my research, I have not encountered any estimate of the natural rate or frequency of this process.

(33) Cronon describes the impact of the European fashion of beaver hats on New England beaver populations, and the consequences of their near-extirpation on both the ecology of New England and on the social and economic conditions of the Indians. CRONON, supra note 30, at 106.

(34) TINER INVENTORY, supra note 28, at 1.

(35) Id. This study found a total of 590,000 acres of wetlands in the state. MASSACHUSETTS EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS, AN ENVIRONMENT AT RISK: THE FIRST ANNUAL REPORT ON THE STATE OF THE MASSACHUSETTS ENVIRONMENT, 99-101 (1989) [hereinafter EOEA 1989 REPORT]. The heated conflict over wetlands delineation techniques, and the variation between methodologies, has made it quite difficult to compare studies. The studies compared in the following discussion are generally conducted according to the Fish and Wildlife Service protocol, except where noted. The variation between studies is within reasonable tolerance, given the impressionistic nature of my conclusions.

(36) TINER INVENTORY supra note 28, at 1.

(37) EOEA 1989 REPORT, supra note 35, at 100.

(38) Jack Thomas, River Renaissance: After Years of Neglect, Boston Rediscovers the Charms of the Charles, THE BOSTON GLOBE, August 13, 1992, at 35. Some of the species historically found in Massachusetts, but now extinct in the state or globally include the Heath hen, gray wolf, elk, pine marten, great auk, lynx, and passenger pigeon. Black bear and sturgeon are two of the species which have recovered as a result of changes in laws and habitat management practices. EOEA 1989 REPORT, supra note 35, at 109.

(39) DAVID B. FOULIS & RALPH W. TINER, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, WETLAND TRENDS FOR SELECTED AREAS OF THE COAST OF MASSACHUSETTS FROM PLUM ISLAND TO SCITUATE 3 (1994) [hereinafter FOULIS & TINER]. This study compared aerial black and white photographs taken in 1977 to aerial color photographs from 1985-1986. The study area was approximately 17.7% wetlands, slightly higher than the statewide average of 12%. Given the coastal focus of the study area, this result is not surprising.

(40) Id.

(41) EOEA 1989 REPORT, supra note 35, at 100.

(42) See Marged Hams, Wetlands Management under the Clean Water Act: Checking the Balances and Balancing the Checks, 21 ENV'T REP. (BNA) 828 (1990) (citing Congressional Research Service (Aug. 30, 1989): 87% of wetlands loss is from agriculture, 8% from urban development and 5% from other development). Initial efforts to preserve wetlands were focused on coastal wetlands, but attention is now turning inland to stop the steady loss of inland wetlands, particularly from conversion to agriculture. OFFICE OF TECH. ASSESSMENT, WETLANDS, THEIR USE AND REGULATION, 3-21 (1984).

(43) The variation from 0.2% to 0.6% appears within the margin of error of the studies, and is probably not statistically significant.

(44) DEPARTMENT OF ENVIRONMENTAL PROTECTION, AN ASSESSMENT OF NON-COMPLIANCE WITH THE WETLANDS PROTECTION PROGRAM: A FINAL REPORT FOR THE 104(b)(3) EPA STATE WETLANDS PROGRAM DEVELOPMENT GRANT CD001633-01 Figure 3 (1994) [hereinafter ASSESSMENT]. Researchers located filled wetlands on aerial color infrared photographs taken in 1990, 1991, and 1992 and compared them to the National Wetlands Inventory map data from 1977 photographs (probably the same photographs as used in the FOULIS & TINER study). Where a change had occurred, the relevant Wetlands Protection Act (WPA) permits were reviewed. The majority of the sites were altered for housing development (40 out of 53 sites). The study notes that the decrease in wetlands loss is particularly noticeable since the WPA was amended in 1983, requiring applicants to submit maps showing delineated wetlands areas, and increasing protection for inland wetlands. The spread of GIS technology to cities and towns, and its increased use by the state to measure ecosystem change will make the evaluation process more accurate in the future. Id.

(45) Id.

(46) Id.

(47) FOULIS & TINER, supra note 39, at 3.

(48) Id. at 3-4.

(49) Deborah Knight, Windmiller's Wood Frogs, SANCTUARY, Mar.-Apr. 1995, at 13, 14.

(50) Id. at 14; ALEXANDRA D. DAWSON & SALLY A. ZIELINSKI, ENVIRONMENTAL HANDBOOK FOR MASSACHUSETTS CONSERVATION COMMISSIONERS 72 (7th ed. 1991) [hereinafter MACC HANDBOOK].

(51) ASSESSMENT, supra note 44, at 13.

(52) Id.

(53) UNITED STATES DEPARTMENT OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 1997: THE NATIONAL DATA BOOK 29 tbl. 27 (1997) [hereinafter NATIONAL DATA BOOK].

(54) Debbie Cary, Conservation Options for Worcester County, SANCTUARY, Mar.-Apr. 1995, at 22.

(55) EOEA 1989 REPORT, supra note 35, at xii.

(56) NATIONAL DATA BOOK, supra note 53.

(57) UNITED STATES DEPARTMENT OF COMMERCE, STATE AND METROPOLITAN AREA DATA BOOK 1997-98: A STATISTICAL ABSTRACT SUPPLEMENT 3 tbl. A-2 (1997-98) [hereinafter METROPOLITAN AREA DATA BOOK].

(58) NATIONAL DATA BOOK, supra note 53, at 486 tbl. 722.

(59) CYNTHIA ROBINSON, CHALLENGES, EDUCATIONAL NEEDS, AND MOTIVATORS FOR COMMUNITY-BASED CONSERVATION: A SURVEY OF MASSACHUSETTS CONSERVATION COMMISSIONERS ROBINSON 19 (1996).

(60) UNITED STATES DEPARTMENT OF COMMERCE, COUNTY AND Claw DATA BOOK 1994 6 tbl. A (1994) [hereinafter COUNTY AND CITY DATA BOOK].61 ROBINSON, supra note 59, at 19.

(62) COUNTY AND Claw DATA BOOK, supra note 60, at 11 tbl. A.

(63) EOEA 1989 REPORT, supra note 35, at 37-38.

(64) Id. at 39.

(65) Id. at 37. This was a growth period for the state economy: the conclusion should not necessarily be that the WPA drove up property values, although it may have.

(66) DEPARTMENT OF ENVIRONMENTAL PROTECTION & DEPARTMENT OF FOOD AND AGRICULTURE, FARMING IN WETLAND RESOURCE AREAS: A GUIDE TO AGRICULTURE AND THE MASSACHUSETTS WETLANDS PROTECTION ACT 1-12 (1994).

(67) COUNTY AND Claw DATA BOOK, supra note 60, at 11 tbl. A.

(68) EOEA 1989 REPORT, supra note 35, at 37 (data originally from U.S. Dep't of Commerce).

(69) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(70) EOEA 1989 REPORT, supra note 35, at 65.

(71) TINER INVENTORY, supra note 28, at 5.

(72) EOEA 1989 Report, supra note 35, at 39.

(73) Id. at xii.

(74) COUNTY AND CITY DATA BOOK, supra note 60, at 8 tbl. A.

(75) Helen F. Ladd, "The Massachusetts Experience," States Under Stress: A Report on the Finances of Massachusetts, Michigan, Texas, and California 4 (Peggy B. Musgrave ed. Feb., 1985).

(76) Id.

(77) Id. at 7.

(78) Id. at 9.

(79) NATIONAL DATA BOOK, supra note 53, at 273 tbl. 441.

(80) ANDREW J.W. SCHEFFEY, CONSERVATION COMMISSIONS IN MASSACHUSETTS 20 (1969).

(81) John Mitchell, The Mothers of Conservation, SANCTUARY, Jan.- Feb. 1996, at 3.

(82) Id. at 15; DEP'T OF ENVTL. PROTECTION, DIV. OF WETLANDS AND WATERWAYS, COMMONWEALTH OF MASS., WETLANDS WHITE PAPER: A REPORT ON THE PROTECTION OF WETLANDS IN MASS. 15 (1991).

(83) Mitchell, supra note 81, at 14.

(84) Id. at 4.

(85) Id. at 5.

(86) Id. at 4-6. The history of conservation in the United States is rife with similar examples. Olga Owns Huckins, an amateur birder from Duxbury, Massachusetts, passed her documentation of bird kills from aerial pesticide spraying on to Rachel Carson, influencing her eventual writing of Silent Spring. Id. at 2. Marion Stoddard is credited with saving the heavily polluted Nashua River. Id. On the island of Nantucket, William Henchy donated time to defend the piping plovers from off-road vehicles that destroy the endangered birds' nests and young. Nantucket Votes to Save Plovers, SANCTUARY, July-Aug. 1995, at 21.

The Massachusetts Audubon Society eventually split from the National Society. It retains its focus on Massachusetts affairs, although it interprets those liberally. One of the projects developed in the 1980s was the Project for Belize, an effort to protect Massachusetts's migratory birds in their Central American winter home.

(87) Andrew Blake, Invasive Plants Choke Local Lakes, THE BOSTON GLOBE, May 28, 1995, at 1, 5-6.

(88) MASS. CONST. amend, art. II, [sections] 6; MASS. GEN. LAWS ANN. ch. 40, [sections] 8(C) (West 1985 & Supp. 1998).

(89) See Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264 (1981) (holding that the standard of review for Congressional findings that a regulated activity affects interstate commerce is rational basis).

(90) Missouri v. Holland, 252 U.S. 416 (1920) (holding that a treaty is a proper basis for legislation).

(91) Commissioner of Natural Resources v. S. Volpe & Co., 206 N.E.2d 666, 669 (Mass. 1965) (stating "the Legislature clearly has the power to protect and preserve the fish and game of the Commonwealth. To this end, once a policy has been determined, its execution may be delegated to an appropriate public officer or board," characterizing this as an exercise of the police power for the public benefit).

(92) Massachusetts Zoning Enabling Act of May 3, 1954, ch. 368, 1954 MASS. ACTS 244; see Golden v. Board of Selectmen of Falmouth, 265 N.E.2d 573 (Mass. 1970) (holding town board had authority to deny a permit notwithstanding state agency authorization of the project where town had express authority to do so under Zoning Act and there was no evidence legislature intended to occupy the field of coastal wetlands regulation). For an early state supreme court case approving the delegation from the state to the city of Philadelphia of authority to pass and enforce land use ordinances, see Respublica v. Philip Urbin Duquet, 2 Yeates 493 (Pa. 1799).

(93) Mass. Const. amend, art. LXXXIX.

(94) See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding that selective enforcement of a San Francisco ordinance prohibiting laundries in wooden buildings violated the Equal Protection clause of the Constitution). Lucas v. South Carolina Coastal Corem'n, 505 U.S. 1003 (1992) (holding that state regulation that reduces market value of private property to zero violates the Fifth Amendment prohibition on uncompensated takings).

(95) See SCHEFFEY, supra note 80, at 35.

(96) Conservation Commission Act, MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998).

(97) DEP'T OF ENVTL. PROTECTION, DIV. OF WETLANDS AND WATERWAYS, COMMONWEALTH OF MASS., WETLANDS WHITE PAPER: A REPORT ON THE PROTECTION OF WETLANDS IN MASS. 38 (1991).

(98) ROBINSON, supra note 59, at 9.

(99) In California, the Coastal Act provides for state authority over most land use planning in the designated Coastal Zone until the county or municipality passes an approved Land Use Plan, when authority shifts to the local government. CAL. PUB. RES. CODE [sections] 30500 et seq. (West 1984). In France, a similar default system exists, where national regulation governs in the absence of an approved local plan. J. Barry Cullingworth, Alternate Planning Systems: Is There Anything to Learn from Abroad? 60 J. AM. PLANNING ASSOC. 162, 164-65 (1994).

(100) Mitchell, supra note 81, at 14, 15.

(101) Id. at 15. While Massachusetts led the way in U.S. wetlands regulation, there is an ancient tradition. Professor Fred P. Bosselman has traced the common law history of wetlands to medieval England's great fens, where the writ of ad quod damnum (appropriately, also spelled ad quod dampnum) operated very much like the Massachusetts permitting system. Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 15 STAN. ENVTL. L. J. 247, 291-297 (1996). Professor Bosselman finds the analogy to an action in anticipatory nuisance more precise, although he also finds similarities between the procedures under the writ and the environmental review process used by the Army Corps of Engineers for Clean Water Act section 404 permits. Id. A party interested in constructing a public works project first applied for the writ; when it was issued, a jury determined the damage expected to result from the project, and whether compensation was required. Id. This is roughly analogous to permit conditions which require public benefits as mitigation to offset project-engendered harm to protected wetlands. Id. In the medieval system, a writ was not required for repairs to existing projects. Id. The use of the writ began to be replaced by statutes around 1600. Id.

(102) Massachusetts is not the only state to pass statewide wetlands laws. See Wetlands and Watercourses, CONN. GEN. STAT. ANN. [subsections] 22a-28 to 22a-45a (West 1995); The Wetlands Act, DEL. CODE ANN. tit. 7 [subsections] 6601-6620 (Michie 1991); The Wetlands Act of 1970, N.J. STAT. ANN. [subsections] 13:9A-1 to 13:9A-10 (West 1991 & Supp. 1998); The Freshwater Wetlands Protection Act, N.J. STAT. ANN. [subsections] 13:9B-1 to 13:9B-30 (West 1991); Freshwater Wetlands Act, N.Y. ENVTL. CONSERV. LAW [subsections] 24-0101 to 24-1305 (McKinney 1997); Tidal Wetlands Act, N.Y. ENVTL. CONSERV. LAW [subsections] 25-0101 to 25-0601 (McKinney 1997).

(103) MACC HANDBOOK, supra note 50, at 49.

(104) In 1966, 86% of Massachusetts towns had open town meetings. JOSEPH F. ZIMMERMAN, THE MASSACHUSETTS TOWN MEETING: A TENACIOUS INSTITUTION vii (1967). An indication that town meetings and conservation commissions may be subject to some of the same stresses, Zimmerman points to a number of problems: lack of debate, low attendance, and need for greater than common expertise on the issues. Id. at 75-82. For example, although Zimmerman says that frequently less than ten percent of registered voters may participate, when contentious issues arise, attendance rates increase. Id. at 77. He nonetheless remains a strong supporter of town meetings as a form of local government, relying on the empirical datum that no town has voted to become a city since 1922. Id. at 88.

(105) Conservation Commission Act, MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998).

(106) Id.

(107) Id. A study found that forty-five percent of the towns in the sample had at least part-time staff. This report was based on a survey, a detailed investigation, and additional data. ASSESSMENT, supra note 44, at 5. A survey of conservation commissions statewide, to which sixty-nine percent of all commissions replied, asked for information about the composition of commissions, including experience, occupation, time spent on commission work, and resources available to commissions. A more detailed investigation of Wetlands Protection Act permit review, substance, and procedure was carried out in twelve towns in the Northeast Region, using phone calls and reviews of permit files.

(108) MACC HANDBOOK, supra note 50, at 4. MASS. GEN. LAWS ANN. ch. 41, [sections] 109 (West 1994).

(109) MASS. GEN. LAWS ANN. ch. 268A, [subsections] 17-23 (West 1990 & Supp. 1998).

(110) ASSESSMENT, supra note 44, at 3, 5, Appendix A.2.

(111) Conservation Commission Act, MASS. GEN. LAWS. ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998) and notes. See MACC HANDBOOK, supra note 50. This is an excellent resource published by the Massachusetts Association of Conservation Commissions.

(112) Conservation Commission Act, MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1995).

(113) Id.

(114) Id.

(115) Id.

(116) MACC HANDBOOK, supra note 50, at 13-48.

(117) Conservation Commission Act, MASS. GEN. LAWS. ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998).

(118) Id.; 71 Op. Att'y Gen. (1974-75)

(119) Conservation Commission Act, MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998).

(120) Id.

(121) Wetlands Protection Act, MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998). Massachusetts statutes are not identified by subsections or paragraphs, so I will not repeat this citation every time I refer to part of the Act, as it would not add any useful information.

(122) MACC HANDBOOK, supra note 50, at 49; see MASS. REGS. CODE tit. 310, [sections] 10.00 (1996). Note that the Department of Natural Resources was first renamed the Department of Environmental Quality Engineering (DEE) and is now the Department of Environmental Protection (DEP). MACC HANDBOOK, supra note 50, at 49.

(123) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(124) Id.

(125) MASS. GEN. LAWS ANN. ch. 21, [subsections] 42-43 (West 1994 & Supp. 1998).

(126) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994); 401 Water Quality Certification Program Regulations, MASS. REG. CODE tit. 314 [sections] 9.00 (1996); 401 Surface Water Quality Standards, MASS. REG. CODE tit. 314, [sections] 4.00 (1996).

(127) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(128) Lovequist v. Town of Dennis, 393 N.E.2d 858, 863 (Mass. 1979).

(129) See MACC Handbook, supra note 50, at 92-171; Donald R. Frederico & Richard H. Baird, Introduction: A Brief Overview of Federal and Massachusetts Environmental Laws, 75 MASS. L. REV. 91 (1990).

(130) See Lovequist, 393 N.E.2d at 863 (holding local nonzoning regulation is not preempted by state wetlands law). The bylaw tested in this case became the basis for a model law recommended by the MACC. MACC HANDBOOK, supra note 50, at 93.

(131) Private communication with Sally Zielinski, Executive Director, MACC. Although MACC feels that cities and towns have not taken full advantage of the wetland protection offered by bylaws, over 100 municipalities in Massachusetts have them. MASS. DEP'T OF ENVTL. PROTECTION, Appeal Stays: Stay of Requests for Adjudicatory Hearings in Wetlands Permit Cases When an Order of Conditions Has Been Denied Under a Local Wetlands Bylaw (Zoning or Non-Zoning) (DWW Policy 89-1), in WETLANDS PROTECTION PROGRAM POLICIES 13 (March 1995).

(132) MACC HANDBOOK, supra note 50, at 95-96.

(133) Massachusetts Clean Waters Act, MASS. GEN. LAWS ANN. ch. 21, [sections] 26-53 (West 1994 & Supp. 1998); Chapter 91 Waterways Program, Massachusetts Public Waterfront Act, MASS. GEN. LAWS ANN. ch. 91, [subsections] 1- 63. (West 1993 & Supp. 1998); Massachusetts Environmental Policy Act, MASS. GEN. LAWS ANN. ch. 30, [subsections] 61-62H (West 1992 & Supp. 1998). The Inland and Coastal Wetland Restriction Acts allow the DEP to place protective orders on privately owned wetlands. Orders Protecting Inland Waterways, MASS. GEN. LAWS ANN. ch. 131, [subsections] 40A (West 1991 & Supp. 1998); Protection of Coastal Wetlands, MASS. GEN. LAWS ANN. ch. 130, [sections] 105 (West 1991 & Supp. 1998). The program has so far issued orders on 74,000 acres of coastal land. MACC HANDBOOK, supra note 50, at 99. A law which provides similar protections for rivers and that has fallen into desuetude for political reasons is the Scenic Rivers Act. Orders Concerning Scenic and Recreational Rivers and Streams, MASS. GEN. LAWS ANN. ch. 21, [sections] 17B (West 1994 & Supp. 1998). Conservation commissions may recommend the designation of scenic roads, which regulates removal of trees and stone walls. MASS. GEN. LAWS ANN. ch. 40, [sections] 15C (West 1985 & Supp. 1998).

(134) Massachusetts Public Waterfront Act, MASS. GEN. LAWS ANN. ch. 91, [subsections] 1-63 (West 1993 & Supp. 1998). The statute was passed in 1866, reasserting a measure of public control over tidelands on which the colonial government had ceded almost all property rights to adjacent landowners in the 1630's. COASTAL ZONE MANAGEMENT, EOEA, COASTAL BRIEF 4 (1994). For a history of the Colony Ordinance of 1641-1647 and the early sources of the public trust in Massachusetts law, see also THE MASSACHUSETTS WATER RESOURCES COMMISSION, COMPILATION AND SUMMARIZATION OF THE MASSACHUSETTS GENERAL LAWS, SPECIAL LAWS, PERTINENT COURT DECISIONS, ETC. RELATING TO WATER AND WATER RIGHTS 10-16 (1970).

(135) However, the public has no right of access across private land. MACC HANDBOOK, supra note 50, at 98.

(136) Id.

(137) Id.

(138) MASS. GEN. LAWS ANN. ch. 21, [sections] 27 (West 1994 & Supp. 1998).

(139) Id.

(140) MASS. GEN. LAWS ANN. ch. 30, [subsections] 61-62H (West 1992 & Supp. 1998).

(141) MASS. GEN. LAWS ANN. ch. 21A, [sections] 2(7) (West 1994 & Supp. 1998).

(142) MACC HANDBOOK, supra note 50, at 99.

(143) MASS. GEN. LAWS ANN. ch. 30, [sections] 61 (West 1992 & Supp. 1998).

(144) Id.

(145) Id.

(146) 16 U.S.C. [subsections] 1451-1464 (1994 & Supp. I 1995).

(147) Water Pollution Prevention and Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. I 1995). Other significant federal laws include the Coastal Barriers Resources Act of 1982, 16 U.S.C. [subsections] 3501-3510 (1994 & Supp. I 1995), and the National Flood Insurance Act of 1968, 42 U.S.C. [subsections] 4001-4129 (1994 & Supp. I 1995).

(148) 16 U.S.C. [sections] 1452 (1994).

(149) 33 U.S.C. [sections] 1329 (1994).

(150) Id. [sections] 1344 (1994).

(151) Id. [sections] 1329(b)(3) (1994).

(152) Id.

(153) 33 U.S.C. [sections] 1344 (1994).

(154) See United States v. Riverside Bayview Homes, Inc. et al., 474 U.S. 121, 132, 134 (1985) (holding that where the Corps enjoined a developer's filling activities, "the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act"); see also Margaret N. Strand, Federal Wetlands Law, in WETLANDS DESKBOOK 1, 1113 (Environmental Law Institute ed., 1993).

(155) 33 U.S.C. [sections] 1251(a) (1994).

(156) MACC HANDBOOK, supra note 50, at 97.

(157) Id.

(158) See infra notes 169-71 and accompanying text.

(159) Wetlands Protection Act, MASS. GEN. LAWS. ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998). In cases where no conservation commission has been established, the notice is served on the mayor or selectmen. Id.

(160) Id.

(161) WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1340 (9th ed. 1987).

(162) Wetlands Protection Act, MASS. GEN. LAWS. ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998). Some of the impetus for developing a new definition of wetlands is the imprecision and inaccuracy of the WPA.

(163) Id.

(164) Id.

(165) Id.

(166) MASS. REGS. CODE tit. 310, [sections] 10.05 (3) (1997).

(167) Id.

(168) Twenty-one days from the time of the notice of intent to issuance of a determination of applicability and hold a hearing, 21 days to issue an order of conditions. Wetlands Protection Act, MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(169) Id.

(170) Id.

(171) Id.

(172) MASS. REGS. CODE tit. 310, [sections] 10.00 (1997).

(173) MACC HANDBOOK, supra note 50, at 49.

(174) See, e.g., Thomas K. McCraw, Regulation in America: A Review Article, 44 Bus. HIST. REV. 159, 159, 166 (1975). It is important to understand the distinctions between the early independent commissions and conservation commissions. Independent commissions are generally thought of as federal entities, wielding vast power in a highly discretionary manner. Conservation commissions are constrained by their role in the city government; their restricted means, which make them dependent on cooperation with other city agencies; their relationship with the DEP, which sets policy; and their two-year terms. Furthermore, they are subject to a system of disclosure, public participation, and other ethics requirements which maintains transparency and limits arbitrary decision-making. See infra Part IV.E.

Nor do the modern constraints of media attention and the politics of polarization normally affect conservation commissions. CHRISTOPHER H. FOREMAN, SIGNALS FROM THE HILL: CONGRESSIONAL OVERSIGHT & THE CHALLENGE OF SOCIAL REDUCTION 21 (1988). While large projects (e.g., the Central Artery Project which will depress the expressway that passes through downtown Boston, or the Sweeden's Swamp development which is one of the few projects to have its CWA 404 permit vetoed by the EPA) may gain statewide and even national media attention, most conservation commission issues are not even reported in the local paper, let alone the Boston Globe. The public spotlight is simply not on the majority of filings, and so the watchdogs are the local community and the DEP.

(175) Wetlands Protection Act, MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(176) Id.

(177) Criticisms have included observations that

   policymaking is parceled out to many agencies and confined by complex legal
   prescriptions whose proper observance is subject to judicial review, often
   at the behest of private citizens and organizations. In this legal
   structure, advocates of particular views have strong incentives to resort
   to adversarial legal weapons, if only to increase their bargaining power.
   At bottom, adversarial legalism has been stimulated by the effort to
   formulate and implement the ambitious, transformative policies of activist
   government through political structures that reflect deep suspicion of
   concentrated authority.

Robert A. Kagan, Adversarial Legalism and American Government, 10 POL'Y ANALYSIS MGMT. 369, 370-371 (1991).

(178) RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WETLANDS PROTECTION: THE SCOPE OF THE SECTION 404 PROGRAM REMAINS UNCERTAIN 20 (1993).

(179) ROBINSON, supra note 59.

(180) This is echoed by the most common anecdotal complaint I heard, that commissions are not cognizant of the information they need to regulate. For example, a new commissioner (a lawyer) complained that, in her small, rural town, a more experienced commissioner was entirely unfamiliar with the DEP regulations which the neophyte was consulting.

(181) ROBINSON, supra note 59, at 36.

(182) ASSESSMENT, supra note 44.

(183) Id.

(184) Id. at 5.

(185) Trisha Voner, Volunteers Make the Difference, SANCTUARY, July-Aug. 1995, at 23.

(186) Gail McClelland Fenton, Wicked Big Puddles, SANCTUARY, July-Aug. 1995, at 26.

(187) MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 5-52 (2d ed., 1971). Mancur Olson's work on group dynamics is at the heart of the more recent literature on common property resources. See, e.g., ELINOR OSTROM, GOVERNING THE COMMONS 182 (1990).

(188) OLSON, supra note 187, at 165.

(189) Id. at 26.

(190) Id. at 43.

(191) Olson himself indicates this possibility in his subsequent work on the scope of collective goods. He suggests that jurisdictions be tailored to optimize efficiency of the distribution of benefits and burdens. Id. at 171.

(192) Id. at 43.

(193) This is precisely the strategy that has been employed by the Institute for Sustainable Communities in Central and Eastern Europe and Eurasia. They fostered the environmental community organizations that were instrumental in bringing democratic reform to Bulgaria, and other members of the Former Soviet Union, they helped develop new nongovernmental organizations, and they worked to strengthen the ability of local and regional governments to represent the public interest in the face of intense pressure from business development and political opportunists. INSTITUTE FOR SUSTAINABLE COMMUNITIES, ANNUAL REPORT (1996). Their projects emphasize public participation in every phase of environmental management from developing a city plan in Elk, Poland to controlling toxic air emissions in Nizhnii Tagil, Russia. Id. at 5, 16.

(194) THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).

(195) Eileen Gauna, The Environmental Justice Misfit: Public Participation and the Paradigm Paradox, 17 STAN. ENVTL. L.J. 3, 25 n.86 (1998).

(196) See AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996). There is a more humane dynamic underlying the rather cold description of "interests." Builders, birdwatchers, and policymakers act out of motives that they-probably most of the time-believe to be highly moral and fair. The underlying conflict is often rooted in opposing belief systems, particularly where the differences come to seem irreconcilable, even after long negotiation. Many developers honestly believe that they are building the houses that shelter the people, that their economic activity provides for our mutual well-being, and are not merely lining their own pockets. Most environmentalists believe that they are preserving the natural world for future generations, and not merely guaranteeing that their own little comer remains pristine. Gutman and Thompson address the problem of how, in a democratic society, we appropriately deal with such conflicts.

(197) See William N. Eskridge Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 288-89 (1988) (discussing legislators' tendency to make decisions based on interest group influence).

(198) See id. at 286 (explaining Professor Mancur Olson's theory regarding the free-rider issue and group formation).

(199) Id.

(200) Id.

(201) See supra Part III.B.

(202) Lawrence Buell, Thoreau and the Natural Environment, in THE CAMBRIDGE COMPANION TO HENRY DAVID THOREAU 171 (Joel Myerson ed., 1995). In this essay, Buell explores the development of Thoreau's environmentalism, his "progression ... from aesthetic pleasure and spiritual commitment to a politics of preservationism." Id. at 188.

(203) BERNARD ROSEN, HOLDING GOVERNMENT BUREAUCRACIES ACCOUNTABLE 15-16 (2d ed. 1989).

(204) Id.

(205) Id. at 16.

(206) Id. at 14.

(207) Id. at 10 (quoting Irving Kristol, Big Government and Little Men, NEW LEADER, NOV. 26, 1962, at 14).

(208) Id. at 14.

(209) Id.

(210) Major cities like Boston, Worcester, and Springfield are exceptions.

(211) ROSEN, supra note 203, at 14.

(212) Kagan, supra note 177, at 370-71.

(213) ROSEN, supra note 203, at 88-89.

(214) KAGAN, supra note 177, at 370-71.

(215) See supra notes 66-72 and accompanying text.

(216) Joseph Sax, The (Unhappy) Truth About NEPA, 26 OKLA. L. REV. 239 (1973). Sax points out that "[i]f we want the fullest data to be presented, we must ensure that the data gatherers have no incentives that bind them regularly to any particular client group." Id. at 248.

(217) Note that there is a system of private ordering that works in coordination with the legal system; commissioners, applicants' consultants, and applicants are all subject to informal rules and sanctions. See infra Part IV.F. A Providence, Rhode Island, trial lawyer recommends against using SLAPP suits because of the collateral damage to reputation and relationships that even a winning lawsuit can cause. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES (1991) and ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990) for excellent descriptions and analysis of how social norms informally govern communities.

(218) MASS. REGS. CODE tit. 310, [sections] 10.5(3)(a) (1997).

(219) MACC HANDBOOK, supra note 50, at 79-81.

(220) MASS. RETS. CODE tit. 310, [sections] 10.00 (1997).

(221) Id.

(222) Id.

(223) Id.

(224) Id.

(225) Id.

(226) ROSEN, supra note 203, at 87.

(227) Id. at 88.

(228) Id.

(229) MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998). See also MASS. GEN. LAW ANN. ch. 268A, [sections] 1(n) (West 1990 & Supp. 1998) (defining "special municipal employee").

(230) MASS. GEN. LAWS ANN. ch. 40, [sections] 8C (West 1985 & Supp. 1998).

(231) MASS. GEN. LAWS ANN. ch. 268A, [subsections] 17-23 (West 1990 & Supp. 1998).

(232) MACC HANDBOOK, supra note 50, at 5.

(233) Id.

(234) ASSESSMENT, supra note 44, at 5. This study indicates that conservation commissions spend an average of 4 hours per week reviewing Notices of Intent and Requests for Determination of Applicability, 4 hours at site inspections, and one hour on enforcement. Id. It is difficult to assess the amount of time spent on training, but most Commissions report attending workshops regularly. Id. The workshops are typically the full day MACC Annual Meeting or two to four hour sessions offered frequently by MACC or DEP. In most cases, attendance at a workshop also entails a drive of a half hour to one hour each way.

(235) ROBINSON, supra note 59, at 41.

(236) Id. at 39-50.

(237) Id. at 39.

(238) Id. at 41.

(239) Id. at 48.

(240) ASSESSMENT, supra note 44, at Appendix A. 2 showing 28% of Southeast Region Commissioners with real estate backgrounds, as compared to 17%, 18%, and 20% in other regions.

(241) ROSEN, supra note 203, at 88-89.

(242) Open Meeting Law, MASS. GEN. LAWS ANN. ch. 39, [sections] 23B (West 1985 & Supp. 1998). Executive session may only be held to discuss certain issues, including personnel matters, security issues, criminal conduct, to comply with other laws, or to discuss real estate dealings where the government body is a party to a negotiation and may be disadvantaged by public discussion. Id.

(243) Id.

(244) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(245) Id.

(246) See generally Part IV.

(247) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(248) U.S. CONST. amend. V, XIV.

(249) Commissioner of Nat. Resources v. S. Volpe & Co., 206 N.E.2d 666, 671 (Mass. 1965).

(250) MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(251) Id.

(252) MASS. DEFT ENVTL. PROTECTION, WETLANDS PROTECTION PROGRAM POLICIES, APPEAL STAYS POLICY 13 (Mar. 1995).

(253) Id.

(254) George N. Pring & Penelope A. Canan, SLAPPs: An Overview of the Practice, C935 ALI-ABA 1, 12 (1994) [hereinafter Pring & Canan]; see also George N. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3, 38-9 (1989). Pring & Canan point out that targets of SLAPPs may be unsympathetic individuals or organizations, and even people whose motives are economic gain. This makes the remedy for a SLAPP more difficult to formulate, unless we are willing to accept their premise that "using lawsuits to punish political expression is just another form of censorship." Pring & Canan, supra, at 11.

(255) Pring & Canan, supra note 254, at 9.

(256) Id.

(257) Id. at 10.

(258) Id.

(259) Id. at 12-13.

(260) Id. at 13.

(261) Id.

(262) W. Mark Russo, Rule 11 Sanctions: Practical Considerations for Lawyers, MASS. LAW. WKLY., June 15, 1992, at S1.

(263) Id.

(264) An Act Relative to Limiting Strategic Litigation, Chapter 283 of the Acts of 1994 (codified at MASS. GEN. LAWS Ann. ch. 231, [sections] 59H (West 1985 & Supp. 1998)).

(265) Id.

(266) Id.

(267) Id.

(268) Id.

(269) Id.

(270) Henriette Campagne, Anti-SLAPP Bill Passes House, MASS. LAW. WKLY., May 9, 1994, at 35.

(271) The Governor stated that it was "a `bludgeon where a scalpel would do'." MASS. LAWS. WKLY., June 3, 1996, at 3 (citing 1994 House Doc. No. 5570 at 3).

(272) Henriette Campagne, `SLAPP' Suit Bill Veto Overridden, MASS. LAW. WKLY., Jan. 9, 1995, at 25.

(273) See, e.g., Jordan v. Murray, No. 12-283-95, MASS. LAW. WKLY. (1995) (granting a G.L.C. 231 [sections] 59H motion where plaintiff developer sued abutter in response to letters defendant wrote to DEP and local conservation commission).

(274) Andover Liquors, Inc. v. Den Rock Liquors, Inc., No. 96-0032-C, No. 12-123-96, MASS. LAW. WKLY. (granting a special motion to dismiss although plaintiff claimed that defendant's actions in petitioning local government board and state agency were part of a conspiracy to monopolize liquor sales); Dunkin' Donuts, Inc. v. Honey Dew Associates, Inc., No. 12-004-96, MASS. LAW. WKLY. (granting a special motion to dismiss where parties were competing donut shops).

(275) Heidi Roddis, Wetlands Under Assault, SANCTUARY, July-Aug. 1995, at 26.

(276) Editorial Note to Wetlands Protection Act, MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998).

(277) Id.

(278) Id.

(279) Id.

(280) Id.

(281) Id.

(282) Wetlands Protection Act, MASS. GEN. LAW ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998) and Editorial Notes. The composition of the committee drafting the relevant regulations indicates the bias toward the farmers: one conservation commission member, two farmers, a member of the Soil Conservation Service, and a member of the Cooperative Extension Service. Id.

(283) 1996 Mass. Legis. Serv. 258 (West), available in Westlaw, 1996 Mass. Legis. Serv. Ch.

(258) (H.B. 6275).

(284) Marsha Westropp & Robie Hubley, Massachusetts Year-end Legislative Report, SANCTUARY, Mar.-Apr. 1995, at 24.

(285) 1996 Mass. Legis. Serv. 258 (West), available in Westlaw, 1996 Mass. Legis. Serv. Ch.

(258) (H.B. 6275).

(286) The amendment reads:

   a technical advisory committee to consist of eleven persons to be appointed
   by the commissioner of the department of environmental quality engineering
   two of whom shall be faculty members of colleges or universities, one with
   expertise in the field of wildlife biology and one with expertise in the
   field of wetlands science, one of whom shall be a member of the staff of
   the department of fisheries, wildlife and environmental law enforcement
   with expertise in the field of wildlife biology, one of whom shall be a
   member of the staff of the office of coastal zone management with expertise
   in the field of coastal biology, one of whom shall be a member of the staff
   of the department of public works, one of whom shall be a member of the
   Massachusetts Home Builders Association, one of whom shall be a member of
   the Massachusetts Association of Conservation Commissions, one of whom
   shall be a member of the Massachusetts Audubon Society, one of whom shall
   be a member of the National Association of Industrial Office Parks, Boston
   Chapter and one of whom shall be a member with expertise as a general
   contractor. The commissioner may appoint such nonvoting associate members
   as he deems appropriate. Said commissioner of the department of
   environmental quality engineering shall be chairman.

Editorial Note to Wetlands Protection Act, MASS. GEN. LAWS ANN. ch. 131, [sections] 40 (West 1991 & Supp. 1998). The DEP regulations paraphrase this, and it appears that the committee was reduced to ten people, with no wetlands biologist.

(287) ROBINSON, supra note 59, at 35.

(288) Oliver A. Houck, Of Bats, Birds and B-A-T: The Convergent Evolution of Environmental Law, 63 Miss. L.J. 403, 444-45 (1994).

(289) Id. at 407.

(290) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(291) See supra Part III.C.3.

(292) See supra Parts III.C.3, III. F.

(293) See supra Parts III.A, III.B; see also John Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 242-50 (1990) (discussing the post-1970 Congressional adoption of specificity and transparency to control agency capture). 294 See supra Part III.F.

(295) See supra Part IV.E.

(296) Lujan v. Defenders of Wildlife, 504 U.S. 55 (1992); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990).

(297) Houck, supra note 288, at 467-70.

(298) MASS. REGS. CODE tit. 310, [sections] 10.05 (3)(a) (1997).

(299) The following regulations and statutory section quoted below work together for this interpretation:

(7) Requests for Actions by the Department (Appeals).

(a) The following persons may request the Department to act...

(b) Any person(s) permitted to request the Department to act under [MASS. REGS. CODE tit. 310, [sections] 10.05(7)(a) (1997)] may request the Department to issue a Superseding Determination of Applicability or to issue a Superseding Order...

(j) After issuance by the Department of a Superseding Order or a Superseding Determination, any person specified in [MASS. REGS. CODE tit. 310, [sections] 10.05(7)(a) (1997)], whether or not previously a participant in the proceedings, or any ten persons pursuant to [MASS. GEN. LAWS ANN. ch. 30A, [sections]10A (1992 & Supp. 1998)], may request an adjudicatory hearing.

MASS. REGS. CoDE tit. 310, [subsections] 10.05 (7) (a)-(b); (j) (1997). Furthermore,

   [n]ot less than ten persons may intervene in any adjudicatory proceeding as
   defined in section one, in which damage to the environment as defined in
   section seven A of chapter two hundred and fourteen, is or might be at
   issue; provided, however, that such intervention shall be limited to the
   issue of damage to the environment and the elimination or reduction
   thereof....

MASS. GEN. LAWS ANN. ch. 30A, [sections] 10A (West 1992 & Supp. 1998).

(300) Houck, supra note 288, at 469-70.

(301) Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433, 1449-51 (1993).

Cymie Payne, Attorney, United States Department of the Interior. The views expressed in this piece are my own and do not necessarily reflect the views of the Department of the Interior. I would like to express my appreciation for the excellent and insightful comments of Professors John P. Dwyer and Daniel B. Rodriguez.