Lawmakers press state agencies on draft Article 97 rules, public notice and replacement standards

At a hearing of the Joint Committee on State Administration and Regulatory Oversight, state lawmakers questioned Executive Office of Energy and Environmental Affairs officials and agency partners about draft regulations implementing Article 97 of the Massachusetts Constitution and the Open Space Act (Chapter 274 of the Acts of 2022). Committee chairs and members pressed officials on public-notice rules, how replacement land would be chosen, and the narrow circumstances in which the secretary may waive replacement requirements.

The draft regulations, posted for comment in November 2024, implement the Open Space Act’s requirements and formalize how proponents and municipalities submit information to the executive branch and the Legislature, Undersecretary Stephanie Cooper told the committee. "Chapter 274 did not change the legislature's role in dispositions of Article 97," Cooper said, adding that "any change to remove Article 97 protection continues to require a two-thirds vote of the legislature as required by the constitution." The executive office has held public hearings and extended comment periods and is revising the draft before final promulgation, she said.

Why it matters: Article 97 protections are enshrined in the state constitution to protect parkland, open space and other public lands for conservation and public use. The Open Space Act created a procedural framework for how Article 97 proposals reach the Legislature; the draft regulations set the process the executive office will use to evaluate proposals and report findings to lawmakers.

Officials described several key elements in the draft rules. The regulations require public notice of proposed dispositions and conversions and direct proponents to provide replacement land that is in a "comparable location" and that will "serve substantially the same population," Cooper said. Where replacement land is not feasible, the secretary may evaluate and report on whether funding in lieu is acceptable, using criteria spelled out in the act and the draft rules.

On the treatment of environmental-justice populations, Cooper said the rules require that replacement land proposed as mitigation "serve the same population" when a disposition affects an environmental-justice community. The draft natural‑resource evaluation tool that EEA developed will be used to assess natural-resource values of sites and proposed replacement lands; Cooper said the tool draws from multiple data sources, and that "open space data is updated approximately every six weeks." The office committed to refreshing those layers on a regular basis as implementation proceeds.

Committee members repeatedly asked where the line is drawn between routine permits and Article 97 actions. Cooper and deputy legal staff cited a court precedent, Miller v. Commissioner of DEM (1987), in which the appeals court found that a one‑year revocable permit for a ski concession was not an Article 97 action. Cooper said courts have not adopted a fixed numeric limit and that determinations about "limited duration" permits or leases must be made case by case.

Several legislators raised concerns about the extent of discretionary authority the draft regulations give the secretary and asked for clearer distinctions between existing policy and proposed regulatory changes. Cooper repeated that the draft regulations are intended to implement the Open Space Act’s statutory duties — including issuing natural‑resource determinations, evaluating alternatives analyses and reporting findings to the Legislature — and that the Legislature retains final authority to approve any disposition.

The committee did not take formal votes on the regulations at the hearing. EEA officials said they will continue to consider public comments and that finalized regulations will be promulgated "as soon as is practicable." The committee may issue recommendations to EEA based on today's testimony.

Ending: Committee members said they will review the materials and may propose recommendations; EEA said it plans further revisions before filing final regulations.