Legislators, agencies debate draft Article 97 rules; notice, local control and enforcement top concerns

Undersecretary Stephanie Cooper of the Executive Office of Energy and Environmental Affairs and Commissioner Adam Bakke of the Division of Capital Asset Management and Maintenance testified Wednesday before the Joint Committee on State Administration and Regulatory Oversight about draft regulations implementing Article 97 and the Open Space Act.

The hearing focused on how the draft regulations would affect public notice, municipal review and the state’s role in appraisals, waivers and enforcement. Lawmakers repeatedly raised concerns that the draft rules could centralize decision-making at the executive level, reduce local review requirements and leave unclear enforcement pathways if protected land were used without legislative approval.

“The Open Space Act did not change the legislature’s role in dispositions of Article 97,” Undersecretary Stephanie Cooper told the committee. “Any change to remove Article 97 protection continues to require a two-thirds vote of the legislature as required by the constitution.”

Cooper described the administration’s public outreach on the draft rules, saying EEA held three public hearings and extended the comment period after strong public interest. She said the office is working through public comments and intends to publish final regulations “as soon as is practicable.”

Committee members pressed several recurring points: whether the draft’s 21-day public comment window (stated in the draft) is sufficient for small or rural municipalities; whether the proposed regulations expand the class of parties who may act as “proponents” to include private developers; and whether the regulations reduce existing local checks — for example, unanimous votes by municipal conservation or parks commissions that appear in the agency’s 1998 disposition policy.

On notice period length, Cooper said the administration heard many requests for a longer comment period and that the draft’s 21 days is under active consideration. “We very much take it” that a longer period may be helpful, she said, while noting the agency must balance competing public comments as it finalizes the rule.

Lawmakers also asked about so-called waiver authority in the draft regulations. Cooper and other agency witnesses said the draft narrows the circumstances under which the secretary may waive replacement-land requirements, and that the statute itself limits waiver authority in two specific circumstances: exchanges between eligible holders for the same purpose, and “de minimis” impacts (under 2,500 square feet) where the act authorizes that approach.

Deputy General Counsel Reed Porter of EEA cited court precedent on temporary permits and Article 97, noting the appeals court’s 1987 decision in Miller v. Commissioner of DEM held that a one‑year revocable permit for a cross‑country ski concession was not an Article 97 action. “That one year was the finding in this particular case,” Porter said, and the office advised that determinations about limited‑duration permits must be made case by case.

Commissioner Adam Bakke (DCAM) addressed leases and dispositions of state‑owned Article 97 land. He said long leases or transfers of property rights that change the public use will usually require legislative authorization, and that whether a lease constitutes a disposition depends on the nature of the rights conveyed. “I would expect so,” Bakke said when asked whether a long-term lease that conveyed rights inconsistent with public use would require an Article 97 action.

Several legislators pressed the agencies about whether the draft regulations would remove or reduce local bodies’ approval requirements that appear in the older DCAM policy. Agency witnesses said the draft regulations and the Open Space Act do not alter the constitutionally required two‑thirds legislative vote; they also said local approvals remain part of the process but that the longstanding 1998 policy language about unanimous votes would be revisited as the agency updates policy to align with the new statute and regulations.

Committee members repeatedly raised enforcement: if a party proceeded without following the Article 97 process, who enforces the law and what penalties apply? Deputy Inspector General O’Neil described the Inspector General’s role reviewing appraisals and related methodology, saying, “We received the appraisal and then we have it reviewed to ensure that its methodology is consistent with USPAP.” But O’Neil and other witnesses told legislators that the Open Space Act establishes an informational and procedural role for EEA in collecting materials for the legislature, and that the act does not itself create an administrative enforcement mechanism with civil penalties; alleged violations are typically resolved in court or by the attorney general’s office.

On appraisals and valuation, O’Neil said the Inspector General’s office reviews appraisal methodology against Uniform Standards of Professional Appraisal Practice (USPAP) and forwards its review to DCAM. Committee members asked whether the IG’s 30B manual or the federal “Yellow Book” appraisal standards should be referenced in state regulations; O’Neil said the IG would review the question and noted the federal guidance is detailed, but did not commit to a specific regulatory text.

Lawmakers also sought clarity about whether large‑scale renewable energy or transmission projects could be counted under the draft’s natural‑resource‑value criteria (which include climate‑resiliency functions such as carbon sequestration and flood protection). Cooper said natural resource value refers to ecological services and to features that advance resilience and biodiversity, and that the draft’s site evaluation tool draws on state data layers such as BioMap, habitat, wetlands and flood zones. She said the tool is updated periodically and that some source layers (open‑space data) are refreshed roughly every six weeks.

The hearing included multiple requests that the agencies produce clearer public guidance on (1) how proponents — whether public entities or private developers working with municipalities — should consult with local officials and EEA before filing legislation, (2) what constitutes “limited duration” for permits or leases, (3) how waiver determinations will be documented for the legislature, and (4) what remedies exist if a party proceeds without legislative authorization.

After testimony and questioning, the committee closed the hearing. A motion to adjourn passed on a voice vote.

Why this matters: Article 97 provides constitutional protection for public conservation lands and requires a two‑thirds legislative vote to change their use. The Open Space Act and these draft regulations are intended to standardize how proposals reach the legislature and how the administration compiles the information the legislature will use. The committee’s questions highlight tensions between statewide standardization, the role of municipal stewards, and the practical enforcement and transparency mechanisms available to communities concerned about preservation of public lands.