The State Determines that Wyer’s Valley is Protected Under Article 97

Last month the Commonwealth ruled in favor of the Nantucket Land & Water Council’s position that the land protecting Nantucket’s sole public water supply remains subject to Article 97. The effect of this ruling on the proposed solar array remains unclear. While we are very supportive of efforts to increase and improve Nantucket’s use of alternative energy and to decrease our reliance on fossil fuels, it is also very important to consider the implications of all new construction projects, including solar installations.

The Nantucket Land & Water Council has been raising serious concerns over the solar installation proposed for the Wannacomet Water Company’s 1 Milestone Road Wyer’s Valley property for several years. The concerns around this project are two-fold. First, we have been asserting based on multiple legal opinions, that the property is protected under Article 97 of the Massachusetts Constitution because of the purpose for which it was acquired. Second, we are very concerned about the precedent that would be set by the proposed mitigation for on site rare and endangered species habitat. This mitigation is being proposed as a fee payment in lieu of physical mitigation. It has been acknowledged that this fee may not even stay on Nantucket, but may instead be used to benefit some off island location.

Article 97 of the Amendments to the Massachusetts Constitution bestows upon the people of the Commonwealth the right to clean water and the protection of other natural resources. Article 97 provides the most sacrosanct protection of land available under the law. Because we all collectively own public land, Article 97 requires a two-thirds vote of our elected representatives in the Legislature to change the use for which such land was acquired, designated or taken. Article 97 stems from the prior public use doctrine, which holds that public land devoted to a particular public purpose cannot be diverted to another purpose without explicit authorization. That authorization must come from the people of the Commonwealth, through their elected representatives in the Legislature, as well as other required local approvals.

The state Executive Office of Energy and Environmental Affairs (EOEEA) Land Division recently made the determination, in agreement with our legal position and contrary to the opposite opinion from Town counsel, that this property is in fact protected under Article 97 of the Constitution. This is incredibly important and significant because this property is home to our public water supply wells, drawing water from our aquifer to distribute to all community members on Town Water. When the acquisition of this property was authorized by a vote of Town Meeting in 1987, it was voted that the premises “…shall be maintained in their natural state for the protection of water supply and as a service area for water purposes for the benefit of the inhabitants of Nantucket.” The state has determined that the construction of the solar installation would constitute a disposition of that property or a “change in use” which, under Article 97, must be approved by a two-thirds vote of the state legislature, and that this disposition or change in use must be appropriately mitigated.

It is extremely important that the procedural requirements for the disposition of land protected under Article 97 are followed, including who gets to decide what use public lands may serve. Allowing otherwise would thwart the process that enshrines Article 97 and protects the people.

In this case, we have been advocating for the Town to properly address Article 97 protection. This property is one of the most significant parcels on the island because it lies directly above our public water wells. While the lease for the proposed solar installation is temporary, any number of new proposed uses would likely follow at the end of its 25 year life, especially once the site is cleared of existing trees and vegetation. We are gravely concerned about how future uses could impact this site and our community water. Article 97 is in place to help us protect our right to clean water. The long-term protection of this site and our public water supply must be a top priority for the Town. Our community’s health and wellbeing depends on it.

As the Town considers the implications of this and other projects, we hope they move forward with a comprehensive energy management plan for the island, which not only reviews all of the long-term opportunities for alternative energy generation, but also includes the big picture environmental cost benefit analysis necessary to make the best choices for the future of our energy demand as well as the future health of the community.