Exploring A New Strategy For Marine Protection: Private Conservation Of Tidelands In Massachusetts

The coastal waters of the United States contain a significant and underrecognized element of the nation’s biological diversity. With increasing populations living near or on the U.S. coast, and many others flocking to coastal areas annually for recreation, degradation of near-shore habitats is widespread and the effects on biological diversity and productivity are alarming. As noted by the Pew Oceans Commission and U.S. Commission on Ocean Policy, real improvements in state and federal management of marine resources are needed; however, governmental agencies are plagued by budget reductions and increasing workloads. Private entities may be the best partners to provide innovative solutions. Traditionally, non-governmental organizations (NGOs) have played a substantial role in assisting public agencies but have limited their work to habitat restoration. Terrestrially, NGOs have played a large role in developing and testing new and innovative management approaches on the lands that they lease or own. It has been commonly assumed that the tools for estuarine and marine conservation must be substantially different from those for terrestrial conservation, in part because it is not possible to own parts of the ocean or to exclude areas from certain historic users. On the contrary, significant submerged land is available for lease and ownership in the U.S. This innovative approach has found traction across the U.S. This Article introduces the concepts of private conservation leasing and ownership of submerged lands and analyzes the potential for private entities to take interest in tidelands for conservation in Massachusetts. Part I provides the legal background of efforts by private parties to obtain proprietary rights over coastal and ocean resources for conservation, focusing on two projects spearheaded by The Nature Conservancy (Conservancy): conservation leasing in Washington and ownership of submerged lands in New York. Part II presents the authorities related to and management of tidelands in Massachusetts. Part III analyzes two mechanisms for private conservation in Massachusetts that allow licensing of tidelands for specific purposes, and evaluates their usefulness to private entities that may wish to undertake tidelands conservation. Part IV concludes with an assessment of the opportunity for private conservation efforts in Massachusetts with recommendations for entities that wish to pursue this emerging tool for marine conservation