This program will discuss and analyze the SJC’s recent decision in Pepin v.
DFW, which upheld the Division of Fisheries and Wildlife’s “Priority Habitat”
regulations under the Massachusetts Endangered Species Act. The Department
of Fish and Game’s General Counsel will briefly summarize MESA and its
implementing regulations and frame the legal issues. Counsel who argued
the case will then discuss the SJC’s decision, focusing on the differences
between the “Significant Habitat” program established by MESA, and the Priority
Habitat program established by DFW regulations to implement MESA’s “take”
In Pepin, the Court held, among other things, that the statutory procedures
applicable to the designation of Significant Habitat are not required for
Priority Habitat mapping because it is a flexible regulatory program, which does
not block or restrict development to the extent required by statute for work in
Significant Habitat. The Panelists will also briefly walk through DFW’s
review process for projects in Priority Habitat, including opportunities for
property owners to challenge agency determinations.