Asked by the Martha’s Vineyard Commission (MVC) for a formal opinion, the regional regulatory agency’s legal counsel has concluded that the commission has jurisdiction over not only the ocean waters off the shores of the six Vineyard towns, but over the ocean waters off the Elizabeth Islands’ shores as well.
The Elizabeth Islands form the town of Gosnold, the seventh Dukes County town. Cuttyhunk, the westernmost island in the town of Gosnold, is the most heavily populated of the chain and the municipal seat. The state’s Ocean Plan has designated ocean waters west of Cuttyhunk as a likely site for significant wind energy development.
Eric Wodlinger, the MVC lawyer, wrote on December 11 in a seven-page opinion letter that the “commission’s jurisdiction extends over all of the ocean waters within Dukes County, which includes the ocean waters within the three-mile limit of the Commonwealth’s marine jurisdiction; therefore, if the statutory criteria for designation of a DCPC are met, then the commission can create a DCPC that includes the ocean waters and land seaward of the low water mark in the vicinity of the Elizabeth Islands.”
This authority exists in the enabling legislation’s District of Critical Planning Concern (DCPC) process. The MVC may designate areas – land and water areas – and then establish guidelines for protection of such areas. Towns must follow the guidelines to safeguard the areas.
Islanders anxious to protect the MVC’s jurisdiction over the near-shore waters, which the state has identified as likely locations for wind energy factories, pressed the commission members to seek Mr. Wodlinger’s opinion of whether the regional agency’s jurisdiction extends to ocean waters and the land under water seaward of the low water mark. They also wanted to know if that jurisdiction extended to the ocean waters surrounding Gosnold.
Mr. Wodlinger’s extensive analysis and his resulting advice finds that the MVC jurisdiction does extend beyond the shore, as far out as the state claims authority, or three miles. The basis for the finding is generally that because the commission has all the authority that a municipality has, and more, it benefits from the legislature’s grant of authority to towns to protect marine resources, including fisheries, but also shores threatened with erosion, embayments, and great ponds. And if the necessary steps to create this protection require extraordinary regulation, then that is exactly what the MVC was created to add to the municipal regime. It would be absurd to argue, Mr. Wodlinger finds, that the MVC’s unusual powers stopped at the low water mark.
As to whether the waters off Gosnold shores fall under the MVC jurisdiction, Mr. Wodlinger acknowledges the “plain” language of the commission’s enabling legislation, which provides the MVC “shall have the responsibilities, duties, and powers established herein over the land and waters in the county of Dukes County with the exception of the Elizabeth Islands…,” the Indian lands, and certain lands owned by the Commonwealth.
If a lay reader of these words were to conclude that this plain language excludes the land and the waters of the Elizabeth Islands, Mr. Wodlinger would disagree.
He calls this exception “purely geographical” and argues, “By their plain language, these exceptions do not purport to withdraw the ocean waters or land seaward of the low water mark from the Commission’s jurisdiction.”
Vineyard interests would like Gosnold to join forces in the effort to limit state control over near-shore energy facilities. They’ve employed a carefully calibrated approach, both demonstrating through Mr. Wodlinger’s opinion that the MVC already has authority over Gosnold waters when, for the moment, Gosnold residents may have thought it does not, and at the same time extending to Gosnold a helpful hand on grounds that no matter the strength of the MVC claim, the two Islands working together in negotiations with the state have a better chance of getting what they want than either does alone.
Reached at Cuttyhunk yesterday, Malcolm Davidson, chairman of the Gosnold selectmen, said, “I was sent a copy of that [the Wodlinger opinion] yesterday. I did read through it once. The opinion was rendered to the MV Commission by its counsel, and it suggests that the MV Commission has jurisdiction over the waters of Dukes County, including the waters of the town of Gosnold, for purposes of designating areas of critical concern. Whether that opinion is correct or not, I’m not sure. I haven’t reviewed it with town counsel, but I’m not sure it has any immediate impact on anything.
“Everyone is tending to be cordial and work through whatever comes up, but this will play out over time.”