Fundamentals of the Wetland Protection Act:

Process & Procedures

Massachusetts Association of Conservation Commissions

Creation of this Unit was funded in part with a grant from the Massachusetts Environmental Trust

Fundamentals for Conservation Commissioners

Training Program UNIT 3

Wetland Values:Eight Interests of the Act

1 Private & Public Water Supply2 Ground Water Protection3 Pollution Prevention4 Flood Prevention5 Storm Damage Protection6 Land Containing Shellfish7 Fisheries8 Wildlife Habitat

Provisions for Protection of Landowner Rights

• Clear Statement of Jurisdiction

• Timetables• Performance Standards• Limit Projects Status• Provisions for Appeal

Exempt Activities

• Bonded Bridge Repair Projects• Active Agriculture (maintenance or

improvement)– Farming– Cranberries– Forest Products

• Active Aquaculture (maintenance or improvement)

• Approved Mosquito Control• Existing Utilities• Minor Projects

Jurisdiction

Jurisdiction: Activities

ACTIVITIES subject to regulation under the Act are Activities that will:

Remove, Fill, Dredge, or Alter a Resource Area

(A)Activities within Resource Areas

•That will remove, fill, or alter the resource area are subject to regulation

Jurisdiction: Activities (cont.)

(B)Activities within Buffer Zones

•That will remove, fill, and dredge or alter a resource area are subject to regulation

•That will alter the buffer zone but not remove, fill, or dredge or alter a resource area are NOT subject to regulation but may require review or conditions to make this determination

Jurisdiction: Activities (cont.)

(C)Activities Outside Resource Areas and Buffer Zones

•Are NOT subject to regulation unless and until the activity actually alters a resource area

•Exception: activities that result in a point source discharge within a resource area or a buffer zone may be reviewed in order to condition the discharge

Jurisdiction

I. AREAS subject to Protection Under the Act [310 CMR 10.02(1)]

(A) Any BANK The OCEAN

Any FRESHWATER WETLAND Any ESTUARY

Any COASTAL WETLAND Any CREEK

Any BEACH Any RIVER

Any DUNE BORDERING Any STREAM

Any FLAT ON Any POND

Any MARSH Any LAKE

Or Any SWAMP

Jurisdiction (cont’d)

(B) LAND UNDER ANY OF THE WATER BODIES LISTED ABOVE

(C) LAND SUBJECT TO TIDAL ACTION

(D) LAND SUBJECT TO COSTAL STORM FLOWAGE

(E) LAND SUBJECT TO FLOODING

AND

(F) RIVERFRONT AREAS

II. BUFFER ZONE= Land within 100 feet horizontally of any area listed in (A) above [310 CMR 10.9(2)]

Inland Resource Areas

• Land Under Water (LUW)• Bordering Vegetated Wetland (BVW)• Banks• Land Subject to Flooding

– Bordering (BLSF)– Isolated (ILSF)

• Riverfront Area

Coastal Resource Areas• Salt Marsh• Land Under Salt Ponds• Land Under Ocean• Rocky Intertidal Shores• Coastal Beaches(& tidal flats)• Coastal Banks• Coastal Dunes• Barrier beaches• Land Containing Shellfish• Anadromous/Catadromous Fish Runs (DMF)• Designated Port Areas (DEP)• Riverfront Areas

Buffer Zones Apply To:

• Inland– Banks– BVWs

• Coastal– Banks– Beaches– Dunes– Salt Marshes

The Regulatory Process

Is the project within the jurisdiction?

Site Visit

Public Meeting

Request for Determination

Determination of Applicability

The Regulatory Process

Site Visit

Identification of resource areas

Public Hearing

Presumptions of Significance

Should the project be considered a “Limited Project”?

Performance Standards

Notice of Intent or

Notice of Resource Area Delineation

Orders of Conditions

The Regulatory Process

Certificate of Compliance

Request of Certificate of Compliance

Public Meeting

Site VisitCertificate of Compliance

Determination of Applicability

Form 1: Request for Determination

Site Visit

Public Meeting

Subject to Jurisdiction?

NO (negative) YES

Alter Resource Area?

NO (negative) YES

Notice of Intent

Notice of Resource Area Delineation

• Resource areas can be delineated using this form or the Notice of Intent

Notice of Intent and Order of Conditions

Form 3 or 4

Notice of Intent

Public Hearing

Notice

5

21

21

Days

Days

Form 3 or 4, Notice of Intent

Public Hearing

Notice

Review Presumptions of

Significance

Review Performance

Standards

Review Mitigation Plan for Limited

Projects

Form 5 Order of Conditions

Notice of Intent• Minimal Submittal Requirements

– Form 3– Plans, Calculations, etc.(1”=50’)– Title 5 Plans (demonstrating compliance with

410 CMR 15.00)– Correct Fee

• Other Requirements– Other permits (zoning variances, Board of

Appeals, floodplain or wetlands zoning, gravel removal)

– Professional assessments as required

Presumption of Significant Inland Wetlands

Bordering Vegetated Wetlands

Banks

•Impervious cover

Land Under Water

•Impervious cover

Land Subject to Flooding

•Bordering: within 100’ or 10 year floodplain

•Isolated:

•Pervious cover

•Organic cover

•Vernal Pool

Riverfront Area

Water Supply

Groundwater Flood Control

Storm Damage Control

Pollution Control

Fisheries Shellfish Wildlife Habitat

X X X XX

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X X

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Presumptions of Significance Coastal

Wetlands

Salt Marshes

Land Under Salt Ponds

Land Under Ocean

Rocky Intertidal Shores

Coastal beaches(& Flats)

Coastal Banks

Coastal Dunes

Barrier Beaches

Land Containing Shellfish

Anadromous/Catadromous Fish Runs

Designated Port Areas (Land Under Ocean)

Riverfront Areas

Water Supply

Groundwater Flood Control

Storm Damage Control

Pollution Control

Fisheries Shellfish Wildlife Habitat

X

X

X

X

X

X

X

X

X

X

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X

Work Standards• Activities within Resource Areas

Must meet Performance Standards, unless:

– activity is exempt– Presumptions of Significance are

overcome– activity is a Limited Project, or– variance granted by the

Commissioner of DEP

Work Standards (cont’d)

• Activities within Buffer Zones– conditions shall be imposed to protect the

statutory interests supported by the adjacent resource areas

– no specific performance standards for buffer

zones except on Simplified Review projects

Point Source Discharges– should comply with DEP guidance for stormwater discharges– must not adversely impact ability of resource areas to contribute to the 8 interests of the Act

Stormwater Management Policy

Approach (Regulatory Responsibility)– Existing discharges-state Clean Waters Act– New development- Wetlands Protection Act

Applicability (as of Jan.2, 2008 – now by regulation)All projects except:– Single family house projects– Small subdivisions (depends on proximity to

critical areas)

Limited Projects (Examples)• New Agriculture (i.e. conversion)• Permanent forestry access roads• New public utilities• New roadway or driveway(if no reasonable alternative

exists)• Maintenance of beaches, boat launching ramps existing

prior to 4/1/83• Maintenance of structures existing (4/1/83)• Maintenance of road drainage• Widening of an existing public roadway• Wildlife impoundments• Lake drawdown for dam repair• Public water supply wells• Water-dependent uses

Work Standards for Limited Projects

• Strict adherence to performance standards for resource areas is not required.

• Limited Project must avoid and minimize impacts to resources and the eight interests of the Act.

• Orders of Conditions should contribute to the protection of the eight interests of the Act.

• Adverse impacts to rare species habitat are prohibited

• Limited Projects may be denied if:– impacts will be too large, or– sensitive areas will be affected (i.e. ACEC or

water supply)

Minor Project Exemptions

• Certain projects in Buffer Zones– Unpaved private walkways– Fencing (if not barrier to wildlife), stone

walls, cordwood stacks– Vista pruning– Planting native plants– Conversion of lawn > 50 ft from resource to

accessory uses e.g. decks, sheds, pools– Conversion from impervious to vegetated

surfaces– Temporary exploratory work for planning

and design, if negligible impacts

Orders of Conditions

• Are Used to Permit or Deny Proposed Activities

• Establish Conditions for Work• Must Ensure that Performance

Standards are Met, or• Conditions should be Applied to

Minimize Impacts for Limited Projects

Appeals

Who May Appeal:• Applicant• Owner• Abutter• Aggrieved Party• 10 Local Citizens• DEP

Certificate of Compliance

• Requested by the Applicant after work has been completed

• Issued or denied by the Conservation Commission(or DEP for superseding Orders of Conditions)

• Indicates work has been completed in compliance with an Order of Conditions

• May contain conditions, such as for on-going maintenance or monitoring

Enforcement Options

• Notice of a violation• Enforcement Order• Civil action• Criminal action

Relationship to Federal Regulations

• For small wetland alternatives, an Order of Conditions serves as a federal s.404 permit

• DEP regional offices review projects (NOIs) for compliance with state water quality standards (as per s.401 of the Clean Water Act)

• Federal regulations have jurisdiction over some isolated wetlands (SWANCC)

Wildlife Habitat

Protection for Physical and Biological Factors Providing:

• Food• Shelter• Breeding areas• Over-wintering areas• Migration areas and travel

corridors

Protection for Wildlife Habitat

• Protection for important habitat• Special protection for rare species 310 CMR 10.37 & 10.59

• Protection for vernal pool habitat310 CMR 10.57

• Thresholds and wildlife habitat evaluations310 CMR 10.60; Wetlands Policy 88-2; Wildlife Advisory #2; DEP’s MA Wildlife Habitat Evaluation Guidance, issued March 2006

Protection for Rare SpeciesProject Area on estimated habitat map?

NO (Proceed) YES

Submit Appendix A

Actual Habitat?

NO (Proceed) YES

NO (Proceed)

YES

DENIAL

Any Short Term or Long Term Effects?

Protection for Rare SpeciesProject Area on estimated habitat map?

NO (Proceed) YES

Submit NOI to NHESP

Actual Habitat?

NO (Proceed) YES

NO (Proceed)

YES

DENIAL

Any Short Term or Long Term Effects?

What can happen as a result of working together

• Added effectiveness

• Cooperation and achievement of goals

What is essential to be effective?

Public Support

MACC is Here to Help

• Environmental Handbook for Massachusetts Conservation Commissioners

• MACC Newsletters published bimonthly

• MACC Website: maccweb.org• MACC Helpline: (617) 489-3930