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Fundamentals of the Wetland Protection Act: Process & Procedures

Fundamentals of the Wetland Protection Act: Process & Procedures. Fundamentals for Conservation Commissioners Training Program. UNIT 3. Massachusetts Association of Conservation Commissions Creation of this Unit was funded in part with a grant from the Massachusetts Environmental Trust.

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Fundamentals of the Wetland Protection Act: Process & Procedures

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  1. Fundamentals of the Wetland Protection Act:Process & Procedures Fundamentals for Conservation Commissioners Training Program UNIT 3 Massachusetts Association of Conservation Commissions Creation of this Unit was funded in part with a grant from the Massachusetts Environmental Trust

  2. Wetland Values:Eight Interests of the Act • Private & Public Water Supply • Ground Water Protection • Pollution Prevention • Flood Prevention • Storm Damage Protection • Land Containing Shellfish • Fisheries • Wildlife Habitat

  3. Provisions for Protection of Landowner Rights • Clear Statement of Jurisdiction • Timetables • Performance Standards • Limit Projects Status • Provisions for Appeal

  4. 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

  5. Jurisdiction

  6. 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

  7. 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

  8. 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

  9. 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

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

  11. Inland Resource Areas • Land Under Water (LUW) • Bordering Vegetated Wetland (BVW) • Banks • Land Subject to Flooding • Bordering (BLSF) • Isolated (ILSF) • Riverfront Area

  12. 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

  13. Buffer Zones Apply To: • Inland • Banks • BVWs • Coastal • Banks • Beaches • Dunes • Salt Marshes

  14. The Regulatory Process Is the project within the jurisdiction? Site Visit Public Meeting Request for Determination Determination of Applicability

  15. The Regulatory Process Notice of Intent or Notice of Resource Area Delineation Site Visit Identification of resource areas Public Hearing Presumptions of Significance Should the project be considered a “Limited Project”? Performance Standards Orders of Conditions

  16. The Regulatory Process Certificate of Compliance Request of Certificate of Compliance Public Meeting Site Visit Certificate of Compliance

  17. 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

  18. Notice of Resource Area Delineation • Resource areas can be delineated using this form or the Notice of Intent

  19. Notice of Intent and Order of Conditions Days Form 3 or 4 Notice of Intent Form 3 or 4, Notice of Intent 21 Days Notice Notice 5 Public Hearing Public Hearing 21 Form 5 Order of Conditions Review Presumptions of Significance Review Performance Standards Review Mitigation Plan for Limited Projects

  20. 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

  21. Presumption of Significant Inland Wetlands Water Supply Groundwater Flood Control Storm Damage Control Pollution Control Fisheries Shellfish Wildlife Habitat • 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 X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X

  22. Presumptions of Significance Coastal Wetlands Water Supply Groundwater Flood Control Storm Damage Control Pollution Control Fisheries Shellfish Wildlife Habitat 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 X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X

  23. 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

  24. 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

  25. 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)

  26. 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

  27. 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)

  28. 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

  29. 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

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

  31. 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

  32. Enforcement Options • Notice of a violation • Enforcement Order • Civil action • Criminal action

  33. 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)

  34. Wildlife HabitatProtection for Physical and Biological Factors Providing: • Food • Shelter • Breeding areas • Over-wintering areas • Migration areas and travel corridors

  35. Protection for Wildlife Habitat • Protection for important habitat • Special protection for rare species 310 CMR 10.37 & 10.59 • Protection for vernal pool habitat 310 CMR 10.57 • Thresholds and wildlife habitat evaluations 310 CMR 10.60; Wetlands Policy 88-2; Wildlife Advisory #2; DEP’s MA Wildlife Habitat Evaluation Guidance, issued March 2006

  36. Protection for Rare Species Project Area on estimated habitat map? NO (Proceed) YES Submit Appendix A Actual Habitat? NO (Proceed) YES Any Short Term or Long Term Effects? NO (Proceed) YES DENIAL

  37. Protection for Rare Species Project Area on estimated habitat map? NO (Proceed) YES Submit NOI to NHESP Actual Habitat? NO (Proceed) YES Any Short Term or Long Term Effects? NO (Proceed) YES DENIAL

  38. What can happen as a result of working together • Added effectiveness • Cooperation and achievement of goals

  39. What is essential to be effective? Public Support

  40. MACC is Here to Help • Environmental Handbook for Massachusetts Conservation Commissioners • MACC Newsletters published bimonthly • MACC Website: maccweb.org • MACC Helpline: (617) 489-3930

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