The applicant appealed the Department of Environmental Protection's decision to deny it a wetlands permit to expand a parking area on a coastal dune that is part of a barrier beach. After a full hearing, the applicant failed to prove that the project would meet the performance standards for work on a coastal dune on a barrier beach. A final order of conditions denying the project therefore should be issued.
The applicant's proposed roadway does not satisfy the standards set forth in the wetlands regulations, 310 CMR10.00. Specifically, work in the buffer zone will not contribute to the protection of the interests of the WetlandsProtection Act. In addition, the proposed work will alter wetlands in excess of the wetlands replication the applicanthas agreed to provide. Consequently, the wetlands permit should be denied.
In an appeal from a superseding order of conditions, sole issue was whether a large water body adjacent to the project site is a river or a pond. Evidence demonstrates the absence of unilateralflow in the water body, and hence it is a pond and not a river. Because the water body is not a river, there is no riverfront area on applicant's property and his project is not required to meet riverfront area performance standards.
Final Decision - Order of Dismissal (April 17, 2008). A wetlands permit appeal challenging the construction of fixed piers and related dredging, bulkheading and floating pier installation was dismissed for mootness when the petitioners withdrew their appeal.
Following project revisions and the DEP's issuance of a now final wetlands permit, the appeal is dismissed as moot.
Wetlands permit appeals challenging residential subdivision, roadway and drainage structure construction were dismissed for mootness after the abutters withdrew the appeals.
The project proponents' motion for summary decision is granted following the petitioners' failure to raise a material factual dispute regarding their claims of coastal wetlands alteration and compliance with relevant performance standards, significance of the coastal bank to the protection of groundwater supply, compliance with the DEP's stormwater policy and adequacy of the permit application.
In this wetlands permit appeal, the petitioners have failed to raise a material factual dispute regarding their claims ofinformation insufficiency, noncompliance with standards for work in a coastal bank and its buffer zone, alteration of land subject to coastal storm flowage, protection of groundwater supply, and compliance with the DEP's standards for managing stormwater.
The applicant's wetlands permit must be vacated because the proposed project cannot be built and the applicant cannot submit a revised project more than four months after a full hearing was held on the merits of the original project.
Appeal from wetlands superseding determination of applicability, issued by the Massachusetts DEP on March 7, 2006 under the Wetlands Protection Act, M.G.L. c. 131, § 40 regarding each of two storm-water detention basins at Hampshire Mall on Russell Street (Route 9) in Hadley. Held:(1) neither of the detention basins in Area 1 contains a bordering vegetated wetland, because the vegetated wet area in each basin does not border on a stream; (2) Because no stream is present at either detention basin and neither basin is a pond, there is no land under water bodies and waterways at either detention basin; (3) As no bordering vegetated wetland is present at either detention basin, Pyramid Mall's claim that the detention basins cannot be simultaneously maintained and protected as wetland resource areas under M.G.L. c. 131, sec. 40 is dismissed as moot;(4) Because the parties agree that there are intermittent streams with associated bank in Area 2, work in one area of the property requires a wetlands permit because it contains bank; (5) However, a final determination of applicability should be redacted to eliminate findings as to the presence of other types of wetland resource areas in the same area. These should await determination when Pyramid Mall's pending wetlands permit application for work at the Mall property is reviewed.
The Town cannot obtain a water quality certificate without a variance because of the prohibitions concerning the discharge of dredged or fill material to outstanding resource waters at 314 CMR 9.06 (4) and 9.06 (5). The project may receive a wetlands permit, however, because it satisfies the limited project criteria at 310 CMR 10.53 (3)(l), complies with the DEP's stormwater policy, and the spillway and stilling basin design meets regulatory requirements.
Recommended Final Decision (April 3, 2008). A stream running through a parcel on which a developer intended to build a residential subdivision was intermittent and therefore lacked an associated riverfront area, because it was not significantly affected by drawdowns, withdrawals or impoundments at an adjoining golf course when a no-flow condition was documented during a four-day non-drought period.
Vacates Department of Environmental Protection's determination that petitioner's property contains riverfront area pursuant to 310 CMR 10.58; the water body behind Mr. Zeraschi's property is a manmade canal within the meaning of 310 CMR 10.58(2)(a)(1)(g) and, thus, the water body has no riverfront area.