Emergency Regulations for Damage Clean Up and Repair Activities Following October 29-30, 2011 Snowstorm

BY EMAIL

TO: All Commonwealth of Massachusetts Municipal Conservation Commissions

FROM: Kenneth L. Kimmell, Commissioner

DATE: November 8, 2011

SUBJECT: Emergency Regulations for Damage Clean Up and Repair Activities Following October 29-30, 2011 Snowstorm

Damage from the October 29-30, 2011 Snowstorm occurred in many municipalities in the Commonwealth. In particular, extensive damage occurred to utility poles, electrical and telecommunication lines from fallen trees and tree limbs. To provide local officials flexibility to protect the public health, welfare, and safety where storm damage occurred, the Massachusetts Department of Environmental Protection ("MassDEP" or "Department") has promulgated emergency regulations to allow for expeditious cleanup of storm debris and repair, when the damaged occurred in wetland resource areas and waterways.

I apologize at the outset for the length of the attachments. However, I wanted to answer as many basic questions as possible, based on experience, so that you as municipal officials can respond efficiently to the questions you are likely to receive.

This package specifies the procedures to be used for post-storm cleanup activities. The following materials are included in this package:

• Wetlands Protection Storm Emergency Regulation at 310 CMR 10.62;
• Wetlands Protection Emergency Certification Form pursuant to 310 CMR 10.62(5);
• Coastal and Inland Wetland Restriction Acts Emergency Regulations at 310 CMR 12.21 and 310 CMR 13.24 respectively;
• 401 Water Quality Certification Storm Emergency Regulations at 314 CMR 9.14

Procedures under these emergency regulations have been varied from the normal provisions specified in the above referenced regulations to facilitate storm cleanup and property repairs, while ensuring that resource areas are adequately protected.

These procedures apply to all municipalities located within the Commonwealth, allow the work described in the Storm Emergency Regulations, and are effective through January 30, 2012.

Please note that these regulations do not allow work that is subject to an enforcement action commenced under the Wetlands Protection Act prior to October 29, 2011.

PROCEDURES TO BE FOLLOWED UNDER THE WETLANDS PROTECTION ACT

The Storm Emergency Regulations are intended to relax the normal requirements under 310 CMR 10.06 for work that is necessary to restore conditions as they existed on October 29, 2011, prior to the storm onset. For those activities not covered by the Storm Emergency Regulations, the Conservation Commission has the authority to make the initial decision as to the jurisdiction of M.G.L. c. 131, s. 40, on a case-by-case basis.

Since the primary purpose for these Storm Emergency Regulations is to provide timely relief for Conservation Commissions and applicants from the typical procedural requirements for work that is not likely to harm resource areas, each Conservation Commission may determine whether 310 CMR 10.62 should be applicable in its municipality. The Department has included a clause that makes 310 CMR 10.62 effective in the municipality, unless and until the Conservation Commission votes to affirmatively revoke the Emergency Regulations. To revoke the regulations in its community, the Conservation Commission must act by November 30, 2011. The Conservation Commission must notify the Department in writing and must post and publish notice of its decision to revoke the Emergency Regulations as specified at 310 CMR 10.62(1).

The Storm Emergency Regulations include a provision that allows certain activities to proceed with "notice only, no filing required" (see 310 CMR 10.62(2)). Under this provision, notice must be given to the Conservation Commission by November 30, 2011 and work may continue through December 30, 2011. The Department requires that this notification be made in writing by mail, email, or hand delivery.

If work to cleanup and repair damage cannot be completed by December 30, 2011 in accordance with the "notice only" provision, the Storm Emergency Regulations contain an additional provision at 10.62(3) for issuance of an Emergency Certification to extend the work period to January 30, 2012. 310 CMR 10.62(4) provides that Conservation Commissions may waive the requirement of a site visit prior to the issuance of an Emergency Certification. An Emergency Certification may be issued by one or more members of the Conservation Commission, or by employees of the municipality, provided they are designated to do so by the Conservation Commission. All Emergency Certifications must be in writing and issued on the attached form developed specifically for the October 29-30, 2011 Snowstorm.

If additional questions arise that cannot be answered by the Conservation Commission, you may contact the MassDEP Boston Office at 617-292-5602 or the appropriate MassDEP Regional Office.

PROCEDURES TO BE FOLLOWED UNDER THE 401 REGULATIONS

The 401 Water Quality Certification Regulations, 314 CMR 9.00, apply to the discharge of dredge or fill material to waters of the United States within the Commonwealth of Massachusetts. Activities conducted in compliance with 401 storm emergency provisions at 314 CMR 9.14 do not require further authorization.

Any questions regarding the Emergency Chapter 91 Regulations should be directed to the MassDEP Boston Office at 617-292-5602 or appropriate MassDEP Regional Office.