| Date: | 08/14/2009 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | DEP-06-371 |
Appeal by petitioner-requestor Pyramid Mall of Hadley Newco, LLC from from a wetlands superseding determination of applicability, issued on March 7, 2006 under the Wetlands Protection Act, M.G.L. c. 131, § 40, in which the Massachusetts Department of Environmental Protection (DEP) found that (1) each of two storm-water detention basins at Hampshire Mall on Russell Street (Route 9) in Hadley comprising "Area 1,"one along the Mall property's eastern boundary and one along its western boundary, and (2) an area between the Mall property's southern boundary and parking near a cinema at the rear of the Mall building, and an area in the Mall property's northeastern corner, comprising "Area 2,"contained wetland resource areas (bank, bordering vegetated wetland and land under a water body) within which work was subject to regulation under the Act.
Upon motions by the original determination of applicability requestor and intervenor ten residents group for a partial summary decision sustaining DEP's superseding determination, and an opposition by Pyramid Mall considered to be a cross-motion for partial summary decision on the issue of whether either of the detention basins in Area 1 contains a bordering vegetated wetland:
(1) A partial summary decision in Pyramid Mall's favor determines that 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, and a final determination of applicability should recite this determination;
(2) Because no stream is present at either detention basin and neither basin is a pond, a partial summary decision in Pyramid Mall's favor determines that there is no land under water bodies and waterways at either detention basin, and a final determination of applicability should recite this determination as well;
(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, § 40 is dismissed as moot;
(4) Because the parties agree that there are intermittent streams with associated bank in Area 2, the superseding determination is sustained to the extent it determines that work in Area 2 is subject to regulatory jurisdiction under M.G.L. c. 131, § 40 and 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 Area 2, because (a) neither DEP's superseding determination nor the conservation commission's earlier determination of applicability identified wetland resource areas other than bank existing in Area 2 or where these areas were located, (b) the evidence offered by the parties does not include this information, and
(c) a more complete record regarding the identification and boundaries of wetland resource areas other than bank should be developed, and these jurisdictional issues should be determined initially based upon that record, when Pyramid Mall's pending wetlands permit application for work at the Mall property is reviewed.
a. Introduction: site and dispute
The locus of interest here is the site of the Hampshire Mall in Hadley, Massachusetts owned by petitioner Pyramid Mall of Hadley Newco, LLC. Built in the late 1970s on what had been farmland with a system of drainage ditches, the Mall occupies an irregular 51.7-acre parcel at the southeastern corner of the intersection of Russell Street (Route 9) and South Maple Street known as Parcel 1A. See attached Sketch.
Parcel 1A is bounded on the south by the Boston and Maine Railroad, on the north by Russell Street (Rt. 9), and on the west by South Maple Street. Within the eastern half of Parcel 1A is a landlocked parcel (Parcel 1A-1) occupied by a Target store and associated parking. Pyramid Mall does not own the Target parcel. The Hampshire Mall building adjoins the Target store's western side and houses a food court, three stores (from east to west: Best Buy, Dick's and JC Penney) and in the rear, a movie theater. The Mall building and Target store form a building complex that extends in an east-west direction across the center of parcels 1A-1 and 1A. Paved parking areas adjoin the southern, western and northern sides of the building complex. Traffic enters and leaves these parking areas from a single entrance/exit on Russell Street and from two entrance/exits on South Maple Street.
Storm-water runoff from the parking areas is directed to either of two detention basins surrounded by earthen berms. One of these basins is located along Parcel 1A's eastern side close to the Target store, within a triangular area framed on two sides by a "jog" in the boundary line (the eastern detention basin). The other is located in Parcel 1A's southwestern corner, between South Maple Street and the parking area alongside the JC Penney store (the western detention basin). The parties have referred to the two detention basins collectively as "Area 1." Both detention basins were part of the Hampshire Mall construction authorized by a wetlands order of conditions issued by the Hadley Conservation Commission in 1978, and both of them were enlarged pursuant to another order of conditions that the Conservation Commission issued in 1998. [fn. 1]
At issue here is whether either of these detention basins contains a vegetated wetland that borders on a "stream" and is a "bordering vegetated wetland," a type of wetland resource area within which work is subject to regulation under the Wetlands Protection Act, M.G.L. c. 131, § 40. See 310 CMR 10.02(1) (definition of "areas subject to protection under M.G.L. c. 131, § 40"), 310 CMR 10.04 (definitions of "bordering" and "stream"), and 310 CMR 10.55(2)(a)
(definition of "bordering vegetated wetlands").
Also at issue is whether there are wetland resource areas-bordering vegetated wetland,see 310 CMR 10.55, bank, see 310 CMR 10.54, and land under water bodies and waterways, see 310 CMR 10.56-in areas along the periphery of Parcel 1A that comprise "Area 2." The largest portion of this area extends roughly from the western to the eastern detention basins, between the parking area behind the Mall building/Target store and Parcel 1A's southern boundary, and includes Parcel 1A's southeastern corner, within which several drainage ditches flow intermittently. Area 2 also includes the northeast corner of Parcel 1A along Russell Street (Route 9). An intermittent stream, originating north of Route 9, flows through this corner of Parcel 1A and onto adjacent property to the east. [fn. 2]
Detention basins such as those at the Hampshire Mall site are designed to intercept storm-water running off from paved parking areas, building roofs and other impervious surfaces during rain events. This reduces the volume and speed of peak storm-water flows that could otherwise flood and erode surrounding areas and overtop downhill streams, ponds and other water bodies. It also allows sediments and pollutants carried by the storm-water volume to settle out in the basin before water percolates through underlying soils to groundwater or resumes its downhill flow. For these reasons, detention basins may be critical components of storm-water management systems as a matter of sound engineering practice. Wetland permits may also require them, particularly for projects that increase impermeable surface areas and runoff, such as the construction or expansion of shopping malls or shopping centers. [fn. 3]
Detention basins cannot hold an unlimited volume of storm-water, however. Although some of the detained storm-water will evaporate or enter groundwater (via the basin's substrate and underlying soils), the remaining storm-water must be released so that the basin does not overflow. Without appropriate controls, however, the release of detained water could pose hazards to downstream wetlands and water bodies similar to those the basin was designed to
prevent, including erosion, sediment buildup, vegetation damage and flooding. Detention basin design may include, thus, additional structures to control the volume, velocity and pollutant load of the water exiting the basin. That is the case here.
Each of the two detention basins at Parcel 1A is surrounded by an earthen berm that would contain the standing water within the basin if the basin had no outlet. There is an outlet at each detention basin, however. At the southern end of each detention basin is a rectangular opening into a 1.5-foot-wide and 4-foot-long concrete box control structure that projects into the basin from the berm above it. Mounted into this opening is a trash rack (a set of parallel steel
bars mounted vertically in concrete intended to trap larger debris) through which water from the basin passes directly before entering the concrete box control structure. The concrete control box structure has an approximately 2.5-foot-deep sump that holds water entering it, and, as well, an outlet at its other end, opposite the trash rack, through which water exits when it reaches the level
of an outlet opposite the trash rack. [fn. 4]
When water in the concrete box control structure reaches this level at the western detention basin, it enters an 18-inch-diameter pipe leading directly to the subsurface town drainage system in South Maple Street. [fn. 5] Water exiting the concrete box control structure at the eastern detention basin follows a different path. After rising to the level of the concrete box control structure's outlet, it enters a 24-inch-diameter, 30-foot-long concrete pipe ending at an outflow channel in the ground. [fn. 6] This outflow channel runs southward approximately
110 feet, across Parcel 1A's eastern boundary and to a drainage ditch running at a right angle to it on the adjacent Allard's Farm parcel. [fn. 7] From this point, water flows within the drainage ditch in a northeasterly direction approximately 750 feet to a pond that also receives flow from other ditches draining areas to the east and south. [fn. 8]
Both detention basins were built in an area of low-permeability soils, and as a
consequence, neither basin loses much water volume through infiltration to groundwater. The resulting combination of standing water and saturated soil conditions in the basins have promoted the growth in each of them of vegetation characteristic of bordering vegetated wetlands, including cattails (Typha latifolia) and purple loosestrife (Lythrum salicaria). [fn. 9]
To be classified as a bordering vegetated wetland under DEP's Wetlands Protection Regulations, however, each of these detention basin wetlands must border on a water body such as a stream. See 310 CMR 10.02(1) and 10.55(2)(a). [fn. 10] Two additional definitions are pertinent in determining whether this is the case. DEP's Wetlands Protection Regulations define a "stream" as "a body of running water, including brooks and creeks, which moves in a definite channel in the ground due to a hydraulic gradient, and which flows within, into or out of an Area Subject to Protection" under the Wetlands Protection Act. This definition goes on to state that:
A portion of a stream may flow through a culvert or beneath a bridge. Such a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream except for that portion upgradient of all bogs, swamps, wet meadows and marshes.
310 CMR 10.04 (definition of "stream) (parenthetical and italics in original).
The regulations define "bordering" to mean "touching," and explain that:
An area listed in 310 CMR 10.02(1)(a) is bordering on a water body listed in 310 CMR 10.02(1)(a) if some portion of the area is touching the water body or if some portion of the area is touching another area listed in 310 CMR 10.02(1)(a) some portion of which is in turn touching the water body.
310 CMR 10.04 (definition of "bordering").
The only water body on which either of these detention basin wetlands might be said to "border" is a stream flowing out of the detention basin, if indeed such a stream is present. For that to be the case at either detention basin, there would have to be flowing out of it "a body of running water . . . which moves in a definite channel in the ground due to a hydraulic gradient, and which flows within, into or out of" the wetland. See 310 CMR 10.04 (definition of "stream"). Pyramid Mall denies strenuously that this is so at either detention basin. It asserts that water flows from each detention basin not to a stream that touches the wetland in the detention basin but, instead, to a concrete box chamber where it does not flow due to a hydraulic gradient and then, after rising to the level of an outlet, into a pipe. The other parties contend, in contrast, that these structures merely comprise a culverted portion of a stream that exits the detention basin wetland (emphasizing that, per the regulatory definition, "[a] portion of a stream may flow
through a culvert . . .," 310 CMR 10.04) or that these structures themselves should be considered to be part of an intermittent stream flowing out of the detention basin wetland. They also argue that these structures, and the detention basins, replaced a preexisting, interconnected system of drainage ditches that were intermittent streams.
c. Determination of applicability and superseding determination
On December 1, 2005, after Pyramid Mall filed a wetlands notice of intent for an expansion of Hampshire Mall on Parcel 1A, Hadley resident David Elvin (the original requestor) sought an advance ruling determining whether any portion of Parcel 1A was an area subject to regulatory jurisdiction under the Wetlands Protection Act, as 310 CMR 10.05(3) allowed him to do. In a determination of applicability that it issued on January 10, 2006, the Conservation Commission concluded that Area 1, comprising the two detention basins, was "subject to
protection under the Act (as BVWs) insofar as proposed work is not maintenance." (parenthetical in original.) The Commission also found that Area 2 was "an area subject to protection under the Act" and that "[r]emoving, filling, dredging or altering of the area requires the filing of a Notice of Intent." The Conservation Commission did not identify what types of wetland resource areas
existed in Area 2 or where in Area 2 they were located.
Pyramid Mall requested, on January 30, 2006, that DEP issue a superseding
determination revising the Commission's finding as to Area 2 and as to the two detention basins comprising Area 1. It asserted that neither of the detention basins was a bordering vegetated wetland and that, instead, each detention basin was a storm-water system structure that was built and maintained to protect wetland resource areas from storm-water-related damage. Pyramid Mall argued that these functions could no longer be permitted under the Act or DEP's Wetlands Protection Regulations, 310 CMR 10.00, if the detention basins were now to be treated as wetland resource areas, even though a prior wetlands permit allowing storm-water system modifications required the periodic removal of accumulated sediment and invasive vegetation from the basins. Pyramid Mall also argued that classifying the detention basins as bordering vegetated wetlands would preclude further improvements to the Mall's storm-water management system, including the replacement of the detention basins that it was proposing in its latest notice of intent. Turning to Area 2, Pyramid Mall asserted that the most recent wetland boundary delineation's approved by the Conservation Commission identified parts of this area as "bank" but not as any other type of wetland resource area.
DEP issued its superseding determination on March 7, 2006. Affirming the Hadley Conservation Commission's earlier positive determination (requested by David Elvin), DEP found that:
both "Area 1" and "Area 2" contain and include (but are not entirely composed of) jurisdictional resource areas...including Bank (inland)[as defined at 310 CMR 10.54(2)], Bordering Vegetated Wetland [(BVW) as defined at 310 CMR 10.55(2)] and Land Under Water Bodies and Waterways [(LUW) 310 CMR 10.56(2)].
(parenthetical's and brackets in original.) DEP also stated that its superseding determination "does not confirm the boundaries" of these wetland resource areas "or of any other jurisdictional resource area on the parcel in question or in the vicinity thereof, as this was not asked for in the Request for a Determination of Applicability . . . ."
d . Adjudicatory appeal
DEP's superseding determination is of consequence to Pyramid Mall. Obtaining a wetlands permit under the Act (known as an "order of conditions") for the extensive alteration that Pyramid Mall contemplates could prove challenging, because a wetlands permit issued under M.G.L. c. 131, § 40 cannot allow the alteration of more than 5,000 square feet of bordering vegetated wetland, and a functioning replacement wetland area must be provided to compensate
for the wetland area that is lost. See 310 CMR 10.55(4). The area of the eastern detention basin alone is approximately 89,300 square feet, however. [fn. 11]
Not surprisingly, then, Pyramid Mall appealed DEP's superseding determination by filing a request for an adjudicatory hearing on March 12, 2006, asserting (as it did in requesting a superseding determination) that:
(1) The detention basins do not contain wetland resource areas, were designed and built to serve as storm-water detention basins to protect downstream wetlands, and cannot at the same time be maintained and cleaned as required by a prior wetlands permit and certificate of compliance, and also protected as wetland resource areas;
(2) A determination of applicability that the Hadley Conservation issued on May 20, 2004 regarding wetland resource areas at a property adjoining Parcel 1A's southern boundary and southeastern corner (the Allard's Farm parcel) did not identify the eastern detention basin as a wetland resource area, and treated both detention basins as storm-water management structures rather than as wetland resource areas. Because this determination remained in effect for three years from its issuance date, DEP was precluded during that period from determining, as it did on March 7, 2006, that either of the detention basins contained wetland resource areas, and its determination was therefore invalid;
(3) Neither of the two detention basins qualifies as a pond (as neither has a recorded surface area of at least 10,000 square feet) or as a creek, river, stream or lake, and thus neither can contain land under a water body or waterway; and
(4) Because intermittent streams do not have a mean annual flow level, which per 310 CMR 10.56(2) defines the boundary of land under a water body or waterway, the intermittent streams in Area 2 have no land under a water body or waterway associated with them.
Pyramid Mall sought a final determination that (1) the storm-water detention basins comprising Area 1 are not bordering vegetated wetlands or other types of wetland resource areas, and (2) there is no land under a water body or waterway in Area 2.
e. Motions to dismiss and for summary decision
Following the appeal's transfer from DEP to DALA, former Chief Administrative
Magistrate Christopher F. Connolly held a pre-hearing conference on October 23, 2006 and identified the issues to be adjudicated as:
1. Whether all or a portion of the easterly detention basin was subject to an unappealed determination of applicability dated May 20, 2004 issued by the Hadley Conservation Commission;
2. Whether the easterly and/or westerly detention basins, which together constitute Area 1, contain bordering vegetated wetlands;
3. Whether the detention basins can be a [wetland] resource area given the manner in which they were constructed and the way that they are operated; and
4. Whether land under water bodies and waterways is a resource area associated with intermittent streams. [fn. 12]
Mr. Elvin (the original requestor) and the intervenor ten residents group of which he is a member [fn. 13] moved on May 21, 2007 to "dismiss" Issue 1 as moot after the Conservation Commission's 2004 determination expired on May 20, 2007. Pyramid Mall filed an opposition to this motion on July 11, 2007. Magistrate Connolly granted the motion and dismissed claims related to Issue 1 for mootness on November 30, 2007.
Dispositive motions were filed to resolve the remaining three issues.
Mr. Elvin and the ten residents group moved for summary decision on Issue 2, asserting it to be beyond genuine or material factual dispute that each of the two detention basins contained a bordering vegetated wetland. [fn. 14] Although DEP and the Hadley Conservation Commission did not join in the motion or file a response, the motion noted their "assent" to it. [fn. 15] Pyramid Mall filed a response in which it requested a summary decision of Issue 2 in its favor, asserting it to be beyond dispute that neither detention basin bordered on a stream or other water body. [fn. 16]
DEP moved to dismiss Pyramid Mall's Issue 3-related claim that the detention basins could not be protected as wetland resource areas and, at the same time, maintained and cleaned to assure continued storm-water management functionality, as the prior wetlands permit required. It argued that, per the Wetlands Protection Regulations, a wetlands permit could allow the creation
of a bordering vegetated wetland for storm-water management purposes, and the wetland could be maintained as such without additional wetlands permitting, citing, inter alia, 310 CMR 10.02(3). Notwithstanding its characterization as a motion to dismiss, DEP's motion clearly sought a summary decision in its favor as a matter of law, with the dismissal of Pyramid Mall's Issue 3-related claims as a consequence. DEP also requested, in the same motion, a "legal ruling" relative to Issue 4 that land under a water body or waterway was associated with intermittent streams at the Mall site. Pyramid Mall opposed summary decision in DEP's favor as to Issues 3 or 4.
In its January 4, 2008 supplemental brief on the issues remaining for adjudication, DEP requested that its motion to dismiss as to Issue 3 and for a legal ruling as to Issue 4 be converted into one for summary decision on all three issues remaining for adjudication. None of the other parties objected to this request, and I grant it nunc pro tunc.
Following oral argument on the motions for summary decision, I issued an order on December 24, 2007 allowing the parties to jointly inspect the eastern detention basin and file supplemental papers amplifying how water exited the basin, through what types of structures water flowed after exiting it, and whether it could be determined summarily that the vegetated wet area within the basin bordered on a stream. The parties conducted the inspection and, through January 2008, filed supplemental affidavits and memoranda. Pyramid Mall moved to
strike some of these supplemental filings. [fn. 17]
With Issue 1 resolved by a mootness dismissal, there remain three issues to be adjudicated, all of which are proposed for summary decision.
1. Summary decision ground rules
A party moving for summary decision must show, with competent evidence, that there are no genuinely disputed material factual issues to be adjudicated and that it is entitled to a final decision in its favor as a matter of law. Matter of Papp, Docket No. DEP-05-066, Recommended Final Decision, 12 DEPR 210, 212 (Mass. Div. of Admin. Law App., Nov. 8, 2005), adopted by Final Decision (Mass. Dep't of Envtl. Prot., Dec. 27, 2005); Matter of Casagrande, Docket No. 2003-020, Recommended Final Decision, 11 DEPR 115, 116 (Mass. Div. of Admin. Law App., May 7, 2004), adopted by Final Decision, 11 DEPR 114 (Mass. Dep't of Envtl. Prot., June 7, 2004). This evidence may include one or more affidavits, each of which is (1) made on personal knowledge, (2) shows affirmatively that its author (the affiant) is competent to testify about the matters that his affidavit relates, and (3) presents evidence that would be admissible in the Massachusetts courts. Papp, 12 DEPR at 212; see also Matter of Building Center, Inc., Docket
No. 2002-230, Recommended Final Decision, 11 DEPR 43, 46 (Mass. Div. of Admin. Law App., Mar. 19, 2004), adopted by Final Decision, 11 DEPR 124 (Mass. Dep't of Envtl. Prot., June 10, 2004).
If the party moving for summary decision makes this showing, the focus shifts to the opposing papers, which must show with competent evidence that there exists a genuine and material factual dispute barring summary decision. Papp, 21 DEPR at 212; Matter of The Gallagher Group, Inc., Docket No. 2003-019, Recommended Final Decision, 12 DEPR 63, 64 (Mass. Div. of Admin. Law App., May 2, 2005), adopted by Final Decision (Mass. Dep't of Envtl. Prot., July 8, 2005). The three evidentiary requirements applicable to affidavits supporting
a summary decision motion-personal knowledge, competency and admissibility-apply as well to opposing affidavits. Matter of Whitney, Docket No. DEP-06-936, Partial Summary Decision, 14 DEPR 127, 129 (Mass. Div. of Admin. Law App., Jun. 27, 2007). "Speculation and conjecture do not suffice to make this showing," Matter of Town of Pelham Building Committee, Docket No. 98-054, Final Decision, 5 DEPR 127, 130 (Mass. Dep't of Envtl. Prot., Aug. 14, 1998), and neither do legal arguments or critiques of the moving party's motion, even if these
are offered by a qualified expert. Id.; 5 DEPR at 134. What the opposing affidavit must present, instead, is a "factual rejoinder," id., at 135, with competent evidence showing that the material facts are not established, contrary to what the moving party purported to show, or that the material facts are other than as the moving party alleged them to be. See Pelham, 5 DEPR at 136.
A motion for summary decision "prompts record-searching to determine whether the appeal presents any genuine, material factual issues" that cannot be decided without a full-fledged evidentiary hearing. As a result, even a motion for partial summary decision may reveal "issues left unaddressed by the motion [that] are unburdened by a genuine or material factual dispute" and should be decided summarily, even if the moving party has not requested this disposition. Matter of Primavera, Docket No. DEP-06-954, Recommended Final Decision,
14 DEPR 168, 170 (Mass. Div. of Admin. Law App., July 27, 2007), adopted by Final Decision (Mass. Dep't of Envtl. Prot., Oct. 16, 2007). The outcome of a motion for partial summary decision may be, thus, a full summary decision, "particularly if the issue's susceptibility to summary decision is clear and its summary disposition works no prejudicial surprise to the movant or to the opponent." Primavera, Recommended Final Decision, 14 DEPR at 170, citing
Baldwin Crane & Equipment Corp. v. Riley & Reilly Insurance Agency, Inc., 44 Mass. App. Ct. 29, 687 N.E.2d 1267, 1270 (1997) (stating the same proposition in the context of summary judgment under Mass. R. Civ. P. Rule 56: "[i]t is within a court's authority and discretion to grant full summary judgment sua sponte when presented only with a motion for partial summary judgment."). Whether it is granted in full or in part, moreover, summary decision may be awarded in favor of the non-moving party if it is entitled to it as a matter of law, whether the
non-moving party requested this outcome or not. See Matter of Rogers, Trustee, Albert Rogers Trust, Docket No. 95-053, Final Decision, 2 DEPR 176, 177 (Mass. Dep't of Envtl. Prot., Aug. 14, 1995).
2. Whether the easterly and/or westerly detention
basins contain bordering vegetated wetlands (Issue 2)
Summary decision on Issue 2 as to either detention basin is appropriate if it is beyond genuine, material dispute that the vegetated wet area within the basin not only has the vegetative and soil regimes characteristic of bordering vegetated wetlands but also borders on a stream or other water body.
Mr. Elvin and the ten residents group assert that both detention basins meet the definition of bordering vegetated wetlands recited at 310 CMR 10.55, for these reasons: (1) both detention basins contained vegetation and hydric soils characteristic of bordering vegetated wetlands, (2) a stream may flow through a culvert, citing 310 CMR 10.04 (definition of "stream"), (3) the western detention basin wetland borders on a stream because it "drains through a culvert into a
piping system, which can also be considered an intermittent stream," [fn. 18] (4) the eastern detention basin wetland borders on a stream because it "drains through a culvert to an intermittent stream that flows into a larger wetland system on the Allard's Farm Property," [fn. 19] and (5) the eastern detention basin "and the intermittent stream discharging from it "were converted from existing agricultural detention basins when the Mall was constructed" and "it can
be inferred that the agricultural drainage ditches and retention basins were successors to natural wetlands conditions on the Site." [fn. 20]
Mr. Elvin and the ten residents group contend that the "bordering" requirement is indisputably met, in other words, because water exiting each of the detention basins through the concrete box control structure and outlet pipe is actually a piped intermittent stream flowing out of the detention basin wetland. They offer alternate grounds for this conclusion: first, it is beyond genuine dispute that each of the detention basins was built within a pre-existing stream, and that the remnant of this stream now exits the vegetated wet area within the basin and flows through the concrete box control structure and outlet pipe; second, regardless of where streams flowed historically at Parcel 1A, the concrete box control structure and outlet pipe comprise a culverted portion of an intermittent stream flowing out of the vegetated wet area within the detention basin.
Although the presence of vegetation and soils characteristic of bordering vegetated wetlands in each of the detention basin is beyond genuine dispute, the presence of a stream on which either of these wet vegetated areas "borders" is anything but an undisputed fact. To the contrary, what the record shows to be beyond genuine dispute is that (1) neither detention basin was built within a preexisting stream, and (2) no culverted stream flows out of either detention
basin because water levels rise, but water does not flow, within the concrete control structure at each basin's outlet. Accordingly, I grant summary decision on Issue 2 in favor of Pyramid Mall.
a. Presence of requisite vegetation and soils
Mr. Elvin and the ten residents group have shown sufficiently that there are present at each of the detention basins a vegetative community and soils typical of bordering vegetated wetlands. On these points, the motion relies upon the affidavit of environmental scientist and
Orange Conservation Commission member and chairman Alec MacLeod, who observed the Hampshire Mall over an eleven-year period, including on November 28, 2006, three days before he prepared his affidavit. Mr. MacLeod's qualifications for identifying wetland indicator species and soils, including education and experience, are both clearly identified and unchallenged. His affidavit states, without contradiction, that both detention basins "contain a predominance of
wetland indicator plants, including such obvious obligate species as Cattail (Typha latifolia)," and in addition, "[b]oth basins also contain standing water, and are saturated to the soil surface for a significant period during the growing season" and "[t]he Eastern and Western Detention Basins provide many, if not all, of the functions attributed to Bordering Vegetated Wetlands at 310 CMR 10.55(1), in addition to functioning as a component of the Hampshire Mall's storm-water management infrastructure." [fn. 21]
b. Was either detention basin built within a preexisting stream?
Mr. Elvin and the ten residents group offer no such factual grounding to show that the detention basins and the associated structures through which water exits them (the concrete boxcontrol structure and its outlet pipe), were undisputably built within preexisting streams or other water bodies.
i.
Although each of the detention basins confines water, neither of them is alleged to be a "pond," as the Wetlands Protection Regulations define that type of water body, [fn. 22] on which the vegetated wet area in either basin borders. Whether or not it meets the regulatory definition of "pond," however, either detention basin could still be part of a bordering vegetated wetland associated with a stream that the basin interrupted or impounded. That would be the case, for example, if the detention basin was built within the bed of a stream that flowed out of a wetland resource area, and water now flows from this manmade basin "to a continuation of the stream"-here, the intermittent stream defined by the drainage channel at the end of the outlet pipe that joins a drainage ditch in Parcel 1A's southeastern corner (see above, at 5-6). See Matter of Tyn Limited Partnership, Docket No. 99-207, Recommended Final Decision, 8 DEPR 122,
125 (Mass. Div. of Admin. Law App., Apr. 13, 2001), adopted with modifications on other grounds, 8 DEPR 122 (July 10, 2001) (a manmade basin or other "ponded area," such as the shopping center fire pond at issue in Tyn, that "is created in the midst of a naturally occurring stream is part of the stream wetlands system.") This assures a continuity of regulatory jurisdiction over the wetland areas along the stream. As Tyn explains:
To hold otherwise would mean that when a stream flows into a naturally ponded area that is less than 10,000 square feet in size, the Department would lack wetlands jurisdiction over the ponded portion of the stream. If this were true, the Department would exercise jurisdiction over the wetlands areas associated with the portions of the stream flowing in and out of the ponded area, but have no jurisdiction in the ponded area itself, and hence applicants would not have to
obtain a wetlands permit to alter the ponded area or any wetland vegetation associated with it.
There is nothing in the regulatory language to suggest that this is what the Department intended. Id.
Tyn also explains, however, that regulatory jurisdiction under the Wetlands Protection Act would apply to a manmade basin or ponded area built within an intermittent stream only if (1) the stream flowed out of another wetland (further upstream) and into the basin or ponded area, or (2) the stream flowed out of a bordering vegetated wetland that had developed within the
manmade basin or ponded area, but (3) not if the stream simply began above the manmade basin and ponded area but did not flow out of an upstream wetland. That is "because the regulatory definition of stream does not include intermittent streams that are upgradient of all wetlands." Id. [fn. 23]
ii.
The movants assert that the Hampshire Mall and its drainage system were built where there had existed previously "a wetland system of drainage ditches, intermittent streams, and retention ponds to drain the farm fields for agricultural purposes," and that "[w]hen the Mall was constructed, the existing 'East Retention Basin' and 'West Retention Basin' were converted from existing agricultural drainage into storm-water detention basins to collect runoff from the Mall." [fn. 24] No affidavit supports these factual assertions. The movants rely, instead, upon storm drainage and erosion control plans that Pyramid Mall submitted to the Hadley Conservation Commission in 1978 as part of its permit application for the Mall's construction) showing "existing agricultural drains" south and east of the eastern detention basin and an existing 18-inch diameter reinforced concrete pipe at the outlet of the western detention basin. [fn. 25]
Pyramid Mall does not dispute that the 1978 wetlands permit allowing construction of the Mall and its two detention basins allowed the removal of existing agricultural drainage ditches on Parcel 1A. [fn. 26] The storm drainage and erosion control plans upon which the movants rely do not show any of these ditches within the footprint of either detention basin, however. The 1978 storm drainage plan shows, instead, "existing agricultural drains" to the south of the eastern detention basin's outlet pipe and behind the Mall building, in Parcel 1A's southeastern corner. It shows no such drains near the western detention basin or anywhere else in the parcel's western half.
Mr. Elvin and the ten residents group have not shown it to be beyond genuine dispute, thus, that either of the detention basins was built within a preexisting stream or other water body.
The two plans on which the movants rely show post-construction site conditions that were projected in 1978, suggesting in turn that they show remnants of the drainage ditch system that would remain after the Mall was built rather than the entire preexisting agricultural drainage system. For a more complete snapshot of that drainage system, I turn to another plan in the
record that was prepared in February, 1978 for Pyramid Mall by Almer Huntley, Jr. and Associates, a professional land surveying firm showing streams and drainage ditches at two adjoining parcels that would become Parcel 1A (and, within it, the Target store parcel, Parcel 1A-1). [fn. 27] The Huntley plan shows the precise lengths of the property's boundaries, including the segments that comprise its irregular eastern boundary. In addition, it includes a graphical scale-a bar graph showing a relationship between distances on the plan and actual distances on the ground that adjusts proportionately, and therefore remains accurate, as the map
is enlarged or reduced in size by photocopying, as appears to have been the case with the copy of the Huntley plan in the record. With this information, the location of boundaries and topographic features shown on the Huntley plan can be correlated reliably with the location of boundaries, Mall buildings and structures shown on more recent scaled plans in the record.
The Huntley plan shows several thin, curved or wavy lines at the property it surveyed, several of which are labeled "stream." One of these streams crosses the northeastern corner of what is now Parcel 1A and is shown as flowing to the southeast, away from Route 9 and off the property. This stream appears to correspond with the stream shown as crossing through the portion of Area 2 located in Parcel 1A's northeastern corner (see above, at 3-4). Another stream
is shown in the surveyed property's southeastern corner. The Huntley plan also shows other lines marked "drainage ditch," and gives the direction of flow within them.
It is not clear from the Huntley plan what distinguished the drainage ditches from the streams it shows. However, it is uncontroverted that the Hampshire Mall site was part of farmland with an agricultural drainage system when the plan was prepared, and this existing use would have been obvious when site conditions were surveyed and transferred to the plan. Although "drainage ditch" is not defined by the Act or the Wetlands Protection Regulations, it is understood ordinarily to mean a long, narrow excavation in the earth that carries away excess water from surrounding areas. See, e.g., American Heritage Dictionary, 2d Ed. 1991, definition of "ditch" as "[a] long narrow trench or furrow dug in the ground, as for irrigation, drainage, or a boundary line." [fn. 28] There is no evidence that the drainage ditches at the Hampshire Mall site (which were used in conjunction with farming) functioned differently.
The difference between ditches dug to facilitate agriculture-related irrigation and drainage and naturally-flowing streams would have been apparent to a professional surveyor at the Mall site, and none of the parties contends that this was not the case here when the site was surveyed in early 1978 to prepare the Huntley plan. The Huntley plan's use of "drainage ditch" and"stream" must be regarded as deliberate, consequently. Moreover, absent any evidence that any
of the drainage ditches at the Mall site flowed throughout the year, the topographic features labeled as drainage ditches on the Huntley plan must be considered to have been long, narrow excavations in which water irrigating the surrounding agricultural lands or draining water from them flowed intermittently.
The Huntley map shows a stream running from a point near the surveyed property's southern boundary and the railroad right-of-way northward, through what is now part of Area 2 and part of the parking area south of the Target store and east of the cinema at the rear of the Mall building. The stream is shown joining a drainage ditch running from a point approximately 900-1000 feet to the west of this junction (based upon the Huntley plan's graphic scale), in an area that is now occupied by the Mall building and the cinema. The plan shows the stream
turning eastward from this point, following what would have been a continuation of the drainage ditch. Based upon a comparison of the Huntley plan with the 1978 and 2004 plans upon which Mr. Elvin and the ten residents group rely (see above at 5, n. 8 and at 19, n. 25), this appears to be same stream to which water exiting the concrete box control structure at the eastern detention basin flows ultimately, after passing through an outlet pipe to the outflow channel.
The Huntley plan shows the stream joined at a right angle by another line labeled as a drainage ditch with a southerly direction of flow. This ditch ran from its northern starting point on the Mall site, near Route 9, southward to the stream near the site of the present Mall and cinema buildings. The plan shows no other line running north-south closer to the Mall property's eastern boundary.
The junction of this north-to-south drainage ditch with the stream in the property's southeastern corner appears to be west of where the outflow channel below the eastern detention basin joins the stream today, based upon a comparison of distances shown by the Huntley plan's graphic scale with distances shown on the 2004 plans. The north-south drainage ditch is shown
on the Huntley plan as well to the west of the triangular jog in Parcel 1A's eastern boundary that now frames the eastern detention basin. Measurements using the Huntley plan's graphic scaleconfirms that this drainage ditch was more than 150 feet to the west of this triangular jog in the eastern boundary. The drainage ditch ran, in other words, through the current footprint of the Target store rather than within the detention basin's footprint.
Considered together with the movants' failure to make a contrary showing, the Huntley plan shows it to be beyond genuine dispute that no stream or drainage ditch flowed through thesite of the eastern detention basin or its appurtenant concrete box control structure-or, for that matter, the outflow pipe leading from the control structure southward to the outflow channel and the intermittent stream it joins. It is therefore also beyond genuine dispute that the easterndetention basin was not built within a preexisting stream or other water body.
I turn next to whether the Huntley plan shows the western detention basin to have been built within a preexisting stream.
The plan shows a line marked "drainage ditch" in the Mall property's southwestern corner running from a point approximately 400 feet east of South Maple Street, westward (the indicated direction of flow) through an area that is now part of the western detention basin, and ending at a point slightly beyond the property's western boundary and within the street layout, very close to the street's eastern boundary. It is unclear from the plan whether water flowed in the drainage ditch beyond this point and, if it did, whether this flow was to an in-street town
drainage system, to a wetland, or downhill as unconfined sheet flow.
A comparison of the Huntley plan with more recent plans in the record shows that the western detention basin was built within this drainage ditch or at its western end. This is not enough to show that the western detention basin was built within, and therefore became part of, a stream with an associated bordering vegetated wetland. The Huntley plan does not show whether the drainage ditch flowed within or out of a bordering vegetated wetland, and there is no evidence in the record that it did. The record shows no more than that this area was part of a
former farm with a system of agricultural drainage ditches. As a result, there is no basis for finding it to be beyond genuine dispute that the drainage ditch in the Mall property's southwestern corner flowed out of a bordering vegetated wetland.
There is also no evidence that the drainage ditch in the Mall site's southwestern corner flowed to a bordering vegetated wetland at the detention basin site or beyond it, e.g., along or within South Maple Street. Even if did, however, that would still be insufficient to establish regulatory jurisdiction at the detention basin under M.G.L. c. 131, § 40. There is no evidence that flow in the drainage ditch was anything but intermittent. The Huntley map shows the
direction of flow as westward toward South Maple Street, and there is no evidence in the record showing a different flow direction. If the western detention basin was built within this drainage ditch, thus, the ditch flowing to the detention basin site was an intermittent stream that did not flow out of a wetland and was, instead, an intermittent stream that was upgradient of all wetlands. This section of the detention basin was not, therefore, a stream as the Wetlands Protection Regulations define it. Per 310 CMR 10.04, ". . . a body of running water which does not flow throughout the year (i.e., which is intermittent) is a stream except for that portion upgradient of all bogs, swamps, wet meadows and marshes."
Because the drainage ditch did not flow from a wetland resource area, the inquiry into whether the western detention basin was "created in the midst of a naturally occurring stream" per Tyn (see above, at 18-19) goes no further-the western detention basin was not built within a stream that flowed out of a wetland resource area. There is no need to determine, thus, whether water passes from the detention basin to a continuation of the stream. I note, nonetheless, that
the record contains no evidence that a stream actually flowed beyond the common boundary of the Mall property and South Maple Street before the western detention basin was built, or that it does so today. There is also no evidence that water exiting the concrete box control structure at the western detention basin flows anywhere but into the town drainage system within the street.
c. Does the vegetated wet area in either detention basin border on a culverted stream?
Mr. Elvin and the ten residents group contend, as does DEP in supporting their motion for summary decision on Issue 2, that the wet vegetated area in each of the detention basins is connected directly by a culverted stream to an open downstream intermittent stream (e.g., the outflow channel south of the eastern detention basin). They describe the culverted stream as comprising the concrete box control structure, which touches the vegetated wet area in the detention basin directly, and its outlet pipe, whose exiting water (described by DEP as a
continuous water column flowing from the detention basin as a result of "hydrostatic pressure" in the detention basin) touches an intermittent stream. [fn. 29] Pyramid Mall counters that the concrete box control structure at the southern end of each detention basin cannot be a stream or part of one because water does not flow within it due to a hydraulic gradient and rises in this
structure, instead, until it can exit via into the outlet pipe. As a consequence, it argues, no stream, culverted or otherwise, touches the vegetated wet area in the either detention basin.
The record shows it to be beyond genuine dispute that no culverted stream flows from the vegetated wet area in either detention basin, and that, as a consequence, there is no water body on which either vegetated wet area borders.
i.
A culverted stream is a stream that enters, and passes through, a conduit-generally piping, or straight or curved horizontal structures constructed of stone, concrete or steel-so that it can bypass a structure or topographical feature that would otherwise obstruct its flow, such as roadway or a filled and graded area.
If a stream indeed enters a culvert at either detention basin, it is mperceptible. The record includes photographs of the concrete box control structure at the eastern detention basin showing that standing water in the basin contacts the opening into the concrete box control structure directly. [fn. 30] Although there are no photographs of the concrete box control structure at the western detention basin, there is neither evidence nor argument before me
showing that standing water in the western detention basin does not make direct contact with the opening into the structure as it does in the eastern detention basin. There is also no evidence that there exists at either of the detention basins a channel, swale or other open cut in the ground that conducts water from the vegetated wet area in the basin to the concrete box control structure.
There is no need to belabor the absence of any regulatory definition that recognizes imperceptible streams as streams, however. The movants and DEP concede that the culverted stream they posit at each detention basin begins at the concrete box control structure-in, but not upgradient of, what they describe as a culvert, in other words.
The parties have not cited, and I have not found, any prior DEP appeal decisions describing a stream that begins in a culvert running from the edge of a wetland. Wetlands permit appeal decisions cited by the movants and DEP relative to culverted streams describe, instead,streams that begin in open channels in the ground within a wetland or at its edge, and then end at,
or pass through, a culverted section. See Matter of Cintron, Trustee, Bucko Family Realty Trust, Docket No. DEP-04-530, Recommended Final Decision, 12 DEPR 218 (Mass. Div. of Admin. Law App., Nov. 10, 2005) (a vegetated area on residential property was a bordering vegetated wetland associated with an intermittent stream where water exiting a vegetated area on residential property flowed first in an easterly path around the landowner's driveway, then southerly in a path adjacent to the driveway, and then westerly through a culvert under the
driveway and through a swale adjacent to a road along the front of the property that discharged water to a catch basin, from which it flowed in piping eventually to the Merrimack River); Matter of Papp, Docket No. DEP-05-066, Recommended Final Decision, 12 DEPR 210, 214 (Mass. Div. of Admin. Law App., Nov. 8, 2005), adopted by Final Decision (Mass. Dep't of Envtl. Prot., Dec. 27, 2005) (a surveyed plan showing elevation contours and, as well, flags marking the wetland boundary based upon characteristic vegetation, established the existence of a small,
narrow and low-lying but topographically-defined area comprising a swale within the flagged wetland boundary; consequently, (1) this swale was a definite channel in which water flowed through and out of a surrounding area of hydric soils consistent with conditions to be expected in a bordering vegetated wetland, (2) although the length of this channel was short and conducted water from the vegetated area into an invert set at a lower elevation, it was an intermittent stream
that flowed through and out of the wetland, and (3) the wetland therefore bordered on an intermittent stream and was a bordering vegetated wetland, and a wetlands permit was required for constructing a proposed sewer line within this bordering vegetated wetland's 100-foot buffer zone); Matter of Tassinari, Docket No. 83-39, Final Decision (Mass. Dep't of Envtl. Quality Engineering, May 29, 1984) (where water exiting a freshwater wetland flowed along a positive gradient through an open swale in the ground-comprising, first, an eight to ten-foot length lined
with grass and not characterized by a break in vegetation, and then an approximately 15-foot-long definite channel-to a culvert under a street that flowed to a brook and then to the Merrimack River, the entire length of the swale, from the wetland to the culvert where it entered the drainage system in the street, was a definite channel comprising an intermittent stream through which water moved due to a hydraulic gradient, and the wetland from which this intermittent stream flowed was, thus, an area subject to protection under M.G.L. c. 131, § 40).
Tyn described a stream that originally flowed out of a wetland in a definite channel in the ground past what became the site of a holding pond built within the stream, until this stream section was piped from the wetland's edge to conduct water to the holding pond. Regulatory jurisdiction arose because the piped section once flowed from the wetland in a definite channel in the ground, and not because the stream was piped beginning at the wetland's edge. Tyn did not present a
situation in which piping was installed from the edge of a wetland resource area where previously there had been no definite channel through which water flowed from the wetland, and nor did it decide whether such piping would comprise a culverted stream.
ii.
With no prior decision determining that a stream on which a wetland is said to border may begin at or in a culvert, particularly where (as here) no previously-existing stream was culverted, the matter presents as one of first impression. To determine whether the concrete boxcontrol structure at the edge of either detention basin at the Mall property part is part of aculverted stream touching the vegetated wet area in either basin, I begin with an understanding ofa culvert's function, and then apply the regulatory definitions of "stream" and "bordering."
A culvert channels water flow beneath or through, and therefore past, an obstruction, whether it is a driveway as was the case in Cintron, a street as was the case in Papp and Tassinari, or a surrounding berm, as is the case here. It is not a primary function of culverting, in contrast, to detain water, and if water is detained within a culvert this is more likely an indication of insufficient sloping or other design insufficiencies, or of a no-flow or low-flow condition in the
stream that enters the culvert. The reduction of downstream hazards such as flooding, erosion and sedimentation are also not functions of culverting. They are, instead, measures implemented to mitigate the impacts of directing flowing water through a culvert, particularly at the culvert exit. These impacts occur in part because the sides and bottoms of a pipe or other type of culvert are smoother and straighter than a natural stream bed, so that there is less friction acting upon the
force of water flow than is the case when water flows along a natural stream bed. In addition, the culvert's diameter may constrict water flow, increasing the velocity of water passing through it and, as a result, the erosive force of this flow when it exits the culvert. See Matter of Town of Acton Engineering Dep't, Docket No. 2001-020, Recommended Final Decision, 9 DEPR 255, at 256, 260 and 262 (Sept. 17, 2002), adopted by Final Decision, 9 DEPR 255 (Mass. Dep't of
Envtl. Prot., Oct. 28, 2002).
Per the regulatory definition of "stream" at 310 CMR 10.04, streams flow due to a hydraulic gradient. Culverts are designed to allow water flow due to a hydraulic gradient as well. The bed of a culvert, like the natural bed of a stream, is sloped from a higher elevation at the beginning of its length to a lower elevation at its end, so that water flows downhill within it and does not accumulate within the culvert or cause water to backup and cause flooding upstream.
There is no evidence of any gradient in the concrete box control structure at either of the Hampshire Mall detention basins. Each of these structures is a 1.5-foot-wide and 4-foot-long chamber that holds water (see above, at 5), rather than a pipe or other conduit through which water flows. Instead, water is detained within this structure and exits only when its level rises and reaches the concrete box control structure's outlet, at which point it can overflow into the outlet pipe. This is a direct consequence of the concrete box control structure's function; as is
true of the detention basin, this structure is designed to reduce the volume, velocity and pollutant load of exiting water and, as a result, to reduce downstream hazards such as flooding and erosion. See above, at 4-6.
The same is not true of the pipe that conveys water downgradient from the concrete box control structure's outlet pipe, which was not designed to mediate the volume and velocity of the water it conveys or the pollutant load it carries. By virtue of its diameter and relatively smooth walls, the outflow pipe more likely increases the velocity of water flowing through it and, aswell, the erosive force of this water flow where it exits the pipe and enters the outflow channel.
These differences underscore that while the outflow pipe can be described accurately as a culvert-at least relative to the eastern detention basin [fn. 31] -the concrete box control structure cannot. Moreover, because the concrete box control structure physically separates the outflow pipe from the detention basin, the vegetated wet area within the detention basin does not touch, and therefore does not border, the outflow pipe in which water flows downhill as it would in a culvert.
The separation cannot be overcome (as Mr. Elvin and the ten residents group attempt relative to the eastern detention basin) by conceptualizing the outflow pipe and concrete box control structure as "one unit" or as a "single outflow system" that forms a continuous hydrological connection between water in the detention basin and the outflow control channel. [fn. 32] The argument does not raise a genuine factual issue as to whether the concrete box control structure and the outflow pipe are indeed a single system.
That the argument glosses over the distinct functional and design differences between these structures suggests a factual issue whose determination depends upon weighing witness credibility. No such issue is present, however; the argument is legal rather than factual, and presents no bar, thus, to deciding summarily whether the vegetated wet area within either detention basin borders on a culverted stream. The argument is not fact-dependent; it actually urges a conclusion that does not shift based upon what the facts show and is grounded, instead, upon a desired outcome-in this case, to construe "stream" and "bordering" broadly enough to include any structure or combination of structures through which water ultimately passes from a vegetated wet area, so that the wet areas in question here can be said to border on a stream and thus become areas in which work is subject to regulation under M.G.L. c. 131, § 40.
Had DEP chosen to do so, it could have defined "stream" to include any structure through which water passes, or could pass ultimately, whether or not by flow due to a hydraulic gradient. That definition could have been crafted to include any structure that water might overtop, such as a dam or a concrete box control structure at a detention basin. DEP also could have defined "bordering" more broadly to include circumstances in which a wetland would touch a stream or
other water body directly but for an intercepting structure such as a concrete box control structure. DEP did neither of these things, however.
As the regulations now stand, a water body must flow due to a "hydraulic gradient" in order to be a stream. 310 CMR 10.04. The Wetlands Protection Regulations do not define "hydraulic gradient." DEP Environmental Analyst David Foulis explained (in an affidavit that the agency filed following the December 2007 site inspection) that a hydraulic gradient is a "change in hydraulic head over distance," with hydraulic head being "the difference in elevation between any two points in a column of fluid, such as a 'stream,' and is typically expressed as an
elevation." [fn. 33] Foulis offered the hydraulic gradient between Lakes Superior and Ontario as an example: each is at "zero gradient" because "they're lakes," but the water surfaces of these two lakes are at different elevations-Lake Superior's being the highest of the Great Lakes-and water flows "from Lake Superior down-gradient to Lake Ontario, via Lakes Huron and Erie, with
each lake surface at zero gradient, and each lake surface elevation lower than the closest upstream lake." [fn. 34]
The water surfaces of each of the Great Lakes are indeed at different elevations relative to each other, but that does not transform the entire Great Lakes system into a stream. Instead, each lake is connected to the next lake downgradient by what the Wetlands Protection Regulations would classify, at 310 CMR 10.58, as a perennial stream or river. [fn. 35] Moreover, if the Regulations applied to the Great Lakes, the regulatory "river" connecting the Great Lakes would stop at the inlet to the lake and begin again at the lake's outlet, so that none of the lakes would be part of the river connecting it to the lake upstream or downstream of it. See 310 CMR 10.58(2)(a)1.h.
The analogy to the Great Lakes is helpful nonetheless, but not as DEP intended. Although the concrete box control structures at the Hampshire Mall detention basins are neither lakes nor ponds per the regulatory definitions of these water bodies, they each contain a volume of water that exits through an outlet. The surface of this water volume is not without a hydraulic gradient, but it is, as Foulis stated, at zero, meaning that water does not move downgradient in
response to gravity forces, which is also the case in any of the Great Lakes. This begins to change at the outlet, whether at the opening from a Great Lake to a river leading to the next lake (or to the Atlantic Ocean) or, here, at the outlet through which water exits either of the concrete box control structures. It is at the outlet that water begins to move downgradient on account of gravity forces (moderated by friction forces such as those exerted on the flowing water volume by rocky stream and river beds, or by the interior wall surfaces of a culvert). This is the point at which streamflow could be said to begin, unless the concrete box control structure was built within an existing stream running from an upgradient wetland and continuing downgradient from the structure. That was not the case here, however. See above, at 18-25. The water volume confined behind the outlet, whether in a Great Lake or in a concrete box control structure, is not part of this streamflow, because while it does have a hydraulic gradient, that gradient is
zero-meaning that the confined water does not move or, thus, flow, due to a hydraulic gradient.
Another way to explain this is to view hydraulic gradient from an energy perspective. Water that is impounded in a lake or in a concrete box control structure "has a high potential energy that cannot perform work until it is released." See Brooks, Kenneth N. et al., Hydrology and the Management of Watersheds, 3rd Ed., (Wiley-Blackwell, 2003), at 212: Fundamental Energy Relationships of Streams. [fn. 36] This release occurs when the impounded water
volume reaches a channel, such as the river flowing downgradient out of one of the Great Lakes, or (as here) at the beginning of the downward-sloping pipe at the concrete box control structure's outlet. At this point, gravity causes the water to begin flowing from "its higher energy state to its downstream, lower energy state," and the potential energy in the upstream impoundment is converted to kinetic energy on account of the flowing water's velocity, a process that diminishes
as the water channel nears sea level. Id. The hydraulic gradient from the outlet to lower elevations in the watershed downstream would be "determined by the change in the elevation from the highest to the lowest elevations in the watershed," and would therefore be greater than zero. Id.
Here, the hydraulic gradient-zero at the water surface within the concrete box control structure-maximizes immediately relative to any point downstream once water exits the structure's outlet and begins its downgradient flow through the outlet pipe. At the same exit point, what was high potential energy in the water volume within the concrete box control structure begins a conversion to kinetic energy due to flow velocity within the pipe. This conversion is relatively rapid within the pipe's confines but diminishes after water exits the pipe and flows in a channel at elevations closer to sea level. Even if there are low spots along this
distance within which water might pool during times of low or no flow, however, gravity forces over the distance from the outlet to any point downstream are never at zero overall. Instead, these gravity forces comprise a continuous energy gradient-a hydraulic gradient that causes water to flow in a definite channel, in other words. In contrast, gravity forces within the concrete box control structure are always be zero overall, and there are no gravity forces within the structure that comprise a continuous energy gradient.
However the concept of hydraulic gradient is explained, the outcome here is the same. The water in the concrete box control structure is at zero gradient and water does not flow within it due to a hydraulic gradient, consequently. Water flow due to a hydraulic gradient begins when water exits the concrete box control structure's outlet and begins flowing downgradient within the outlet pipe. Because the movement of water within the concrete box control structure does not meet the regulatory requirement of flow due to a hydraulic gradient, it is beyond genuine
dispute that the concrete box control structure is not a culverted stream or part of one.
The movants also urge an expansive construction of "bordering" to encompass a hydrologic connection extending from water in either of the detention basins through the concrete box control structure and to the outlet pipe leading to the outflow channel. This argument, too, is inconsistent with the plain language of the regulations.
The regulations are specific as to what "bordering" means. To qualify as an area subject to protection under the Act, the vegetated wetland in either detention basin must either touch a stream or other water body directly, or it must touch another area subject to protection that does. 310 CMR 10.04 (definition of "bordering", discussed above, at 7). Touching a stream indirectly via concrete box control structures such as those at the Hampshire Mall detention basins does not satisfy this requirement, because these structures are not areas subject to protection under the Act. Reading the regulatory definition of "bordering" to encompass this indirect touching would be no less inconsistent with the definition's plain language than would be reading the definition to encompass touching a water body via more than one interceding wetland resource area. See
Weinstein v. Dep't of Environmental Protection, Memorandum of Decision and Order on Plaintiffs' Motion for Judgment on the Pleadings (Suffolk Super. Ct., Jan. 15, 2002), affirming Matter of Frost, Docket No. 97-091, Final Decision, 7 DEPR 150 (Mass. Dep't of Envtl. Prot., Oct. 20, 2000) (although a sand ridge was geomorphologically a dune, it did not border directly on the ocean or on another type of wetland resource area that bordered on the ocean, and was instead separated from the ocean by two wetland resource areas (a coastal bank and a coastal beach); accordingly, (1) the Administrative Law Judge properly applied the regulatory definition of "bordering" at 310 CMR 10.04 in concluding that the geomorphologic dune in question was not a "coastal dune" bordering the ocean within which work was subject to regulation under M.G.L. c. 131, § 40, and that the construction of a dwelling within the geomorphologic dune did not require a wetlands permit, (2) construing "touching another area" (per the regulatory
definition of "bordering" at 310 CMR 10.04) to include "touching other areas" would contradict the definition's plain language, and (3) in recognizing that not every landform was meant to be protected, the regulatory definition of "bordering" did not clearly vitiate the legislative intent underlying the Wetlands Protection Act, as the project opponents argued).
It is beyond genuine dispute, therefore, that the vegetated wet areas in neither of the two detention basins in Area 1 borders on a stream, and that neither of the detention basins in Area 1 contains a bordering vegetated wetland.
3. Whether the detention basins can be wetland resource areas given the manner in which they were constructed and the way they are operated (Issue 3)
Pyramid Mall's claim relative to Issue 3 was that the detention basins in question do not contain wetland resource areas, were designed and built to serve as storm-water detention basins to protect downstream wetlands, and cannot at the same time be maintained and cleaned as required by a prior wetlands permit and certificate of compliance, and also protected as wetland resource areas. DEP seeks a summary decision of Pyramid Mall's claim relative to Issue 3 in its
favor as a matter of law. It argues that the Wetlands Protection Regulations clearly contemplate the creation and maintenance of a bordering vegetated wetland for storm-water management purposes, and therefore a determination that either of the storm-water management basins at the Hampshire Mall is a bordering vegetated wetland does not preclude the maintenance of either as a functioning storm-water detention basin, citing 310 CMR 10.02(3) and 310 CMR 10.55(4)(e)4.
[fn. 37]
DEP's argument is correct, and I would grant it summary decision on Pyramid Mall's Issue 3-related claim if the issue were still viable, which it would be if a bordering vegetated wetland existed in either of the two Hampshire Mall detention basins. However, the summary decision of Issue 2 in Pyramid Mall's favor establishes that neither of the detention basins contains a bordering vegetated wetland. Issue 3 is therefore academic, and Pyramid Mall's claim of inconsistency between storm-water management-related maintenance and wetlands protection within the detention basins is moot. A mootness dismissal disposes of Issue 3 and Pyramid Mall's claim relative to it, consequently.
4. Whether land under water bodies and waterways is a resource area associated with intermittent streams
DEP asserts it to be settled law that land under a water body or waterway (LUWW) is associated with intermittent streams, citing Matter of Conroy, Docket No. 97-074, Final Decision, 5 DEPR 89, 91 (Jun. 9, 1998), confirmed by Final Decision on Remand, 6 DEPR 191(Oct. 5, 1999)(drainage ditch was an intermittent stream with associated LUWW). It seeks a summary decision of Pyramid Mall's claim, related to Issue 4, that no land under a water body or
waterway (LUWW) is associated with intermittent streams at the Mall site. In opposing summary decision in DEP's favor on Issue 4, Pyramid Mall argues that (1) the boundary of that wetland resource area is based upon the water body's mean annual water level, see 310 CMR 10.56(2), meaning an average of the single lowest water level of the stream each year, (2) the lowest water level of an intermittent stream is zero, when water does not flow within it, (3) as a
result, the mean annual water level over a period of years is also zero, and (4) an intermittent stream cannot have associated LUWW, consequently, citing Colburn, Elizabeth A., Ph.D., A Guide to Understanding and Administering the Massachusetts Wetlands Protection Act, 2d Ed., at 26 (Massachusetts Audubon Society, 1995). Pyramid Mall also argues that in both Conroy decisions, DEP ignored its own mean annual water level-based definition of LUWW in concluding that an intermittent stream could have associated LUWW.
I have determined summarily that no stream or bordering vegetated wetland exists within either detention basin; moreover, as noted above, neither detention basin qualifies as a "pond" under the Wetlands Protection Regulations. There is also, consequently, no water body within either detention basin with which land under a water body or waterway could be associated. For this reason, I grant a summary decision in Pyramid Mall's favor regarding so much of DEP's superseding determination as found that land under water bodies and waterways were included in the detention basins comprising Area 1.
In moving for and opposing summary decision on Issue 4, none of the parties offered evidence relative to the existence of land under water bodies and waterways in Area 2, and the issue was litigated minimally. DEP's superseding determination did not specify where land under water bodies and waterways existed at Area 2, which encompasses several portions of Parcel 1A-the area behind the Mall building and cinema, in the southeast corner of Parcel 1A,
and the parcel's northeastern corner. The Hadley Conservation Commission's determination did not specify land under water bodies and waterways as a wetland resource area that existed in Area 2.
The parties do not dispute that the intermittent streams in these areas, including drainage ditches, have associated bank, or that the stream in the parcel's northeastern corner has an associated bordering vegetated wetland. The record suggests that bordering vegetated wetland may exist along the outflow channel south of the eastern detention basin, but it does not show the wetland's boundary. In this circumstance, the superseding determination as to Area 2 is best redacted to sustain only what the parties do not dispute-the existence of bank along Area 2's intermittent streams. This suffices to sustain regulatory jurisdiction as to work proposed in Area 2. The advance jurisdictional determination need go no further. A determination as to the existence of other wetland resource areas in Area 2 requires a more complete record and more
specific findings by the Conservation Commission and, if its review is then invoked, by DEP. This can be done in the course of deciding Pyramid Mall's pending wetlands permit application.
Accordingly, Issue 4 resolves, along with claims relative to it, by way of a summary decision sustaining DEP superseding determination as to the existence of bank in Area 2 but directing that the determination be redacted to eliminate findings as to whether Area 2 contains any other type of wetland resource area.
This matter now concludes thus:
(1) I grant a partial summary decision in Pyramid Mall's favor on Issue 2. 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. DEP's final determination of applicability should recite this determination.
(2) Because no stream is present at either detention basin and neither basin is a pond, I also grant a partial summary decision in Pyramid Mall's favor determining that there is no land under water bodies and waterways at either detention basin. DEP's final determination of applicability should recite this determination as well.
(3) As no bordering vegetated wetland is present at either detention basin, Issue 3 is academic, and Pyramid Mall's claim that the detention basins cannot be simultaneously maintained and protected as wetland resource areas under M.G.L. c. 131, § 40 is dismissed as moot.
(4) Because the parties agree that there are intermittent streams with associated bank in Area 2, the superseding determination is sustained to the extent it determines that work in Area 2 is subject to regulatory jurisdiction under M.G.L. c. 131, § 40 and requires a wetlands permit because it contains bank.
(5) However, DEP's final determination of applicability should recite no findings as to the presence of other types of wetland resource areas in Area 2, because (a) neither the conservation commission's determination nor DEP's superseding determination identifies wetland resource areas other than bank in Area 2, (b) the evidence presented here does not include this information, and (c) a more complete record regarding the identification and boundaries of wetland resource areas other than bank should be developed, and these jurisdictional issues should be determined based upon that record, when Pyramid Mall's pending wetlands permit application for work at the Mall property is reviewed. [fn. 38]
Notice
This decision is a recommended final decision of the Administrative Magistrate. It has been transmitted to the Commissioner of the Department of Environmental Protection for her final decision in this matter, including the issuance of a final order of conditions for the project at issue. This decision is therefore not a final decision subject to reconsideration, and may not be
appealed to the Superior Court pursuant to M.G.L. c. 30A. The Commissioner's decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect.
Because this matter has now been transmitted to the Commissioner, no party shall file a motion to renew or reargue this recommended final decision or any portion of it, and no party shall communicate with the Commissioner's office regarding this decision, unless the Commissioner, in her sole discretion, directs otherwise.
Mark L. Silverstein
Administrative Magistrate
August 14, 2009
