This policy discusses allowing salt pond openings to the ocean under the Wetlands Protection Act.
Criteria for Evaluating and Permitting Openings of Salt Ponds in Order to Manage, Maintain, or Enhance Marine Fisheries
Issued: March 28, 1991
The purpose of this policy is to clarify the Department's position concerning when salt pond openings to the ocean may be allowed pursuant to M.G.L. c. 131 s.40, the Wetlands Protection Act (the "Act"), and to give guidance to the issuing authority by providing a process for the evaluation of a pond opening proposal. This policy is intended to allow the Department to gather information and further evaluate the effects of pond openings.
A salt pond opening is subject to the Act because it involves activities which will alter, dredge, fill, or remove resource areas subject to protection under the Act. 310 CMR 10.33(3) provides, generally, that projects in and around salt ponds may not have an adverse effect on the marine fisheries or wildlife habitat of the pond. However, 310 CMR 10.33(4) provides that "Notwithstanding the provisions of 310 CMR 10.33(3), activities specifically required and intended to maintain the depth and the opening of the salt pond to the ocean in order to maintain or enhance the marine fisheries or for the specific purpose of fisheries management, may be permitted." This provision evidences an intent on the part of the Department to allow projects "specifically required and intended" to maintain a salt pond opening necessary to manage, maintain or enhance marine fisheries.
310 CMR 10.33(4) is silent concerning its interaction with the performance standards established under 310 CMR 10.27, 10.28, 10.29, 10.32 and 10.55 for resource areas typically encountered around salt ponds. When the performance standards for these resource areas are read literally it is difficult, if not impossible, for pond opening projects to satisfy the applicable performance standards.
As "activities specifically required and intended to maintain the depth and opening of a salt pond" must necessarily include the breaching of the pond's associated barrier beach (when the opening is presently closed) and would result in impacts to adjacent resource areas, it is the Department's interpretation that the openings may be allowed under limited, controlled conditions when certain prerequisites are satisfied. When the alteration of inland resource areas will result from a salt pond opening undertaken in accordance with this policy, such alteration may be permitted under 310 CMR 10.53(4). The issuing authority may exercise its judgement to determine that a project to manage, enhance or maintain marine fisheries, conditioned in accordance with this policy, may improve the area's natural capacity to protect the interests identified in the Act. In order to give full meaning and effect to all regulatory provisions, while protecting the interests of the Act, the Department concludes that salt pond openings may be authorized by the issuing authority when:
- the applicant demonstrates that the opening is necessary to manage, maintain or enhance an existing or historically viable marine fisheries; and
- conditions are imposed that prevent or minimize adverse effects to Coastal Beaches, Coastal Dunes, Barrier Beaches and any affected inland resource area to the greatest extent possible. "Minimize", as used in this policy, has the same definition as found at 310 CMR 10.23.
If the issuing authority concludes that such conditions cannot be developed, then it must deny the project.
The Department has determined that since salt marshes have a high level of functional value, as recognized by the level of protection afforded this resource area under the regulations, pond opening projects must satisfy the standards at 310 CMR 10.32(3).
Under no circumstances may a project be permitted which will have any adverse effect on the specified habitat site of rare species as identified pursuant to 310 CMR 10.37 and 10.59.
Requirements for Project Review and Conditioning
A. Applicant Must Show that Opening is for an Approvable Purpose.
When the outlet of a salt pond which has supported a viable marine fisheries becomes closed (either because the outlet becomes filled in or its position shifts along the barrier beach), it may be desirable to periodically open the outlet artificially in order to manage, maintain or enhance the fishery. The threshold finding the issuing authority must make is whether the applicant has demonstrated that the primary purpose of the pond opening is to manage, maintain or enhance marine fisheries. An applicant may propose activities to maintain the depth and opening of an existing opening, or activities to re-open a closed pond; provided the applicant demonstrates that the pond has been opened in the past as a result of natural or man-made causes, and that a viable fisheries in the pond presently exists or existed in the past.
The existence of a "viable fisheries" shall be determined by the issuing authority using best professional judgment (after consultation with the Division of Marine Fisheries and the local shellfish constable) and shall be based upon submitted information. The existence of a viable marine fisheries and of prior openings may be demonstrated by reliable, credible information. The applicant may submit historical records, including photographic evidence, or if no records exist, he/she may submit an affidavit of one or more individuals made upon personal knowledge.
If an applicant cannot demonstrate an approvable purpose enabling the issuing authority to make this threshold finding, the issuing authority must deny the project. For example, when the intended purpose of a salt pond opening is to control eutrophication or to reduce odor, the project would fall outside of this policy and would not be allowed unless it met all of the applicable performance standards of the regulations.
B. Permit Conditions Must Minimize Adverse Impacts
If an applicant demonstrates an approvable purpose, the issuing authority may permit the activity, provided conditions can be imposed that will prevent or minimize adverse effects to resource areas (except salt marshes) in and around the pond to the greatest extent possible. If conditions adequate to prevent or minimize adverse effects cannot be imposed, an Order of Conditions allowing the opening should not be issued.
Proposed salt pond openings for which the applicant has demonstrated an approvable purpose should be evaluated in the following manner:
- Assess all impacts to affected resource areas and their respective protected interests;
- Develop conditions to prevent or minimize adverse effects to existing resource areas to the greatest extent possible, in accordance with the applicable regulatory provisions; and
- Allow the opening if the project: a) does not have unacceptable adverse effects upon any interests of the Act; b) maximizes fisheries resource maintenance, enhancement or management; and c) prevents or minimizes adverse effects so that the project, overall, contributes to those interests.
The Notice of Intent (NOI) should document that the project is necessary to manage, maintain or enhance marine fisheries and provide baseline information on all resource areas which will be affected by the project. The information provided should be sufficient to allow the issuing authority to assess impacts to these resource areas. Each proposed opening is unique and the level of information required to assess impacts and impose appropriate conditions necessarily will vary. The issuing authority should require the level of information appropriate to the particular project.
At a minimum, the applicant should submit information:
- describing the history of pond opening and its use as a fishery, and the proposed plan for fisheries resource management, enhancement, or maintenance;
- delineating all affected resource areas and identifying short- and long-term impacts to affected resource areas and their affected interests;
- describing the location of, and impacts on, public and private water supplies in the pond's vicinity;
- assessing wildlife habitat, including the presence of rare species habitat in accordance with the applicable procedures at 310 CMR 10.37, 10.59 and 10.60; and
- describing the history of storm events in the immediate area of the pond and impacts of the events on existing resource areas.
In certain instances, the information presented will indicate that no number of conditions will adequately prevent or minimize adverse effects so as to adequately protect the interests of the Act. For example, salt water intrusion may contaminate water supplies to unacceptable levels and no alternative source may be available. It may not be possible to condition a project so that there will be no adverse effect of specified habitat sites of rare species. In such instances, the project should be denied.
Certain conditions will always be necessary to prevent or minimize adverse effects. For example, material excavated from the channel opening should not be removed from the barrier beach. Material should be stockpiled on site and placed, within the barrier beach system as appropriate. Any sediment lost due to excavation and scouring should be replenished to the barrier beach system. A time schedule for pond openings should be included in any Order of Conditions. The schedule should take into account tide fluctuations, impacts on wildlife habitat of fluctuating water levels and exposure in inclement weather, storm forecasts and the potential presence of rare or endangered species in the area. Disturbance of vegetation should be minimized to protect dune stability. Replication of any Bordering Vegetated Wetlands altered directly or by vegetative dieback should be required where possible, particularly within the area exposed by pond lowering, if the area does not naturally revegetate after two growing seasons. Conditions protective of actual or potential water supplies should be incorporated.
Specific monitoring provisions should be incorporated into the Order of Conditions to track the impacts of the opening on the interests of the Act. Reports on all monitoring should be submitted to the Conservation Commission and the Department and reviewed by the issuing authority to determine whether any change in conditions and methods of data collection is warranted to protect the interests of the Act. Conditions should include a provision authorizing the discontinuation of the pond openings, if necessary, to protect the interests of the Act.
Finally, note that projects permitted under this policy may still need to obtain a license pursuant to M.G.L. c. 91, the Waterways Act, and remain subject to applicable terms of any restriction order adopted under M.G.L. c. 131 s.40A, Protection of Inland Wetlands, and M.G.L. c. 130 s.105, Protection of Coastal Wetlands.