RE23RC12: The Wetlands Protection Act

Approved Oct. 19, 2012

1. Background on the Wetlands Act - Why Massachusetts has the Wetlands Act?

a. U.S. Congress enacted the first comprehensive regulatory program in 1970-The Clean Air Act which set the modern pattern

i. The federal government established standards designed to protect the public health

ii. The States are delegated implementation and enforcement authority with the EPA maintaining oversight

b. The Federal Clean Water Act (Section 404)

c. The Safe Drinking Water Act

d. Statistical Background on Wetlands in Mass.

e. Mass. has over 48,000 acres of wetlands

f. Mass. has more than 50% of annual wetland losses due to illegal filling

g. 33% of Mass. wetlands filled in since Colonial days

h. Mass. first state in 1963 that adopted regulations protecting wetlands

i. Matrix (see www.mass.gov) of primary Massachusetts environmental statutes and regulations

2. 8 Primary reasons for protecting wetlands

a. Controls Flooding
b. Filters Impurities
c. Recharges water supply and protects certain habitat/wildlife
d. Protection of public and private water supply
e. Protection of ground water supply
f. Prevention of storm water damage
g. Protection of land containing shellfish
h. Protection of fisheries

3. What is the Purpose and how does one research the Wetlands Protection Act?

1. 1. Massachusetts General Law (MGL) Chapter 131, Section 40 and 310 Code of Massachusetts Regulation (CMR) 10.00, Wetlands Protection Act
   2. 310 CMR 10.00 states its purpose is to define and clarify that process by establishing standard definitions and uniform procedures for conservation commissions and DEP to carry out its responsibilities
   3. Administrative regulations
   4. Local town bylaws
   5. Over 100 Mass. towns have separate wetland bylaws
   6. Purpose of having local bylaws stated in DEP

4. Areas subject to protection under the Wetlands Protection Act: Is there a presence of wetlands on site?

1. 1. Water bodies
   2. Land under water bodies
   3. Land areas bordering on water bodies
   4. Land subject to tidal action or coastal storm flowage
   5. Land subject to flooding or located in 100 year Flood Plain Zone (See FEMA map)
   6. Wetlands soils/top soils
   7. Wetlands plants and vegetation (see DEP plant list)
   8. Certain habitat/wildlife
   9. Both must be present for the Wetlands Protection Act to apply
   10. Buffer zones

5. Resources Available prior to engaging a wetlands specialist

1. 1. National Wetland Inventory
   2. U.S. Dept of Interior on Wetlands and Habitat
   3. Local Conservation Commission By-Laws
   4. MGL c. 131, Section 40 criteria
   5. USGS map
   6. County Soil Survey book
   7. E-DEP WIRE

6. Levels of Enforcement Action: 310 CMR 5.00 (2008)

a. Civil Penalties
b. Criminal Penalties
c. Environmental Police Officers
d. Mitigation Fees and Restoration
e. State surveillance satellite cameras
f. Enforcement orders: “cease and desist”
g. EPA fugitives and DEP monthly enforcement list

7. How the Wetlands Protection Act was implemented

1. 1. Local conservation commission appointed by Board of Selectmen
   2. Conservation commissioners and local town bylaws enforce the Act
   3. Local town bylaws may be more strict than the Act
   4. No person shall remove, fill, damage or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach dune, flat, marsh, meadow or swamp bordering on the ocean or any estuary, creek, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially change or enlarging, an existing and lawfully located structure used in the service of the public and used to provide electric, gas, water, telephone, telegraph and other communication services without filing written notice of his intention
   5. No person shall take action which would result in:

i.Changing drainage characteristics

ii. Changing flushing characteristics

iii. Changing salinity distribution

iv. Changing sedimentation patterns

v. Changing flow patterns

vi. Changing flood detention areas

vii. Lowering the water level

viii. Lowering the water table

ix. Destroying vegetation

x. Changing water temperature

xi. Changing biochemical oxygen demand

xii. Changing physical, chemical or biological characteristics of the receiving water

6. 6. Without the prior approval of:

i. Local permitting authority

ii. Perhaps the state DEP

iii. Perhaps the US Army Corps of Engineers

g. Request for determination of applicability
h. Notice of Intent

8. Filing procedures

a. Request for determination of applicability

1. 1. 1. Notice
      2. Public hearing
      3. Site walk
      4. Positive determination or negative determination
      5. Notice of intent or appeal to DEP
      6. Superseding determination

 

b. Four primary uses of request for determination of applicability

1. 1. 1. Confirm wetlands boundaries
      2. Determine if area is subject to jurisdiction
      3. Determine if proposed work is within are subject to jurisdiction
      4. Determine if work proposed within an area is subject to jurisdiction will cause impacts to wetlands

c. Review sample request for determination

i. Request for Determination of Applicability
ii. Notice of Non-Significance

d. Notice of intent

1. 1. 1. Abbreviated notice of intent and notice of applicability
      2. Public On-Line Information
      3. Public hearing
      4. Site walk
      5. Determination of significance
      6. Notification of non-significance or determination of performance standards
      7. Public Hearings
      8. Order of conditions
      9. Appeal to DEP
      10. Site inspection
      11. Superseding order of conditions
      12. Recording
      13. Certificate of Compliance

e. Review of sample notice of intent
f. Submit on-one with DEP
g. Review of sample order of conditions
h. Summary of Definition and Process

9. Related permits

a. ACEC (Areas of Critical Environmental Concern List)
b. Rivers Bill Act of 1996 (MGL c. 258)

i. Protects 9,000 miles of Mass. riverbanks
ii. Creates 200’ of riverfront areas
iii. Overview of Act and process

c. Local bylaws
d. Chapter 91

i. Regulates activities and inland waterways in tideland and certain rivers

e. Municipal Harbor Laws
f. 2009: new Mass DEP approved stormwater management regulations which is managed through the Wetlands Act. New regulations involved wetlands and new development to protect fish and regulate pollutants
g. 2009 Asian Longhorn Beetle infestation in wetland areas
h. Jan. 2012: Drinking Water Projects Financial Assistance Fund, 310 CMR 45.00
i. DEP offers funding for public water systems under certain conditions to local governments or other community water systems.

 

References:

Dept. of Environmental Protection
Environmental Protection Agency
The Wetlands Act, MGL Chapter 131, Section 40
310 CMR 5.00
310 CMR 10.00
310 CMR 40.00
MGL c 258
Sample Request for Determination of Applicability
Sample Notice of Intent
Sample Order of Conditions
eDEP forms