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Wetlands Protection
Act Regulations
310 CMR 10.00
Preface Appendices
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Note: The following is a preface to, but does not form a part of, the Wetlands Protection Act
regulations (310 CMR 10.00).
PREFACE TO THE WETLANDS PROTECTION ACT REGULATIONS,
2005 REVISIONS
General Approach
The Department revised the wetlands protection regulations in part to respond to recent data
showing greater than expected loss of wetlands, particularly from unpermitted alterations of
resource areas. By reallocating resources from issuing permits for work in the outer portion of
the buffer zone, the Department can increase its outreach and enforcement efforts to address
illegal filling of wetlands. In addition, the Department sought an approach to work in the bufferzone that would increase protection by requiring a setback and placing limitations on eligible
work, combined with a more efficient review process. The revisions are intended to allow areduction of time spent by both conservation commissions and the Department in reviewingproposed activities in the buffer zone more than 50 feet from wetlands. Clarifications to theregulations governing work in resource areas, particularly the review of work in the buffer zone
under a Notice of Intent and the exercise of discretion in allowing alteration of borderingvegetated wetlands, will improve consistency and strengthen the protection of resource areas.
The Department convened an advisory committee consisting of development, conservation
commission, and environmental interests. After exploring several options, the Department
decided to pursue the concept of a simplified review process for eligible projects. The
regulations create incentives for applicants to construct projects further away from wetlands. In
return for the additional protection to wetlands from moving projects further from resource areas,
the procedural aspects of approval and the opportunities for appeals are reduced. In particular,
the requirement that projects seeking simplified review stay more than 50 feet from resource
areas will increase protection over what is currently approved under the existing regulations. The
Department received extensive public comment on the regulations and responded by tightening
the eligibility requirements, limiting refiling for subsequent work closer to resource areas,
requiring verification of some eligibility requirements, clarifying procedures, and adding a sunset
clause.
Background on Buffer Zones
Since the buffer zone was adopted as a regulatory mechanism in 1983, research on the
functions of buffer zones and their role in wetlands protection has clearly established that buffer
zones play an important role in preservation of the physical, chemical and biological
characteristics of the adjacent resource area. Although jurisdiction over work in the buffer zone
remains contingent upon a conclusion by the issuing authority that work near resource areas will
result in their alteration, review of work in the buffer zone is likely to contribute to the protection
of the interests of the Act. The potential for adverse impacts to resource areas from work in the
buffer zone increases with the extent of the work and the proximity to the resource area.
Extensive work in the inner portion of the buffer zone, particularly clearing of natural
vegetation and soil disturbance is likely to alter the physical characteristics of resource areas by
changing their soil composition, topography, hydrology, temperature, and the amount of light
received. Soil and water chemistry within resource areas may be adversely affected by work in
the buffer zone. Alterations to biological conditions in adjacent resource areas may include
changes in plant community composition and structure, invertebrate and vertebrate biomass and
species composition, and nutrient cycling. These alterations from work in the buffer zone can
occur through the disruption and erosion of soil, loss of shading, reduction in nutrient inputs, and
changes in litter and soil composition that filters runoff, serving to attenuate pollutants and
sustain wildlife habitat within resource areas.
Wetland Regulation: Preface Appendices – May 2008 1
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
Simplified Review for Work in the Buffer Zone
The Department has established a simplified review for eligible activities in the buffer zone
using an Order of Resource Area Delineation. The purpose of these revisions is to steer
development further from resource areas and to ease the administrative burden on commissions
and the Department. The revisions are designed to preserve the existing jurisdiction and
standards of the wetlands regulations, while relying on certification by applicants of their
project’s eligibility.
To qualify for the simplified review, work in the buffer zone must be outside of and more
than 50 feet from a resource area and located away from other sensitive areas, incorporatestormwater management, and provide erosion controls during construction. In response to
concerns raised during the public comment period, the Department added several eligibilityrequirements. The slope within the buffer zone must be no steeper than 15%. No more than40% of the buffer zone between 50 and 100 feet may be impervious surface. Simplified reviewis available only for buffer zones of inland resource areas. Finally, many commenters expressed
concern about the potential for later filings for work in the first 50 feet of the buffer zone aftertaking advantage of the simplified review process. The Department has responsed by adding a
provision that prevents applicants from filing a Notice of Intent in the first 50 feet during the
three year term of the Order of Resource Area Delineation and by adding a provision that
explicitly requires the extent of prior work in the buffer zone to be taken into account in any
subsequent filing.
An applicant must submit an Abbreviated Notice of Resource Area Delineation, with the fee
and abutter notification, to confirm the extent of resource areas and the buffer zone and to certify
eligibility. The conservation commission will confirm the delineation through an Order of
Resource Area Delineation, which will be recorded. A commission may require a Notice of
Intent if the Stormwater Management Plan does not meet Department standards. To address
concerns raised during public comment about the lack of opportunity for conservation
commissions to verify eligibility, commissions now may declare a site ineligible if it contains
steep slopes, sensitive water resources, or rare species habitat.
In response to additional concerns about oversight, the Department has retained its protocol
of conducting site visits if a project is appealed. The Department has also added a sunset clause
of three years, which will require the Department to evaluate the simplified review process. The
revisions will enhance wetlands protection by allowing reallocation of resources to enforcement
and review of projects with greater impacts.
Standards for Work in the Buffer Zone under a Notice of Intent
The revised regulation establishes a narrative standard for work in the buffer zone performed
under a Notice of Intent. Conditions on work in the buffer zone may include erosion controls,
a clear limit of work, preservation of natural vegetation adjacent to the resource area, and design
review to avoid alteration of wetlands. Characteristics of the buffer zone at a particular site, such
as the presence of steep slopes or the absence of natural vegetation, may increase the potential
for adverse impacts on resource areas. The review and conditioning of activities in the buffer
zone should be commensurate with the extent and location of the work in the buffer zone and
its potential to alter resource areas. The standard is intended to provide better guidance to
applicants, conservation commissions and DEP by identifying the measures that will ensure that
adjacent resource areas are not adversely affected during or after completion of the work.
Minor Activities
Minor activities are categories of work that are not subject to review. The proposed
regulations would have allowed the expansion of single family homes of up to 20% as a minor
activity and also would have allowed minor activities in the flood plain. In response to public
comment in opposition, these proposals have been withdrawn.
Wetland Regulation: Preface Appendices – May 2008 2
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
Fees
The Department proposed increases to the fee for a superseding order from the Department,
after many years without an adjustment. Due to concerns raised during the public comment
period about the fee amounts, the fees have been reduced from $500 to $200, with a maximim
of $100 for a single family house.
Bordering Vegetated Wetlands: the 5000 sq. ft. Provision
The regulations for bordering vegetated wetlands give issuing authorities the discretion to
allow the loss of up to 5000 sq. ft. of bordering vegetated wetlands. To improve consistency inthe application of this provision, text has been added to guide the exercise of discretion. The
basic concepts of avoiding, minimizing, and mitigating impacts will ensure that these fragileresources are appropriately protected. The text is similar to the introductory language on theexercise of discretion for limited projects. This provision was widely supported in the publiccomments.
Stormwater Management
A reference to the Department’s Stormwater Management Standards has been added to the
section on orders of conditions, to ensure that applicants and conservation commissions
appropriately apply the standards to projects. The Department’s Stormwater Standards,
consistently implemented, will greatly reduce wetland and water quality impairments from
stormwater runoff.
Coastal Mouth of River
To improve clarity, consistency, and predictablility in determining the location of the mouth
of a river at the coast for purposes of implementing the Rivers Protection Act, the Department
developed maps showing the location of the mouths of coastal rivers. The Department provided
these maps to conservation commissions for their review, and the maps were available for public
comment along with the proposed regulatory revisions. As a result of the comments, the
Department modified several of the proposed locations of mouths of coastal rivers.
Enforcement
The Department has strengthened the enforcement provisions, to explicitly state that
continuing violations, such as leaving fill in place or failure to restore, are violations of the Act.
Failure to comply with a certification and misleading or inaccurate statements in an application
or certification are also subject to enforcement. Finally, the Department included in the
regulations the statutory language giving the Department and conservation commissions the right
to enter private property to enforce the Act, subject to constitutional limitations on government
access.
Appeals to Adjudicatory Hearings
For many years the Department has extended the opportunity to request an adjudicatory
hearing to the same parties that may request a superseding order or determination by a regional
office. The parties who may request review by the regional office are identified specifically in
the Wetlands Protection Act. Because the statute does not specify adjudicatory appeal rights,
parties who must be provided an opportunity for a hearing are defined under M.G.L. c. 30A as
those with constitutional or other statutory rights. The Department’s extension of appeal rights
beyond minimum requirements has led to delays in resolving appeals and questions about the
legitimacy of appeals that appear to lack a true environmental basis.
Wetland Regulation: Preface Appendices – May 2008 3
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
In this revision, the Department has added requirements for participation by abutters,
aggrieved persons, or ten resident groups in the permitting process, so that the Conservation
Commission or the Department may consider objections prior to issuance. The Department had
proposed to eliminate appeals by abutters who were not also aggrieved, but based on concerns
raised during the public comments period, the final regulation allows abutters to appeal with
prior participation. Similarly, ten resident groups may appeal if any member has previously
participated. Previous participation means submitting written information to the conservation
commission, requesting the superseding order, or providing written information to the
Department. The Department is continuing to extend the opportunity to request adjudicatory
hearings to conservation commissions for all cases, acknowledging their critical role in
administering the Act.
Finally, the section on variances requires the Department to solicit public comments througha notice in the Environmental Monitor, replacing appeals to an adjudicatory hearing with a publichearing. Experience with abutter appeals and variances suggests that extension of appeal rightshas overburdened the Department and too often served as an opportunity to delay projects,
undermining legitimate wetlands protection efforts. Many commenters were concerned aboutadequate opportunity for public comment on variance applications, so the final regulations
require the Department to hold a public hearing. While appeals may be filed for variances based
upon overriding public interest, the grounds have been limited to avoid reconsideration of
matters already addressed by the Commissioner. An adjudicatory hearing is available for cases
involving allegations of a taking.
Abutter Notification
Amendments to the Wetlands Protection Act require applicants to provide notice to abutters
at the time of filing of a Notice of Intent. The Department has codified this requirement, an
addition to the regulations supported by public comment.
Conclusion
The final regulations reflect the many comments on the proposed regulations from
conservation commissions, developers, environmental advocates, and other interested persons.
The Department benefitted greatly from this public participation and is committed to evaluation
of the simplified review process to ensure that it is effective as an incentive for increased
protection of wetlands in exchange for reducing permitting process. While acknowledging the
skepticism of many commenters about the reliability of such a system for wetlands protection,
the Department has committed to evaluating the program and will continue it only if it is
successful. Regulatory systems based on applicant certifications has proven successful in other
regulatory contexts, and allow permitting agencies such as conservation commissions and the
Department to allocate resources to activities with the greatest environmental yield. Based on
the best available data on the extent of violations and the current protection of wetland resources.
(PAGES 321 AND 322 ARE RESERVED FOR FUTURE USE.)
Wetland Regulation: Preface Appendices – May 2008 4
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: Appendix
Note: The following are appendices to, but not part of, 310 CMR 10.00.
PREFACE TO REVISIONS TO THE MASSACHUSETTS WETLANDS
REGULATIONS (310 CMR 10.00)
RELATING TO THE DEFINITION OF “EXTENDED
DROUGHT” AND DISTINGUISHING “PERENNIAL RIVERS”
FROM “INTERMITTENT STREAMS”, 2002 REGULATORY REVISIONS
Introduction
The Wetlands Protection Act (M.G.L. c. 131, § 40) was amended in 1996 to provide additional
protection for rivers, defined in the Act as “any natural flowing body of water that empties to any
ocean, lake, pond, or other river and which flows throughout the year.” Since promulgating regulations
in 1997, the Department of Environmental Protection (Department) has found that the original
regulatory criteria do not clearly distinguish perennial rivers that flow throughout the year from
intermittent streams that do not flow throughout the year. Many factors embodied in the original
regulations, such as soil types or the presence or absence of macroinvertebrates, cannot practically be
used to distinguish between perennial and intermittent streams. Other factors, such as stream gages,
have limited usefulness due to their limited geographic extent. Still other factors, such as watershed
size, are relevant but need to be modified based upon more recent research.
The Department has also found that the original definition of extended drought, which was based
solely on precipitation data, does not accurately reflect the role of groundwater and stream flow during
drought conditions. Extremely dry conditions existed in most of Massachusetts in the summer of 1999,
leading to some of the lowest river and stream flows ever recorded. Even though many federal and
state agencies declared droughts, the Wetlands Protection Act definition was not triggered in most
communities because of brief but heavy summer rainstorms – rainstorms that fulfilled the regulatory
precipitation numbers but did not provide sufficient recharge to restore groundwater or stream flow
levels.
In order to address the issue of perennial rivers and drought, the Department formed a technical
advisory committee with representatives from various interest groups, and with research and technical
support provided by the United States Geologic Survey (USGS) and the Massachusetts Department
of Environmental Management (DEM). The technical advisory committee spent more than two years
searching for an approach that was based upon sound science and could also be implemented at the
local level. This approach, based primarily on watershed size and surficial geology, is described below
and is embodied in the new regulations.
It is also important to note that many intermittent streams still receive protection under the Wetlands
Protection Act through applicable resource area performance standards for land under water, bank,
land subject to flooding, and often, bordering vegetated wetlands. The distinction between perennial
and intermittent flow pertains only to whether the stream has an associated riverfront area.
The Rulemaking Process
Drought conditions across the Commonwealth in late 2001 prompted the Department to adopt
changes to the extended-drought provisions as an emergency regulation in December 2001. The
Department then conducted four regional public hearings on the emergency-drought provisions as well
as the perennial river versus intermittent stream changes. The Department received public comments
through March 29, 2002. Thirty-eight parties commented on the proposed amendments. Of those,
thirty-one commentators generally supported the proposed amendments or requested clarification of
certain provisions. Six parties commented against the proposed amendments, and one party requested
additional time to review and comment. Based upon a careful review and consideration of the
comments, the Department has made some changes to the public hearing draft as described below.
Wetland Regulation: Preface Appendices – May 2008 5
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
Summary and Rationale of the New Regulations
A. Perennial Rivers and Intermittent Streams:
1. Watershed Size and Surficial Geology.
The Department and its technical advisory committee concluded field observations alone
cannot be used to predict whether a small stream is likely to flow throughout the year. Given
permitting time constraints, the Department also concluded that it would be unworkable to devise
a system based entirely on stream flow observations made during the late summer or early fall,
when water levels are often at their lowest. Aside from the practical difficulties with this approach,
observations made during this period may not be definitive when the conditions are unusually wet
or unusually dry compared to long-term records.
To explore other options, the Department contracted with the USGS to research watershed
characteristics that might be useful in classifying streams, such as drainage area, mean basin slope,
length of stream, urbanized land cover, and the percentage of sands and gravels in the watershed.
This research revealed that the most important characteristics for predicting whether a river flows
throughout the year are watershed size (drainage area) and surficial geology (the percentage of
sands and gravel in the watershed). As a result of this research, as well as independent analysis
and field-testing by the Department, the Department and its technical advisory committee agreed
that watershed size and surficial (subsurface) geology could reliably be used to predict whether a
stream will flow year-round. There is a strong correlation between watersheds greater than or
equal to one square mile and streams that are predicted to flow 99% of the time. There is also a
strong correlation between watersheds with a high percentage of stratified drift (sands and gravels)
and streams that flow 99% of the time. These two factors, as well as a fail-safe field observation
provision, have been incorporated into the new regulations.
USGS continues to refine its statistical methodology to better predict the probability of a stream
flowing year-round. Once completed, the Department plans to use this information to produce
stream maps that will eliminate reliance on the USGS topographic maps. Since this process will
take several years, the regulatory changes described herein are necessary to address perennial
versus intermittent determinations during the interim.
2. USGS Topographic Maps and STREAMSTATS.
The new regulations continue to rely upon an initial review of USGS topographic maps.
Although these maps were not specifically developed to delineate perennial rivers from intermittent
streams, the Department believes it is important to base initial reviews on maps that are widely
available to Conservations Commissions and the regulated community. The regulations then
provide for adjustments to stream status based upon watershed size, watershed geology, and field
observations of no flow. Under the new regulations, streams that are shown as perennial on USGS
topographic maps are classified as perennial. Streams that are shown as intermittent, or not shown
at all, are classified based upon watershed size. If the watershed size is greater than or equal to
one square mile, the stream is perennial. If the watershed size is less than one square mile, the
stream is most likely intermittent.
Wetland Regulation: Preface Appendices – May 2008 6
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
Some intermittent streams with a watershed size of between one-half and one square mile may
be shown to be perennial if the USGS STREAMSTATS model predicts a positive flow or if the
watershed contains at least 75% stratified drift. STREAMSTATS is a new statistical tool
developed by USGS that can be accessed through the USGS web site at
http://ma.water.usgs.gov/streamstats/. This web site provides valuable stream flow information to
applicants and regulators alike. STREAMSTATS incorporates watershed size and geology into
its calculations, and can be used to analyze the probability that a stream flows on a year-round
basis at a particular location. That probability is reported in terms of flow duration statistics. Flow
duration statistics indicate the percentage of time stream flows are equaled or exceeded at a given
stream location. For example, if a stream’s flow at the 99% flow duration is five cubic feet per
second, the stream’s flow is predicted to be greater or equal to that discharge rate 99% of the time.
Streams with a predicted flow rate greater than or equal to 0.01 cubic feet per second at the 99%
flow duration rate are considered perennial. The 99th percentile is the best available statistical
expression of the statutory language “flows throughout the year.”
Some commentators requested that the Department require use of the STREAMSTATS tool
exclusively, and abandon reliance on USGS topographic maps. While the Department may take
this approach in the future, we are concerned about USGS’s ability to handle the high demands this
would place on its web site. In addition, STREAMSTATS cannot work if the stream’s centerline
has not been digitized. Thus, streams located in many southeastern communities (a list of
watersheds is included in the regulations), as well as smaller, unmapped streams throughout the
state, cannot be analyzed using STREAMSTATS. In those communities, watershed size and
surficial geology must be analyzed using available maps.
Other commentators expressed concerns about using STREAMSTATS in small watersheds,
particularly those below 1.61 square miles. This number represents the smallest watershed size for
which USGS has calculated “error bands” to accompany the STREAMSTATS package. After
consultation with USGS, plus field-testing on small streams, the Department believes that
STREAMSTATS properly estimates stream flow in watersheds down to one-half square mile in
size. The regulations reflect this lower limit. Similarly, the regulations place a one-half square mile
size limit on watersheds in which stratified drift percentages must be taken manually or electronically
from surficial geology maps.
3. Direct Observations of No Flow.
Even though watershed size and geology are the most important characteristics for determining
stream status, the methods outlined above are still “predictive” and may be overcome by direct
observation. As a fail-safe mechanism, any stream must be classified as intermittent if it is observed
not flowing for four days in a consecutive 12-month period, unless the observation occurs during
a period of extended drought or the stream is significantly affected by withdrawals, impoundments,
or other man-made flow reductions or diversions. In such cases, the observations become less
probative in determining the stream’s classification and the stream should be classified based upon
its status under the regulations absent the observation.
Some commentators questioned the requirement for four observation days rather than one, and
questioned the stringency of the required documentation. The Department believes that four days
(approximately 1% of days in a year) is a reasonable requirement that is rationally related to the
best statistical evidence available to predict a stream’s status. The new regulation is also meant to
ensure that field observations are reliable, credible, and well documented. In the past, the
Department has too often struggled with poorly documented and irreconcilable observations from
opposing parties. The regulations also clarify what is meant by “flow.”
Wetland Regulation: Preface Appendices – May 2008 7
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
4. Perennial Streams with Very Small Watersheds.
Some commentators requested that the regulations include a method for proving that streams
with very small watersheds (i.e. less than one square mile) flow throughout the year. These streams
may emanate from springs, or in areas such as Cape Cod, they may draw upon a large regional
groundwater aquifer system. Regardless of watershed size, these streams are considered perennial
under the regulations if they are shown as perennial on USGS topographic maps. For those
streams shown as intermittent, or not shown at all, they may be considered perennial if the
watershed size is at least one-half square mile and it meets either the STREAMSTATS or stratified
drift provisions. The stratified drift provisions have been broadened in the final regulations to
encompass the entire state rather than a more limited list of watersheds. Streams that do not fit into
these categories must be classified as intermittent. Unfortunately, proving that a stream is perennial
by direct observation requires multiple observations made in the late summer and early fall months
over many years, and the Department could not craft a workable provision to accommodate those
timeframes.
B. Extended Drought.
The definition of “extended drought” has been amended to coincide with an “Advisory” or more
severe drought as declared by the Massachusetts Drought Management Task Force in accordance with
a statewide drought management plan. This change was made on an emergency basis, effective
December 21, 2001, and is now incorporated into the permanent regulations. The plan has five
drought action levels based upon multiple indicators such as stream flow, groundwater elevations,
precipitation, snow pack, wild fire danger, crop moisture availability, reservoir levels, and the Palmer
Drought Severity Index. The Task Force will issue written statements when a drought develops, when
drought levels change, and when the drought ends. Monthly maps will be prepared by DEM detailing
the geographic extent of the drought and the corresponding drought level. Drought information is
published on the web at http://www.state.ma.us/dem/programs/rainfall/index.htm.
Some commentators questioned whether the regulations should be tied to a more severe drought
level than “Advisory.” Prior to promulgating these final regulations, the Department conducted a return
period analysis to determine how often an Advisory level of drought would occur compared to a
drought declared under the original regulation’s definition based solely on precipitation. The analysis
found that the probability of a drought declaration at a number of locations under the new system is less
likely, or statistically the same, compared to the old definition. However, the geographic extent and
duration of the drought may increase under the new system, as it reflects the time necessary for
groundwater and stream flow levels to recover. The Department is satisfied that the new statewide
system more accurately portrays stream flow conditions, will be more easily used, provide consistent
analysis, and will not lead to more frequent drought declarations than the original regulations.
Many commentators expressed concern with the language concerning withdrawals, impoundments,
and diversions. The Department has modified this language slightly in response to comments, and is
also planning to develop guidance on this issue. First, the Department has retained the concept that the
Legislature meant to protect rivers that would flow throughout the year in their natural condition.
Property owners cannot raise the flashboards or otherwise manipulate the water flowing long enough
to claim a stream is intermittent and escape riverfront jurisdiction. Man-made changes in stream flow
should be investigated when streams that are predicted to flow perennially are observed dry. However,
the Department has added the word “significant” to stress that the stream’s apparent change in status
(i.e. a perennial stream is observed intermittent) must be directly related, and in most cases, proximate,
to the withdrawal, impoundment, or other flow reduction or diversion. In other words, “but for” the
withdrawal, impoundment, or other flow reduction or diversion, the stream would be perennial. The
regulation also clarifies that the changes must be man-made.
Wetland Regulation: Preface Appendices – May 2008 8
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
PREFACE TO WETLANDS REGULATIONS RELATIVE TO
MEAN ANNUAL HIGH WATER, 2000 REGULATORY REVISIONS
Introduction
The Department of Environmental Protection promulgated regulations on October 6, 1997 to implement the Rivers
Protection Act amendments to the Wetlands Protection Act. Since then, the Department has gained considerable
field experience and now recognizes that one aspect of these regulations, determining the “Mean Annual High-Water
(MAHW) Line,” can be difficult and confusing in the field. Locating the MAHW line is important because it
establishes the lower boundary of the Riverfront Resource Area.
The Rulemaking Process
The Department established a technical advisory committee drawn from the environmental and development
communities, plus federal, state, and municipal staff members, to develop improvements to the existing MAHW
regulation. The technical advisory committee met throughout the fall of 1999 and spring of 2000 to review scientific
literature, analyze potential methods for locating MAHW, draft a proposed regulation that was consistent with the
legislative definition, and field-test the proposed definition. The technical advisory committee unanimously agreed
upon the approach embodied in the new MAHW regulation, and the Department thanks each member of the
committee for contributing so many hours in such a professional and dedicated manner.
The Department held five public hearings throughout the Commonwealth on the draft regulation, and received public
comment through February 22, 2000. The new regulation is effective as of May 12, 2000.
Summary and Rationale of the Mean Annual High-Water Regulations
The Legislature defined MAHW in the Rivers Protection Act as, “…the line that is apparent from visible markings
or changes in the character of soils or vegetation due to the prolonged presence of water and that distinguishes
between predominantly aquatic and predominantly terrestrial land.”
The technical advisory committee and the Department first agreed that the legislative definition focuses on field
indicators as the primary tool for locating the MAHW line. It requires us to find, “…a line that is apparent from visible
markings or changes in the character of soils or vegetation…” (emphasis added). Upon review of the scientific
literature, the technical advisory committee unanimously concluded that the concept of “bankfull discharge,” as
evidenced by “bankfull field indicators,” most closely matched the legislative definition. In addition, our collective
experience has shown that boundaries based upon readily-observable field indicators are easier to implement for
conservation commissions and other parties than a methodology that relies on complicated statistical computations.
“Bankfull discharge” corresponds to the elevation, or stage of the river, that actively creates, modifies, and maintains
the river’s channel. In the context of these regulations, the river’s channel can be described broadly as the cross-
sectional area that carries the river’s annual high water flows, which typically occur in early spring. During bankfull
discharge, the water is moving sediment, forming or removing bars, forming or changing bends and meanders, and
generally doing work that results in morphologic change to the river system. These morphologic changes to the river
system can be observed in the field. Bankfull field indicators include changes in vegetation (usually changes in
vegetational community), stain lines, top of point bars (depositional features), changes in slope, changes in bank
material, and bank undercuts. The Department is releasing guidance materials concurrently with the new regulation
to assist conservation commissions and other parties in identifying these features in the field.
Wetland Regulation: Preface Appendices – May 2008 9
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
The new regulation makes it clear that in most rivers, the first observable break in slope will continue to indicate the
MAHW line. However, in some river reaches, characterized by features such as a low gradient, meanders, oxbows,
histosols, a lowflow channel, or poorly-defined or nonexistent banks, the MAHW line will be evidenced by some
combination of the bankfull field indicators listed above. It is important to understand that no one bankfull field
indicator should be taken alone; multiple corroborating features should be sought. Bankfull field indicators may be
quite subtle in a meandering river with a broad floodplain, or in a wetland stream, so multiple observations along both
sides of the river, combined with field indicators located up and down the river reach, may be necessary.
For tidal rivers, the Legislature has defined MAHW to be the mean high tide line. The MAHW regulations reference
the existing description of the mean high tide line found in the coastal section of the Wetlands Protection Act
Regulations at 310 CMR 10.23.
Wetland Regulation: Preface Appendices – May 2008 10
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Appendix: continued
PREFACE: 1997 REGULATORY REVISIONS FOR THE RIVERS
PROTECTION ACT AMENDMENTS TO THE WETLANDS PROTECTION ACT
I. Introduction
The Rivers Protection Act (St. 1996, c. 258), signed into law August 7, 1996 and effective
immediately, added a new resource area and accompanying performance standards to the Wetlands Protection Act.
The resource area is called the "riverfront area" and extends 200 feet (25 feet in municipalities with large populations
and in densely developed areas) on each side of perennial rivers and streams throughout the Commonwealth.
Although Massachusetts has almost 9000 miles of rivers, the riverfront area is less than one percent of the state's total
acreage. The purpose of the Rivers Protection Act is to preserve the natural integrity of rivers and adjacent land for
the important values these areas provide to all citizens of the Commonwealth.
Unlike earlier versions of the "Rivers Bill," the Rivers Protection Act as enacted does not prohibit
activities near rivers. Applicants proposing work in the riverfront area must obtain a permit, called an Order of
Conditions, from the local conservation commission or from the Department of Environmental Protection on appeal.
Applicants must demonstrate that projects meet two performance standards prescribed in the statute: that there are
no significant adverse impacts on the riverfront area to protect public and private water supplies, wildlife habitat,
fisheries, shellfish, groundwater, and to prevent flooding, storm damage and pollution and there are no practicable
and substantially equivalent economic alternatives to the proposed work with less adverse effects on these public
interests.
II. Regulatory Development Process
The Department established a Riverfront Advisory Committee to participate in the development of its
regulations. As required by the Rivers Protection Act, the eight member committee included four representatives
of environmental organizations, a developer, and a representative for real estate, agriculture and aquaculture interests.
Three committee members owned land within the riverfront area. The committee met biweekly from January through
April, 1997.
The Riverfront Advisory Committee provided valuable perspectives on the issues raised by the statute
and on the Department's interim policy issued in November 1996 to provide guidance to commissions and applicants
between enactment of the statute and promulgation of regulations. The Department also had the benefit of comments
from other knowledgeable individuals from the development, environmental, and legal communities. The Department
held seven public hearings in May 1997 and received over 1,200 pages of comments from citizens, environmental
organizations and development interests.
The regulations were promulgated on July 25, 1997, with an effective date of October 6, 1997.
Because they provide a greater level of detail than the Department's interim policy, the regulations may be helpful
in decision making for cases arising between August 7, 1996 and October 6, 1997. As of October 6, 1997, the
revised 310 CMR 10.00 must be used to implement the Rivers Protection Act.
III. Summary and Rationale of the Regulations
The regulations reflect the Department's responsibility to honor the legislative mandate to protect
riverfront areas for their important public values. The two performance standards and the definition of "river," which
together provide this protection, are set forth in the statute. Wherever possible, the Department emphasized ease
of implementation to avoid unnecessary delays for applicants and to reduce the administrative burden on conservation
commissions. The Department received comments expressing many conflicting views of the legislative intent behind
the Rivers Protection Act. The regulations are designed to implement the statute by providing clear procedures and
substantive criteria to guide applicants, conservation commissions, and Department staff from project design through
the decisionmaking process. The new provisions governing riverfront areas are located at 310 CMR 10.58; the
variance provisions formerly at 310 CMR 10.58 and 10.36 have been moved to 310 CMR 10.05 (10).
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310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
Definition of River. The Department's regulations reflect the broad definition of "river" presented in the statute.
Although many people think of rivers as relatively large bodies of water as opposed to smaller streams, the statutory
language clearly encompasses all perennially flowing waters. The physical distinction between intermittent and
perennial streams is critical because it determines whether or not an area is subject to jurisdiction. The Department
decided to use United States Geological Survey (U.S.G.S.) or other more recent maps provided by the Department
as presumptively showing perennial streams for three reasons. First, maps offer a relatively accurate and convenient
tool for applicants, commissions, and interested citizens. Second, maps provide evidence that is gathered and cross-
checked over time, as opposed to one-time observations that can easily be influenced by recent weather conditions.
Third, the use of maps will save most applicants time and money that would otherwise be spent conducting case-by-
case field investigations.
The regulations, however, allow applicants or others to present evidence that the mapped information
is inaccurate. Commissions should still perform site visits and verify the location and status of rivers and streams at
project locations. In response to concerns about the burden on commissions to rebut the presumption, the
regulations specify that conservation commissioners, commission staff, and Department staff are competent sources
of such evidence.
Definition of Mean Annual High Water. Mean annual high-water line is defined in the statute as the line apparent from
visible markings and changes in soils and vegetation from the prolonged presence of water and which distinguishes
between predominantly aquatic and terrestrial land. Although the boundary of bordering vegetated wetland is also
determined by changes in soils and vegetation, the mean annual high-water line is determined by characteristic
features indicative of fluvial processes.
The Department determined that in the vast majority of cases, the mean annual high-water line specified
as the boundary of the riverfront area is coterminous with the upper boundary of the bank. The top of bank is
currently used to determine wetlands boundaries, and is relatively easy to identify without expensive engineering
calculations and without engendering disputes. Using an existing wetlands boundary will benefit commissions and
applicants because they are already experienced in its identification and will avoid the potential for confusion in using
another distinct boundary. Some commenters expressed concern about using the upper boundary of banks to
determine jurisdiction for low gradient rivers with wide areas of submergent or emergent vegetation. The regulations
clarify that the bank will be located on the landward edge of such vegetation, and that U.S.G.S. stream gauge data
may be used to identify the annual flood level as an alternative to the first observable break in slope.
Practicable Alternatives. The Rivers Protection Act requires applicants to demonstrate that there is no practicable
and substantially equivalent economic alternative to the proposed project with less adverse impact on the protected
interests. A "practicable and substantially equivalent economic alternative" is defined in the statute as an available
and feasible alternative which will accomplish the project's purpose, taking into account costs, logistics, the proposed
use, and technology. The Rivers Protection Act also specifies the scope of alternatives to be evaluated. For activities
associated with a single family house on a lot recorded prior to August 7, 1996, the alternatives considered must be
limited to the lot. For any other activity, including the creation of a real estate subdivision, the area under
consideration must extend to the subdivided lots, any parcel out of which the lots were created, any adjacent parcels,
and any other land which can reasonably be obtained.
The evaluation of alternatives to determine whether they are practicable is called an "alternatives
analysis." The text of the Rivers Protection Act requiring evaluation of alternatives is quite similar to the practicable
alternatives analysis used for many years by the U.S. Army Corps of Engineers for permits involving work in
wetlands and waterbodies under Section 404 of the federal Clean Water Act. The Department reviewed federal
regulations and case law to interpret this performance standard, allowing for the differences between the text of the
Rivers Protection Act and the federal guidelines. Although the word "avoid" is not used in either the federal or state
text, the effect of the practicable alternatives analysis and the purpose of evaluating alternatives is to determine
whether impacts to resource areas can be avoided.
The Department's regulations address two concerns about the practicable alternatives performance
standard. First, the definition of "practicable" in the Rivers Protection Act explicitly requires issuing authorities to
consider the costs of alternatives. The regulations provide guidance on how costs should be taken into account in
the decisionmaking process. While issuing authorities may require the submission of financial data to assess costs,
the consideration of costs of alternatives should be limited to a determination of whether costs are reasonable or
prohibitive within the context of the project purpose.
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310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
Second, the regulations limit the scope of the alternatives analysis so that applicants will not be required
to evaluate an unduly broad range of project locations. The number of cases which will require off-site alternatives
analysis will be limited to larger projects and certain public projects. Alternatives for many projects, including
expansions, extend only to adjacent lots. In response to concerns about conservation commission evaluation of
alternatives in other municipalities, the final regulations generally limit the scope of alternatives to within municipal
boundaries except when a broader analysis is otherwise being conducted for an Environmental Impact Report or
404/401 permit.
No Significant Adverse Impact. The Rivers Protection Act requires an applicant to demonstrate that any work,
including proposed mitigation measures, will have no significant adverse impact on the riverfront area to protect
public and private water supplies, groundwater, wildlife habitat, fisheries, shellfish, and to prevent flooding, storm
damage and pollution. In its regulations, the Department has chosen to identify criteria to implement this standard,
avoiding the unpredictability and inconsistency of case-by-case review of projects without any guidelines.
The criteria include a limitation on alteration, a 100 foot vegetated corridor, stormwater management,
and provisions to protect wildlife habitat. The Department also established separate criteria specifically for 25 foot
riverfront areas. These criteria were selected to promote the benefits of protecting the riverfront area, while ensuring
flexibility for many projects. While the criteria will restrict activities within riverfront areas, there is no "prohibition"
on development within the riverfront area. Issuing authorities must allow the use of lots recorded before August 7,
1996 for single family house projects. Full compliance with the criteria may also be relaxed to accommodate a
variety of circumstances, including limited projects, redevelopment projects, and septic systems or stormwater
management facilities when alternative locations are not available.
The criterion of a 100 foot corridor of undisturbed vegetation is based on the scientific literature which
recognizes the importance of naturally vegetated riparian areas for the reduction of nonpoint source pollution and
protection of wildlife habitat. Limitations on alterations within the entirety of the riverfront area are justified by the
need to protect all eight interests of the Act. The limitation of 5000 square feet or 10%, whichever is greater, applies
to lots existing on the effective date of the regulations and to entire subdivisions. The limitation of 10% for new lots
removes the incentive to create small lots in order to maximize the potential for alteration of riverfront areas.
Many commenters requested enhanced protection of wildlife habitat. Work may not impair the capacity
of the riverfront to provide wildlife and vernal pool habitat. A wildlife habitat evaluation may be required for larger
projects, and the regulations identify features of important riverfront wildlife habitat. Certified vernal pools are
protected at the same standard as rare species habitat, but vernal pools which are not yet certified are also protected.
Restoration and Other Mitigation. Redevelopment of previously developed riverfront areas brings opportunities for
restoration and other forms of mitigation. Rather than simply to stem the tide of further deterioration of water quality,
the regulations provide an opportunity to improve our rivers by allowing issuing authorities to require on-site
restoration of riverfront areas in exchange for approving additional development farther away from the river.
Mitigation, such as preservation of riverfront land or improving an existing adverse impact on-site or within the
watershed, also may be approved in exchange for additional development. The regulations include ratios limiting the
amount of additional development that an issuing authority can permit to ensure that there will be no significant
adverse impact from these projects. Based on comments received on the proposed regulations, the final regulations
allow a broader range of redevelopment projects to qualify for the restoration and mitigation option, and also clarify
the standards required of these projects. Restoration and other mitigation opportunities offer applicants greater
flexibility without compromising environmental protection.
Limited Projects. Limited projects are categories of activities within the existing wetlands regulations which can
proceed at the discretion of the issuing authority without fully meeting the resource area performance standards.
Many limited projects are activities which are important to public health, safety, and the environment, such as landfill
closures. The Department has interpreted the Rivers Protection Act as allowing issuing authorities the discretion to
permit limited projects within the riverfront area.
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310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Preface: continued
The Department addressed limited projects in several ways. To reduce discrepancies in the use of
limited projects, the text has been revised to guide the exercise of discretion for projects in any resource area. The
basic concepts of avoiding, minimizing, and mitigating impacts will provide better protection of all resource areas.
The new regulations also codify a long-standing policy interpreting the limited project provision for road or driveway
access to uplands. These revisions will promote efficiency in the administrative process and more predictable
decisionmaking, benefiting applicants as well as government. Finally, the regulations allow footpaths and bikepaths
as limited projects if they are designed to be compatible with projected uses and the character of the particular
riverfront area. Public access and other water-based recreational facilities within the riverfront area may be allowed
under the existing limited project for construction and maintenance of water-dependent uses.
Alterations for Minor Activities without Review. The existing wetlands regulations require applicants to file a Notice
of Intent for any alteration of a resource area and to obtain an Order of Conditions for any work unless the issuing
authority determines that the area of the proposed work is not significant to any interest identified in the statute.
While the riverfront area is a resource area under the statute, truly minor alterations will not jeopardize these interests.
The Department has determined that for these activities there will be no significant adverse impact on the riverfront
area and that there are no alternatives with less adverse effect on the interests identified in the statute. The exclusion
of minor activities from review under the requirements for the riverfront area, and also an exclusion from review for
work in the buffer zone to other resource areas, will minimize the administrative burden on issuing authorities by
reducing the number of projects subject to full application requirements and will relieve some potential applicants of
permitting responsibilities. While some conservation commissions urged the Department to require review of these
activities or to adopt a notification procedure, the Department concluded that the administrative burden of additional
procedural requirements is not justified. However, the categories of minor alterations have been carefully
circumscribed to avoid the potential for impacts to resource areas.
Building on Subdivision Lots. Based on the language of the statute, the Department extended the grandfathered
status for definitive plans to the road and infrastructure, the subject of the Planning Board review, but not to future
activities on the lots. The Department has ensured that these lots can be developed for single family houses,
provided other legal requirements are met; the issue for review is the placement of structures within the lot. The
regulations also ensure that single family houses can be built on lots recorded before the passage of the statute, and
limit the scope of alternatives that must be considered for new single family lots. For subdivisions receiving approvals
after August 7, 1996, the regulations require a more limited scope of alternatives analysis if the land was owned by
the developer when the statute was passed.
Procedures for Applicants. The regulations allow applicants to follow the same procedures currently used under the
wetlands regulations. Requests for Determinations of Applicability may be made for the riverfront area, a Notice
of Intent must be filed for most proposed activities, and an Order of Conditions will describe the requirements for
work. A Request for Determination also may be filed to obtain in advance an identification of the scope of
alternatives to evaluate for proposed work in the riverfront area. The existing provisions in the regulations for
appeals, emergencies, enforcement, and variances apply to the riverfront area. Continuation of these familiar
procedures will benefit both applicants and conservation commissions.
The Department is also revising its application forms to improve their usefulness, and removing the forms
from the regulations to allow for periodic revisions. The Department will continue to provide forms required for use
by applicants. In addition, a new and optional procedure for applicants to obtain a confirmation of a bordering
vegetated wetlands delineation has been created, with a fee to support the review responsibilities incurred by issuing
authorities.
Fees. The Rivers Protection Act required the Department to establish fees for work within the riverfront area.
Although applicants are reluctant to incur application expenses associated with their projects, the availability of fees
enhances the capacity of conservation commissions to support professional staff, hire consultants, or engage other
assistance which can benefit applicants by reducing the potential for delays in the permitting process. The
Department set fees commensurate with the increased workload for projects within the riverfront area, while
recognizing some efficiency when work is already proposed for another resource area. To assist commissions with
the review of difficult projects, applicants also may finance the services of a mutually agreed upon consultant.
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Preface: continued
Appeals. The Department recently eliminated a backlog of wetlands adjudicatory hearing appeals by adopting
streamlined rules for administrative hearings, encouraging mediation, and emphasizing pre-trial settlement discussions.
In response to concern that a new appeals backlog might arise from the caseload under the Rivers Protection Act,
the Department has incorporated several innovations to reduce the number of appeals without jeopardizing due
process or environmental protection. Examples include the new guidance on the exercise of discretion for limited
projects, the exemption of some minor activities from review, and establishing that the Department can issue a
Superseding Order that simply affirms a local Order of Conditions. By taking steps to make the administration of
the Act less susceptible to appeals and by using its resources more efficiently, the Department can save applicants
from long delays and save taxpayers money. The Department is committed to allocating as many of its resources
as possible to training applicants, consultants, and commissions to promote fair and efficient implementation of the
new regulations.
Wetland Regulation: Preface Appendices – May 2008 15
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
NON-TEXT PAGE
Wetland Regulation: Preface Appendices – May 2008 16
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
PREFACE TO WETLANDS REGULATIONS RELATIVE
TO PROTECTION OF WILDLIFE HABITAT
1987 REGULATORY REVISIONS
I. INTRODUCTION
Under a recent amendment (St. 1986, c. 262) to the Wetlands Protection Act, M.G.L. c. 131,
§ 40, wildlife habitat is added to the interests protected by M.G.L. c. 131, § 40. Wildlife habitat is
defined in M.G.L. c. 131, § 40 to mean:
"those areas subject to (M.G.L. c. 131, § 40) which due to their plant community composition and
structure, hydrologic regime or other characteristics, provide important food, shelter, migratory or
overwintering areas, or breeding areas for wildlife."
Pursuant to the rulemaking authority set forth in M.G.L. c. 131, § 40, the Department of
Environmental Protection is promulgating additional regulations, after public comment, to protect this
additional interest.
II. THE RULEMAKING PROCESS
During the entire period that its proposed regulations were in preparation, the Department had the
benefit of advice and consultation from knowledgeable groups and individuals, most particularly
representatives from the development and environmental communities, as well as wildlife and wetland
scientists. Where consensus was attained and deemed consistent with the Department's responsibilities
under M.G.L. c. 131, § 40, the proposed regulations reflected it; in other instances, the Department
weighed conflicting points of view and chose a course of action that in its judgement best served both
the public interests identified in M.G.L. c. 131, § 40 and private property rights. The proposed
regulations were then subject to public comment at four Public Hearings held around the state, as well
as through extensive written submittals. These comments were carefully weighed by the Department
and, in many cases, incorporated into a revised version of the regulations. As required by M.G.L.
c. 131, § 40, these regulations were submitted to the Clerk of the Massachusetts House of
Representatives for forwarding to the Joint Committee on Natural Resources, 60 days prior to their
filing with the Secretary of State for final promulgation. The effective date of these regulations is
November 1, 1987.
To briefly summarize the lengthy process by which the regulations were prepared; in the 1986
amendment to M.G.L. c. 131, § 40, the Legislature mandated the establishment of a technical advisory
committee ("TAC") consisting of a university wildlife biologist; staff members from the Department of
Fisheries, Wildlife & Environmental Law Enforcement, Department of Public Works, and Office of
Coastal Zone Management; a member of the Massachusetts Homebuilders Association; a member of
the Massachusetts Association of Conservation Commissions; a member of the Massachusetts
Audubon Society; a member of the National Association of Industrial Office Parks, Boston Chapter;
and a general contractor, to advise and assist the Department in drafting proposed regulations.
Numerous meetings of the TAC were held to discuss key policy issues. In addition, a six person
Scientific Advisory Subcommittee was formed to identify the wildlife habitat characteristics and
functions of each wetland resource area, upon which scientific information the proposed regulations
were based. Many other scientists, consultants and individuals were contacted informally by the
Department during this time period for their advice and opinions.
The Department proposed regulatory revisions on May 5, 1987, and held three Informational
Meetings around the state to explain the draft regulations on May 12, 14 and 19; four Public Hearings
to receive public comment orally on May 26 and 28 and June 2 and 4; and accepted written comments
from the public on the proposed regulations until June 12, 1987. The regulations reflect the benefit of
these comments.
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10.00: continued
III. THE GENERAL APPROACH
The regulations are based on a number of important principles. The Department has attempted to
keep the regulations from being overly burdensome, complex or expensive for conservation
commissions and applicants, especially for small projects with minor effects on wildlife habitat. No new
fees are proposed in these regulations. The Department has also tried wherever possible to maintain
the existing regulatory structure, except where protection of wildlife habitat requires procedures which
are not needed to protect other interests alone. Most importantly, the regulations are based on the
definition of wildlife habitat contained in M.G.L. c. 131, § 40 (see "I. INTRODUCTION" to this
Preface).
Prior to enactment of the wildlife amendment to M.G.L. c. 131, § 40 by the Legislature, the
Department and most of the other interest groups which were party to the legislative debate agreed to
the "intent" of a "preamble", "explaining the effect of this amendment upon the Wetlands Protection
Act." Although not legally binding, the Department believes that this "preamble" represents an accurate
interpretation of the statutory language (especially the statutory definition of "wildlife habitat") as well
as the legislative intent. Consequently, the Department has drafted these regulations to be fully
consistent with this "preamble", which is quoted as follows in its entirety:
It is important to make clear what it means to have added the wildlife habitat interest as an eighth
interest in M.G.L. c. 131, § 40. It does not mean that the geographic jurisdiction of the
conservation commission or the DEP is increased. The resource areas that are protectable under
this statute stay the same, only the reasons for their protection are different by adding this wildlife
habitat value. In other words, this amendment does not make M.G.L. c. 131, § 40 a wildlife
habitat protection statute. It is still a wetlands protection statute. The presence of wildlife habitat
on upland (with no resource areas) does not give the conservation commission or the DEP power
to control the work therein not altering resource areas.
The addition of the wildlife habitat interest likewise does not change the work or activities that are
regulatable under the statute. There still must be dredging, filling, removing or altering of a resource
area to trigger jurisdiction of the conservation commission or DEP. In other words, the amendment
does not increase the scope of activities regulatable, but rather adds another reason for the
conservation commission or the DEP to ask for information about the work and set conditions.
The addition of the wildlife habitat interest also does not change the role or authority of the
conservation commission or the DEP in regard to work in the buffer zone. The applicant still has
his option to file either a Request for Determination (RFD) or full application (NOI) and the issuing
authority still has the task of deciding if the proposed work will alter resource areas. Commissions
still may issue negative determinations if satisfied that precautions in the project have been taken
so that there will be no alteration of resource areas. In other words, work in a wildlife habitat
found in the buffer zone (not altering resource areas) does not trigger jurisdiction to require a full
Notice of Intent.
The addition of the wildlife habitat interest does not mean that the mere presence of wildlife in a
resource area is enough to establish habitat value. An amendment to the bill during passage makes
clear that something else is necessary, namely the presence of a 'plant community composition and
structure, hydrologic regime, or other characteristic' providing significant features for wildlife. In
other words, the amendment does not mean that there is a wildlife habitat value to the resource
area just because some creatures have been seen there. Instead it is the presence of plant
community, hydrologic or other characteristics that is determinitive. The statute protects habitat
value not wildlife per se.
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10.00: continued
Furthermore, the presence of these characteristics establishing wildlife habitat does not mean that
it is automatic that every resource area is significant to wildlife habitat. The amendment to the bill
during passage makes it clear that the features present must be enough to 'provide important food,
shelter, migratory or overwintering areas, or breeding areas for wildlife.' In other words, the
definition of wildlife habitat sets a threshold for a resource area to be significant for wildlife habitat.
It must be significant for the particular reasons stated in the definition: food, shelter, migratory or
overwintering areas, or breeding areas.
Each point in this "preamble" is reflected in these regulations. The geographical jurisdiction of the
regulations is in no way increased beyond the resource areas as previously defined, despite the urging
of many individuals and organizations that the Department extend the regulations to cover all "vernal
pool" amphibian breeding areas, even those outside current resource areas. The regulations do not
change any rules regarding uplands or buffer zones, nor do they "increase the scope of activities
regulatable".
Most importantly, the regulations follows a strict interpretation of the statutory definition of "wildlife
habitat", consistent with the agreement expressed in the preamble. Unlike the other interests protected
under the M.G.L. c. 131, § 40, the term "wildlife habitat" is defined in the legislation. Wildlife habitat
means those resource areas which, due to certain physical characteristics, provide "important" wildlife
habitat functions (i.e., "important food, shelter, migratory or overwintering areas, or breeding areas for
wildlife"). Thus while resource areas are presumed to be significant to the protection of other interests
whenever they play a role in protecting the interest, a particular site must play a role in providing
important wildlife habitat functions, and must do so because of the presence of specific physical habitat
characteristics, in order to warrant a presumption of significance under the new wildlife regulations.
The regulations specify what these physical habitat characteristics are and what are (and are not)
to be considered "important" wildlife habitat functions in each resource area. This information is
reflected throughout the regulations: in the "Preamble", "Presumptions of Significance" and
"Performance Standard" contained in the regulations for each resource area, as well as in the special
provisions for "rare" wildlife species (310 CMR 10.37 and 10.59) and, for inland resource areas, in
310 CMR 10.60 "Wildlife Habitat Evaluations". The Department furthermore intends to amplify upon
the complex wildlife habitat characteristics and functions of resource areas through additional policy
guidances. It is only for specified habitat characteristics and the "important" wildlife habitat functions
they serve, that presumptions of significance and performance standards are to be applied. These
provisions reflect the following understanding of the statutory definition of wildlife habitat:
A. By limiting the definition of wildlife habitat to include only those areas which "due to (certain
physical) characteristics" provide "important" wildlife habitat functions, the Department believes the
Legislature meant to protect only those wildlife habitats which, though they may sometimes be present
elsewhere, are particularly prevalent and/or valuable in wetland resource areas. The scientific literature
indicates that virtually everything, except concrete, provides habitat for at least some wildlife species,
yet the Department does not believe it was the intention of the Legislature to protect lawns, cemetaries,
golf courses, landfills, or wildlife habitats which typify "upland" areas, just because they happen to be
located in wetland resource areas. Based on detailed scientific assessments of the wildlife habitats
found in each resource area, certain resource areas (or portions of resources areas) which are generally
lacking in special wetland wildlife habitat characteristics and functions, are not presumed in the
regulations to be significant to the protection of wildlife habitat. For those resource areas which are
presumed significant, only specified wildlife habitat characteristics and functions are protected.
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10.00: continued
B. By requiring the protection only of "important" wildlife habitat functions (rather than wildlife, per
se), the Department believes the Legislature did not intend for the Department to try to save every food
source, breeding site, etc. for each individual animal. Instead, the Department believes the Legislature
meant to protect wetland habitat which is important to wildlife from a regional or statewide perspective.
Therefore, the regulations allow alteration of small amounts of wildlife habitat in most resource areas.
For those portions of inland resource areas found to be significant to the protection of wildlife habitat
(except bordering vegetated wetlands), the regulations reflect the Department's conclusion that small,
one time alterations of up to 10% of the remaining wetland wildlife habitat on a given lot will not harm
"important" wildlife habitat functions, and that temporary disruptions of other wildlife habitat is
permissible so long as its important wildlife habitat functions are substantially restored or replicated.
Certain "water dependent" projects (which the Department believes will be relatively uncommon in
inland areas as compared to coastal areas) may also be allowed to proceed at the discretion of the
issuing authority under a reduced performance standard without major impacts on "important" wildlife
habitat functions of wetland resource areas in the Commonwealth. Because most "important" wildlife
habitat in coastal areas is more limited than that in inland areas, the Department has only set a reduced
performance standard in some coastal resource areas for "water-dependent projects", those uses and
facilities which require direct access to, or location in coastal waters and which therefore cannot be
located away from such waters. By requiring such projects to minimize adverse effects on wildlife
habitat, while allowing most other projects (no matter how small) to have no adverse effect, "important"
wildlife habitat functions of coastal resource areas will be adequately protected. However, because
wetland wildlife habitat of rare, officially "state-listed" species is always "important" in both coastal and
inland areas, the regulations permit no adverse effects whatsoever on this habitat.
Another alternative for protecting "important" wildlife habitat functions would have been to protect
only those specific sites which are of a "high" value for wildlife. The Department considered, but
ultimately rejected this alternative. Unfortunately, what is excellent habitat for one species is frequently
inadequate for another. For this and other reasons, scientists are currently incapable of setting
objective standards for rating the relative value to all wildlife (mammals, reptiles, birds, and amphibians)
of sites within most wetland resource areas. Furthermore, without a comprehensive survey of all
wetland wildlife habitat in the state (which would be prohibitively time-consuming and expensive), it
would be impossible to design a cut-off point for determining when a site is or is not of sufficiently high
value to be considered "important". Instead, the regulations generally require no adverse effects on all
the "important" wildlife habitat functions existing at each project site (except for certain small alterations
or specified project types in some resource areas). Those sites providing few valuable wildlife habitat
functions will simply have less to protect than sites that are rich in important wildlife habitat functions.
C. By not defining the term "wildlife", the Department feels the Legislature intended that no preference
be given to any particular wildlife species over any other . Consequently, the regulations protect
equally all mammals, birds, reptiles, and amphibians for which a resource area provides important
wildlife habitat functions. Fisheries (except for specified "rare" species) are not directly protected by
most of the regulatory revisions, because current regulations already contain provisions protecting
fisheries. Since the habitat needs of most invertebrates overlap those of vertebrate wildlife and
fisheries, the Department felt it was not necessary to set separate standards to protect invertebrates,
unless they are officially designated rare species in need of special protections. Furthermore, the goal
of protecting all wildlife species equally led the Department to promulgate regulations which, within
certain limits, require the maintenance of existing wildlife habitat characteristics and functions, rather
than allowing development projects to substitute habitat characteristics which, while perhaps helping
some species, could harm others.
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10.00: continued
IV. SUMMARY OF WILDLIFE REGULATIONS
A. Presumptions of Significance. A presumption is created that the following coastal resource areas
are significant to the protection of wildlife habitat: Land Under Water; Coastal Beaches; Coastal
Dunes; Barrier Beaches; Rocky Intertidal Shores; Salt Marshes; and Land Under Salt Ponds.
Presumptions of significance are also made for all inland resource areas, though only for portions of
Land Subject to Flooding. For Bordering Land Subject to Flooding, only those areas are presumed
significant which have not been extensively altered by human activity; furthermore, except for vernal
pool habitat (which is critical to certain amphibians), the presumption is limited to areas on the 10-year
floodplain or within 100 feet of the bank or bordering vegetated wetland (whichever is further from the
water body). Within isolated Land Subject to flooding, only vernal pool habitat is presumed significant
to the protection of wildlife habitat. Vernal pools are presumed to exist, however, only when certified
and mapped by the Massachusetts Division of Fisheries and Wildlife.
Like the presumptions of significance found in current regulations regarding other interests protected
by M.G.L. c. 131, § 40, presumptions regarding wildlife habitat are generalizations based on a generic
study of each resource area. (As noted above, however, unlike presumptions of significance regarding
other statutory interests, presumptions regarding wildlife are predicated on a statutory definition which
requires the presence of certain physical characteristics providing important wildlife habitat functions.)
The prima facie force of the presumption can be overcome by the introduction of sufficient evidence
to the contrary; that is, by a showing that the resource area in question functions atypically.
B. Performance Standards. For coastal resource areas, little or no change in performance standards
are made for Dunes, Salt Marshes or Land Under Salt Ponds. This is because existing standards for
fisheries and other interests protected by M.G.L. c. 131, § 40 are generally adequate to protect wildlife
habitat as well. Only minor changes are made in performance standards for water-dependent projects
on Land Under the Ocean, Coastal Beaches, Barrier Beaches, and Rocky Intertidal shores. New,
stricter performance standards, however, are set for non-water-dependent projects in these resource
areas. Such projects may have no adverse effects on specified wildlife habitat characteristics.
In addition, conservation commissions or the Department may allow maintenance, repair, and/or
improvement (but not substantial enlargement) of certain projects such as existing roadways, structures
and road drainage facilities in coastal resource areas, subject to whatever conditions are deemed
appropriate.
For all resource areas (coastal and inland), no project may have any adverse effect on the local
population of a rare, "state-listed" vertebrate or invertebrate animal species, where the project is
located within the habitat of such species. These habitats are only presumed to exist where mapped
by the Massachusetts Natural Heritage and Endangered Species Program. These areas make up only
a small percentage of the land subject to these regulations.
For inland resource areas, no changes in performance standards are made for bordering vegetated
wetlands (with the exception of special provisions for rare, state-listed species, described above),
because existing performance standards allow no large scale alteration of such wetlands, and even small
alterations (under 5,000 sq. ft.) must be replicated. For other inland resource areas, project size
"thresholds" of 10% of the wildlife habitat on each lot (with a maximum threshold on each lot of 50 feet
of Bank and 5,000 sq. ft. of Land Under Water and Land Subject to Flooding) are established, below
which projects are allowed without being considered to impair their capacity to provide important
wildlife habitat functions. Such thresholds do not apply to critical "vernal pool (amphibian) habitat" on
Land Subject to FLooding. Moreover, once this threshold of the wildlife habitat on a lot has been
altered
Wetland Regulation: Preface Appendices – May 2008 21
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after November 1, 1987, all future projects on that lot (no matter how small) must meet the same
performance standard as applies to larger (above-threshold) projects: no adverse effects on wildlife
habitat. This performance standard (which applies to inland Banks, Land under Water, and those
portions of Land Subject to Flooding found to be significant to the protection of wildlife habitat) forbids
alterations of specified habitat characteristics found at the site, insofar as such alterations will after two
(2) growing seasons substantially reduce the pre-project habitat value. Applicants must present
evidence from a wildlife biologist or similar professional that this standard will be met. Replication of
altered habitat off-site is permitted, but under a number of strict conditions.
Just as the regulations impose less stringent performance standards regarding protection of wildlife
habitat on "water-dependent" projects in coastal resource areas, the new inland regulations establish
a "limited project" status for water-dependent uses. As with other limited projects in inland resource
areas, the normal performance standards are suspended and the issuing authority may issue an Order
of Conditions along with "such conditions as will contribute to the interests identified in M.G.L. c. 131,
§ 40" for water-dependent uses. However, unlike other limited projects these uses remain subject to
the existing performance standards for bordering vegetated wetlands, flood control and storm damage
prevention, and they must minimize adverse impacts on other statutory interests for which each affected
resource area is found to be significant. This new limited project status was deemed necessary by the
Department in light of the significantly stronger performance standards being imposed on most larger
projects by the new wildlife habitat regulations.
V. ISSUES OF MAJOR CONCERN
Public comment on the Department's proposed lower wetlands/wildlife regulations was extensive.
While most commentators generally supported the proposed regulations, there were also many
suggested changes. The following represents a summary of the most common issues of major concern,
and the Department's response thereto as reflected in the final regulations:
A. Presumptions of Significance. There was some strenuous opposition to the establishment of
presumptions of significance regarding protection of wildlife habitat, based largely on the language of
the last paragraph of the "preamble" agreed to by numerous interest groups (as well as the Department)
prior to the legislative enactment of the wetlands/wildlife amendment in 1986. Although this paragraph
of the preamble does not explicitly state that the signatories agreed that the Department would not
extend its practice of the use of presumptions of significance to the new wildlife habitat interest, these
commentators argued that such a result was implied by the statement, "Furthermore, the presence of
these characteristics establishing wildlife habitat does not mean that it is automatic that every resource
area is significant to wildlife habitat."
The Department believes that a reading of the entire paragraph of the preamble makes it clear that
this language does not suggest that resource areas should not be presumed significant to the protection
of wildlife habitat, but only that presumptions must be based strictly on the presence of certain physical
habitat characteristics providing specified "important" wildlife habitat functions in each resource area:
Furthermore, the presence of these characteristics establishing wildlife habitat does not mean that
it is automatic that every resource area is significant to wildlife habitat. The amendment to the bill
during passage makes it clear that the features present must be enough to 'provide important food,
shelter, migratory or overwintering areas, or breeding areas for wildlife.' In other words, the
definition of wildlife habitat sets a threshold for a resource area to be significant for the
particular reasons stated in the definition: food, shelter, migratory or overwintering areas,
or breeding areas. (emphasis added)
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As noted in detail above, this is exactly what the Department has done in creating the presumptions
contained in these regulations and certain thresholds below which wildlife habitat functions are
irrebuttably deemed not to be important (with the exception of rare species habitat). As with
presumptions of significance regrading all other statutory interests, the presumption for wildlife habitat
is based on scientifically supported generalities regarding each resource area, and may be overcome
by clear evidence that a specific project site acts atypically.
B. Expansion of Jurisdiction. Certain parties suggested that the proposed regulations expanded the
jurisdiction of the regulations by adding what can be strict new performance standards to certain
resource areas which had previously been subject to less strict standards. The Department disagrees.
Adding a new interest to be protected under M.G.L. c. 131, § 40 clearly requires new performance
standards in some resource areas, but in no case has the Department changed the definition or
boundaries of any resource area as previously defined, nor has it changed any rules pertaining to the
buffer zone or uplands. Furthermore, although there were a very large number of comments asking the
Department to protect small, upland vernal pools, the Department has consistently rejected this
suggestion on the basis that such an action would expand the geographic jurisdiction of conservation
commissions and the Department, in contradiction to the intention of most parties supporting the
wetlands/wildlife amendment and the Legislature itself.
C. Vernal Pools. On the issue of vernal pools, the Department received two groups of comments.
As noted directly above, many individuals and organizations pressed the Department to protect all
vernal pools, including those outside currently defined wetland resource areas, but this was rejected
as an unauthorized expansion of jurisdiction. Many parties, including the Department's own regional
staff, noted that because they are often very small in size and usually temporary in nature, the proposed
regulatory language on identifying vernal pools would lead to innumerable, frequently insoluable
disputes over the presence of such habitats on Land Subject to Flooding. After extensive research on
vernal pool identification techniques, the Department concluded that it would be unfair to applicants
to retain proposed requirements that could force them to conduct difficult, timely, expensive and often
inconclusive searches for possible vernal pools. Instead, the final regulations create a presumption that
vernal pools are present only when mapped, where such maps have been certified by the Division of
Fisheries and Wildlife. That Division has agreed to establish such a certification program, which will
require evidence of the breeding of amphibian species that need vernal pools. Finally, scientific
evidence was presented to the Department that areas immediately surrounding vernal pools generally
serve all the important nonbreeding habitat functions of amphibians which require vernal pools for
breeding. Consequently, the regulations contain performance standards protecting the area within 100
feet of the boundaries of vernal pools.
D. Floodplains. Perhaps the most controversial provisions in the proposed regulations were those
protecting floodplains (Bordering Land Subject to Flooding). On the one hand, there were many
comments urging the Department to protect all wildlife habitats (including fields) throughout the 100
year floodplain, except for those portions altered by human activity. On the other hand, others
suggested that the Department has no basis for proposing to presume that woodlands (or other defined
areas) on the entire 100-year floodplain were significant to the protection of "important" wildlife habitat
functions. The Department recognized some merit in each of these contentions, and incorporated
aspects of both in the final regulations.
As noted above, presumptions of significance are based on scientifically grounded generalizations
on how resource areas typically function; however, regarding protection of wildlife habitat, they are also
limited to those wetland habitats which, due to certain physical characteristics, provide "important"
functions for wildlife (i.e., those "special" qualities which, though they may be present in uplands, are
particularly prevalent or valuable in wetland resource
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10.00: continued
areas). The Preamble describing important wildlife habitat functions of floodplains in 310 CMR
10.57(1)(a)(3) indicates that these functions stem from five major factors: frequent flooding, close
proximity to water bodies, moistness of soils, the vegetative corridor which aids movement of wildlife
to and from as well as along water bodies, and the "edge" effect which causes wildlife to thrive in the
area where two different habitat types meet (e.g., where water bodies or bordering vegetated wetlands
meet other habitat). Such habitat clearly is not limited to woodlands, but rather extends to fields and
other areas which have not been so altered by human activities as to effectively eliminate their special
wetland habitat value. The final regulations reflect this principle. It is also true that the five key factors
which provide "important" wetland wildlife habitat functions are generally much more prevalent on the
lower floodplain (that closest to the water body) than the upper floodplain. Indeed, as one moves
away from the water body and bordering vegetated wetland into the infrequently flooded areas of the
100-year floodplain, the habitat becomes increasingly indistinguishable in its vegetative and hydrologic
characteristics from upland areas.
Therefore, in the final regulations the Department determined that a presumption of significance for
wildlife habitat was warranted only for the lower floodplain (except for vernal pools, which are clearly
essential for certain amphibians wherever they appear on the floodplain). The lower floodplain is
defined as areas on the 10 year floodplain or within 100 feet of the bank or bordering vegetated
wetland, whichever is further from the water body or waterway. "Important" floodplain habitat on the
upper floodplain may also be protected on a case by case basis where evidence of its existence has
been demonstrated, though this area is not presumed to be significant to the protection of wildlife
habitat.
E. Thresholds. The Department proposed the creation of project size thresholds for three resource
areas (inland Banks, Land Under Water, and Land Subject to Flooding) below which alterations are
not deemed to have an adverse effect on the protection of important wildlife habitat functions. Though
there were objections to this concept, the Department found, as explained in detail above, that use of
thresholds is the most scientifically valid and least complex method of protecting "important" wildlife
habitat in these resource areas, while allowing small, unimportant alterations (i.e., unimportant from a
regional or statewide prospective). Many commentators expressed concern that although the proposed
threshold alterations may appear small individually, repeated undertakings of threshold projects on the
same property could cause large cumulative impacts on wildlife habitat. In response to these
comments, the Department has added a provision insuring that such small alterations will not be
allowed, cumulatively, to have a major impact on important wildlife habitat functions. The thresholds
may only be applied once per lot after the effective date of the wildlife regulations. This rule regarding
cumulative impacts applies only to the protection of wildlife habitat on inland Banks, Land Under Water
and Land Subject to Flooding. The Department takes no position at this time as to whether this is the
appropriate method of addressing cumulative impact issues regarding limited projects or performance
standards in effect prior to the promulgation of the new regulations protecting wildlife habitat. There
were also numerous comments that the proposed thresholds were too small to allow for certain
projects which must necessarily be located on or near water -- for example bridges, marinas,
wastewater treatment plants, etc. Rather than raising the thresholds for all projects, however, the final
regulations take cognizance of these water-dependent uses by creating a new "limited" project category
for such uses (except those in bordering vegetated wetlands) with their own performance standards.
To balance the net effect on important wildlife habitat functions, we have tightened the thresholds for
non-water-dependent uses on inland resource areas (except bordering vegetated wetlands) to no more
than 10% of those portions of an owner's lot found to be significant to the protection of wildlife habitat
(the maximum limits of 50 linear feet of Bank and 5,000 sq. ft. of Land Under Water or Land Subject
to Flooding, contained in the proposed regulations, were retained in the final regulations).
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F. Rare Species. Most commentators strongly supported protection for rare species, but a number
of technical changes were suggested and incorporated into the final regulations. Applicants with
proposed projects on "Estimated Habitat Maps" may, if they wish, contact the Natural Heritage and
Endangered Species program 90 days before filing their Notice of Intent and receive a response within
45 days, so as to facilitate project designs which will meet rare species performance standards. In all
cases, the Heritage Program will have at least 30 days to respond to notification that a proposed
project is on the Estimated Habitat map, and no Order of Conditions may be issued before that time.
G. Wildlife Habitat Evaluations. A number of commentators found Section 10.60 (which sets
standards for determining whether "above threshold" projects on inland Banks, Land Under Water,
or Bordering Land Subject to Flooding will adversely effect wildlife habitat) to be confusing. The final
regulations, we believe, are clearer. The basic standard for determining adverse effects is whether the
project would substantially reduce specified important wildlife habitat functions. Standards for
restoration and replication of wildlife habitat were also clarified. Although there were some comments
in opposition to allowing off-site replication, we believe that the performance standards for replication
are sufficiently stringent to protect wildlife habitat, especially since off-site replication above 5,000 sq.
ft. of bordering vegetated wetlands (the most valuable wildlife habitat) remains prohibited under the
stringent performance standards contained in the present regulations. Furthermore, an Order of
Conditions may require that replicated habitat in fact meets the standard of no substantial reduction in
habitat value for an indefinite period in the future, so that further efforts can be required if initial
replication is unsuccessful.
Wetland Regulation: Preface Appendices – May 2008 25
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
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PREFACE TO WETLANDS REGULATIONS RELATIVE
TO RIGHTS OF WAY MANAGEMENT
1987 REGULATORY REVISION
In 1983, the Massachusetts Pesticide Control Act, M.G.L. c. 132B, was amended to require
notification of conservation commissions prior to application of herbicides on rights of way. Many
commissions became aware for the first time that application of herbicides on rights of way may result
in alteration of wetlands and, with the exception of exempt utilities, may require action under the
M.G.L. c. 131, § 40. On July 18, 1986, the Department issued a final decision after adjudicatory
hearing in DEP Hearing Docket Nos. 83-28 and 83-35 (Clinton and Leverett) finding that the
application of specific herbicides by the railroads to track and ballast within 100 feet of wetland areas
would alter those wetlands and was therefore subject to jurisdiction under M.G.L. c. 131, § 40,
requiring the filing of Notices of Intent with the local conservation commissions.
The Department of Food and Agriculture (DFA) initiated a Generic Environmental Impact Report
(GEIR) evaluating alternatives for rights of way management. A technical advisory task force of
environmentalists, agencies and rights of way managers assisted in the GEIR preparation and, based
on results of the study, recommended to the Secretary of Environmental Affairs a framework for a
coherent state-wide rights of way regulatory program. DFA published draft regulations to implement
this program in 1986 and received extensive public commentary. Final regulations, 333 CMR 11.00,
became effective on July 10, 1987.
The DFA regulations require persons proposing to apply herbicides to rights of way to first receive
approval of a five year Vegetation Management Plan (VMP) and Yearly Operating Plan (YOP).
These regulations identify certain "sensitive areas", including wetlands and public and private surface
and groundwater supplies, where the application of herbicides is, in most instances, prohibited, and
areas adjacent to the sensitive areas where use of herbicides is curtailed.
DEP worked closely with DFA to include provisions which give maximum protection for water
supplies and provide protection for wetlands at least equal to that provided under the M.G.L. c. 131,
§ 40 and 310 CMR 10.00. To eliminate duplicate review under M.G.L. c. 131, § 40, DEP has
adopted changes to the wetlands regulations which allow herbicide applications on rights of way in
accordance with the DFA regulations without filing a Notice of Intent under the M.G.L. c. 131, § 40.
However, non-exempt applicants will still be required to file a Request for Determination of
Applicability to the appropriate conservation commission to establish boundaries of wetlands on or near
the right of way. Specifically, these regulations presume that work performed in accordance with a
VMP and YOP, as may be required under DFA regulations, will not alter an area subject to protection
under M.G.L. c. 131, § 40.
During the public comment period on its proposed regulations, the Department identified several
issues of major concern. After consideration of all comments, the Department has determined that,
except for minor points of clarification and the addition of an automatic expiration date, no further
changes in the regulations are warranted at this time. A discussion of these issues follows.
A. Presumption vs. Limited Project. Several commentators suggested that conservation commissions
should retain the authority to review each herbicide application on rights of way through the usual
Notice of Intent process. These regulations create a presumption that herbicide application carried out
in accordance with an approved VMP and YOP under the DFA regulations will not alter wetlands and
that the filing of a Notice of Intent is therefore not required. This procedure was established pursuant
to the recommendation of the GEIR task force which states:
Wetland Regulation: Preface Appendices – May 2008 26
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
The regulations which provide for approval of Vegetation Management Plans by the Department of Food and Agriculture should be conditioned on review and approval by the Department of
Environmental Protection (DEP) of those portions of the Plans that deal with wetlands. The DEP
should be required to certify to the DFA that these portions of the Plans will result in compliance with
the substantive and procedural provisions which protect the interests of the M.G.L. c. 131, § 40. If the regulations are so drawn, activities under a Plan approved by DEP would not constitute an
alteration of wetlands as defined under 310 CMR 10.00.
Since the DFA regulations provide that DEP is a member of the VMP advisory panel which
reviews and makes recommendations on the approval of VMPs, the GEIR task force
recommendations have been fully implemented. Therefore, the Department has determined that it would be duplicative to require the filing of individual Notices of Intent in each municipality for each application of herbicides to rights of way.
B. Adequacy of Setback from Wetlands. The DFA rights of way regulations prohibit application of
herbicides on or within ten feet of wetlands and strictly limit herbicide application from ten feet to 100
feet of wetlands. Many commentators questioned the adequacy of these setback requirements and suggested that a 50 or 100 foot no spray zone would be more appropriate. Several commentators
suggested that the proposed setback requirements were inconsistent with the Department's
adjudicatory hearing decision in the Clinton and Leverett cases.
The no spray zone surrounding wetlands is necessary for three reasons: to compensate for mapping errors, to compensate for applicator errors and to assure that herbicides will not migrate into wetlands after application on the adjacent uplands. During the public comment period, the Department
received no evidence demonstrating that the ten-foot setback established in the DFA regulations will
not be adequate. The DFA regulations establish a procedure for selecting a limited number of
herbicides that may be applied in the limited spray zone (from 10 to 100 feet from wetlands) which is adjacent to the no spray zone. Herbicides that will be selected for use in these limited spray zones
under the DFA regulations are those which available data demonstrate will not migrate further than ten
feet.
The applicators have argued that they can maintain a level of accuracy in mapping of wetlands and
in application of herbicides to assure that herbicides will not be inadvertently applied within ten feet of
wetland areas. The Department is not convinced that these claims are unreasonable; however, in order to confirm their accuracy, the Department has included in the final regulations an automatic expiration
date two years from the effective date, which is coterminous with the expiration date of the DFA
regulations. During the two-year effective period of these regulations, the Department expects
applicators to conduct studies monitoring herbicide application operations and to submit a report concerning impacts of herbicide application on wetlands under these new regulations detailing the accuracy of wetlands mapping, the accuracy of herbicide application, and the extent of herbicide
migration. The results of this study will provide a basis for recommendations by the Department for
amendments to the DFA regulations and a decision on reauthorization of these amendments to the
Department's wetland regulations.
Finally, the Department does not find the setbacks requirements established in the DFA regulations to be inconsistent with its decision in the Clinton and Leverett cases. In that decision, the Department assumed a worst-case analysis in terms of an herbicide known to be highly mobile which was applied
to the track and ballast areas adjacent to wetlands. The Department found, based on the particular
facts of these cases and the particular herbicide proposed for application that there would be a
migration of that herbicide into the wetlands from application within the 100-foot buffer zone that would be sufficiently concentrated to cause alterations of the wetlands plants. However, the DFA
rights of way management regulations set up a procedure for identification of herbicides which are
relatively immobile and which are preapproved for application on the buffer zone in order to avoid
alteration of wetlands plants. Furthermore, guidelines for application of the selected herbicides will also be established. Finally, no herbicides may be applied within ten feet of
12/20/02 310 CMR – 451
Wetland Regulation: Preface Appendices – May 2008 27
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10.00: continued
wetland areas. In light of the strict controls placed on application of herbicides within the 100-foot buffer zone under the DFA regulations, the Department finds that adoptions of the proposed regulatory
scheme is fully consistent with its previous adjudicatory hearing decision in the Clinton and Leverett
cases.
C. Impacts of Herbicides Application on Wildlife Habitat. The Department is currently developing regulations under M.G.L. c. 131, § 40 to protect wildlife habitat. The effective date of these
regulations is November 1, 1987. One commentator expressed concern regarding the impact of
herbicide application on wildlife habitat in wetlands, and particularly on the habitat of rare, "state-listed"
wildlife species. As discussed above, the Department has determined that the DFA regulations provide for protection of wetlands from alterations due to herbicide application. However, the 0FA regulations do not include floodplains in their definition of wetlands, although those regulations do prohibit herbicide
application within 10 feet of any standing or flowing surface water. Beyond that, there is no specific
protection of wildlife habitat, including rare species, in floodplain areas.
The Department is concerned that the DFA regulations do not specifically address protection of wildlife habitat in floodplains, in particular those rare, "state-listed" wildlife species. Therefore, as a
member of the VMP advisory panel, the Department will review VMPs for potential effect on wildlife
habitat and specifically will recommend disapproval of any VMP that will have an adverse effect in
areas mapped by the Natural Heritage and Endangered Species Program as habitat of any rare, "state-listed" wildlife species. Furthermore, the Department expects applicators to incorporate into the previously discussed two-year monitoring study a section detailing the effects of herbicide application
on wildlife habitat in floodplains and on the habitat of rare, "state-listed" wildlife species. The
Department will use the results of this study as the basis for recommending any amendments to the
DFA regulations and a decision on reauthorization of these amendments to the Department's wetlands regulations.
Wetland Regulation: Preface Appendices – May 2008 28
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PREFACE TO THE WETLANDS REGULATIONS
1983 REGULATORY REVISIONS
I. INTRODUCTION
Under the provisions of the Wetlands Protection Act, M.G.L. c. 131, § 40 ("M.G.L. c. 131,
§ 40"), no person may remove, fill, dredge or alter certain resource areas without first filing a Notice
of Intent and obtaining an Order of Conditions. The Act requires that any order so issued must contain
conditions sufficient to preserve and promote the following public interests: the protection of public or
private water supply and groundwater supply, the enhancement of flood control and storm damage
prevention, the prevention of pollution and the protection of fisheries and land containing shellfish.
Pursuant to the rulemaking authority set forth in M.G.L. c. 131, § 40, the Department of
Environmental Protection first adopted wetlands regulations in 1974, amending them in 1977 and again
in 1978. After extensive review, the Department is now issuing a comprehensive revision of its
Wetlands Regulations, 310 CMR 10.00. Not only has Part I, Regulations for all Wetlands, been
completely rewritten, but a new Part III has been added: Additional Regulations for Inland Wetlands,
310 CMR 10.51 et seq. Other than minor changes in format, however, no revisions have been made
to Part II, Additional Regulations for Coastal Wetlands, 310 CMR 10.21 et seq. In the Department's
judgment, the Part II regulations have worked well, so much so that their salient elements - e.g., the
use of presumptions of significance and performance standards - have been incorporated in Part III.
II. THE RULEMAKING PROCESS
During the entire period that its regulations were in preparation, the Department had the benefit of
advice and consultation from knowledgeable groups and individuals, most particularly representatives
from the development and environmental communities, civil engineers and wetlands scientists. Where
consensus was attained and deemed consistent with the Department's responsibilities under M.G.L.
c. 131, § 40, the regulations reflect it; in other instances, the Department weighed conflicting points of
view and chose a course of action that in its judgment best served both the interests identified in M.G.L.
c. 131, § 40 and private property rights.
To briefly summarize the lengthy process by which these regulations were prepared; during a large
part of 1979 a special task force comprised of representatives of the environmental groups, the
developers, general contractors, utilities, the Greater Boston Chamber of Commerce, land use
consultants, the Executive Office of Communities and Development, the Attorney General's Office and
the Department met on a regular basis and ultimately produced a working set of draft regulations, much
of which is incorporated in the regulations now being promulgated. Certain issues remained
unresolved, however, and in the Fall of 1980 a smaller group was formed to assist the Department in
preparing its public hearing draft. This group -- which consisted of a wetlands scientist from the
University of Massachusetts, a civil engineer with extensive wetlands experience, an environmental
attorney, the general counsel for the Home Builder's Association of Massachusetts, a senior
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10.00: continued
staff member from the Department's Division of Wetlands Protection and the Division's Director -- met
on a number of occasions to discuss the remaining issues and to provide the Department with the points
of view of the various constituencies represented.1
On May 25, 1981, the Department issued its proposed regulations for public comment. Public
information meetings were held throughout the state during the first two weeks of June, and were
closely followed by public hearings. In addition to testimony taken during the hearings, the Department2
received and reviewed 142 letters containing approximately 900 separate comments on various aspects
of the proposed regulations.
To assist the Department in weighing these comments, in resolving the remaining scientific and
engineering issues and in preparing its final draft, a Wetlands Technical Review Group was established,
consisting of representatives from the Division of Wetlands Protection, the Division of Fish and Wildlife,
the Division of Water Pollution Control, the Department's Metro-Boston/Northeast Region, the Office
of Coastal Zone Management, the University of Massachusetts and a number of engineering consulting
firms. Another advisory group was created to assist the Department in making final revisions to the
many forms required for administration of M.G.L. c. 131, § 40, forms that are now set forth at 310
CMR 10.99. Finally, in an effort to more accurately assess the impact of the new regulations on
development in Massachusetts, the Division of Wetlands Protection and the MEPA unit of the
Executive Office of Environmental Affairs jointly reviewed all Environmental Notification Forms filed
between October 1, 1980 and September 21, 1981, establishing the precise extent to which the
projects involved would experience greater or lesser regulatory control under the new regulations.
III. THE GENERAL APPROACH
Above all, the regulations are intended to put an end to the confusing, inconsistent and sometimes
unnecessary regulatory practices that have attended administration of M.G.L. c. 131, § 40 in the past,
especially with respect to the issue of jurisdiction. At one extreme, it has been argued by those
espousing a very restrictive interpretation of M.G.L. c. 131, § 40 that jurisdiction is limited to only
those activities that are undertaken within the boundaries of the areas specified in M.G.L. c. 131, § 40.
This is erroneous, in the Department's view, for a close reading of M.G.L. c. 131, § 40 indicates that
regulation extends not only to such activities but to all work, regardless of where it is located, that has
the demonstrable effect of removing, filling, dredging or altering an area subject to protection under
M.G.L. c. 131, § 40.
In addition, throughout the entire rulemaking process successive drafts of the regulations were1
distributed to a broad range of agencies, groups and individuals for their comment. Input was sought
and received from the Executive Office of Communities and Development, the Department of
Environmental Management, the Department of Public Works, the Department of Agriculture, the
Massachusetts Coastal Zone Management Office, the MEPA unit of the Executive Office of
Environmental Affairs, the Joint Committee on Natural Resources and Agriculture, the Governor's
Development Office, the Greater Boston Chamber of Commerce, the Home Builders Association of
Massachusetts, Associated General Contractors of Massachusetts, Construction Industries of
Massachusetts, New England Power Company, Boston Edison Company, New England Legal
Foundation, Massachusetts Association of Professional Foresters, Massachusetts Association of
Conservation Commissions, Massachusetts Forests and Parks Association/Environmental Lobby of
Massachusetts, Massachusetts Audubon Society, the Conservation Law Foundation of New England
and a number of private engineering and land use consulting firms. The Department is grateful for the
time and effort expended by these groups, and to a significant extent the proposed regulations reflect
their insights, expertise and sound counsel.
Public information meetings were held in Lakeville (June 2, 1981), Holyoke (June 3, 1981),2
Worcester (June 8, 1981) and Lexington (June 17, 1981). Public hearings were held in Lakeville (June
17, 1981), Holyoke (June 18, 1981), Worcester (June 22, 1981) and Boston (June 23, 1981).
Wetland Regulation: Preface Appendices – May 2008 30
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At the other extreme, it has been the Department's experience that considerable upland acreage
has been unnecessarily regulated by local conservation commissions on the basis of highly questionable
assumptions with respect to the anticipated impact of a proposed project on a protected area located
some distance away. Some projects have been subject to regulation in their entirety, even though only
a portion of the proposed work is adjacent to a wetland or adjacent to land subject to flooding.
Similarly, entire projects have on occasion been subject to unnecessary and costly delay because a
portion of the site is adjacent to a wetland, even though no actual work is proposed within 100 feet of
that area. Finally, in some instances projects have been regulated even though no part of the site is in
or even adjacent to an area subject to protection under M.G.L. c. 131, § 40.
In short, under current regulatory practices a substantial amount of the upland acreage still available
for development in the Commonwealth is subject to preconstruction review of doubtful legal and
practical validity. It is the Department's view that in the vast majority of cases it is unnecessary to3
regulate projects outside land subject to flooding and beyond 100 feet from freshwater wetlands
bordering water bodies, provided that the wetlands themselves are left intact in order to attenuate
project impacts.
It is also the Department's view that while engineering solutions can protect the statutory interests
at stake in most projects located in or near banks, floodplains and land under waterways and water
bodies, this is not the case with bordering freshwater wetlands. The complex natural functioning of
these wetlands cannot be replicated, and no amount of engineering will enable such areas to be filled
or substantially altered without seriously impairing the statutory interests they serve. The regulations4
now promulgated reflect both this conclusion and the Department's concern with overregulation of
uplands; while placing strict limits on those areas to be subject to preconstruction review, the
regulations substantially increase the protection to be provided them.
Thus for the development community the most troublesome aspect of the regulations has been that
in a majority of cases major alterations of freshwater wetlands bordering on water bodies would be
greatly restricted or prohibited. According to the U.S. Soil Conservation Service estimates, however,
these areas represent only 4.36 percent of the total land and water area of the state, or approximately
352,975 acres. A large portion of this area is already unbuildable because it is in public or quasi-public
ownership for open space purposes, because natural limitations such as the depth of organic soils5
make building impractical or6
The Department estimates that as much as 10,000 acres of upland may be unnecessarily regulated each year.3
In issuing its proposed regulations for public comment, the Department specifically requested interested parties4
to comment on this position and on a suggested alternative that would leave the issuing authority with discretion
to set conditions for work in bordering vegetated wetlands. Nothing was submitted in response or emerged
in the course of further review of the question to alter the Department's original conclusion that there is no
technical basis for conditioning work in bordering vegetated wetlands. See Section V.C., however, for a
discussion of certain limited alterations of these wetlands that the Department has concluded can be carried out
without impairment of their function.
The United States Soil Conservation Service estimates that approximately 60,000 acres of the freshwater5
wetlands in Massachusetts are in public or quasi-public ownership.
According to soil studies done by the U.S. Soil Conservation Service, three percent of the total land and6
water area of Massachusetts is freshwater wetlands underlain by highly compressable organic materials (peat,
muck, and shallow and deep marsh). Thus approximately 242,882 acres or 68.81 percent of the
Commonwealth's bordering freshwater wetlands is already greatly limited if not unavailable for development.
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because existing local and federal laws already restrict building in these areas. On the other hand, as7
previously indicated the development community gains a significant decrease in regulation of adjacent
uplands, along with a substantial increase in the clarity, certainty and consistency of decision-making.
For the environmental community, the most troublesome aspect of the regulations has been the fact
that there would be a significant loss of control over work proposed in adjacent uplands. What the
environmental community and the general public gain, on the other hand, is that under the revised
regulations freshwater wetlands which border water bodies remain substantially intact. Jurisdiction
continues to be asserted over work proposed within 100 feet of bordering wetlands when it appears
that such work will alter the wetland. Beyond that distance, however, and beyond the boundary of land
subject to flooding, preconstruction review is not required because the Department has determined it
to be unlikely that the work will cause impacts that cannot be sufficiently attenuated by the wetland
system itself.
IV. SUMMARY OF THE REGULATIONS
The promulgated regulations, in many of their particulars, represent a departure from existing
standards and procedures. In other respects, these regulations codify for the first time administrative
practices that over the years have evolved in the course of the regulatory work performed by the
Department's wetlands staff and local conservation commissions. As noted above, these regulations
are intended above all to promote clarity, certainty and consistency in decision-making, both on the
local level and on appeal to the Department. Accordingly, the regulations address with great specificity
the three major issues that in the Department's experience are at the heart of much of the past
regulatory confusion: the question of jurisdiction, the question of a resource area's significance and the
question of the extent to which work is to be conditioned (i.e., the performance standards to be
applied).
A. Jurisdiction
In the past, a major item of concern for developers, home builders and private property owners
has been the fact that the wetlands regulations did not provide clear and workable guidance as to just
what areas were subject to regulation. As a result, jurisdiction has been asserted inconsistently by local
conservation commissions, and on occasion in excess of their statutory mandate; indeed, the
Governor's Commission to Simplify Rules and Regulations has identified this issue as a major target for
regulatory reform.8
Examples include local zoning and non-zoning wetlands by-laws, local flood plain zoning, the U.S.7
Army Corps of Engineers "404" permit program and the Federal Emergency Management Agency's
("FEMA") flood insurance program. FEMA estimates that over 40,000 acres in Massachusetts are
in the floodway, much of which is wetland. No development is permitted in the floodway that will
increase flood levels during the 100-year flood, a requirement that in most cases amounts to a
prohibition on building.
See Report of the Governor's Commission to Simplify Rules and Regulations Recommendation No.8
11: "Quantitative thresholds for delimiting significant wetlands subject to the law must be incorporated
into the regulations." The Commission goes on to recommend (1) that regulated wetlands should
contain at least 50 percent or more of indigenous wetlands plants, a limitation that the Department
concurs in and has incorporated in its regulations at 310 CMR 10.55(2)(c), and (2) that minimum or
lower level thresholds be established for the water bodies specified in M.G.L. c. 131, § 40, thresholds
that now can be found in the revised regulations in both the definitions section, 310 CMR 10.04, and
in Part III.
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Accordingly, the new promulgated regulations clarify jurisdiction by providing explicit definitions
and boundaries for each of the resource areas identified in M.G.L. c. 131, § 40; as M.G.L. c. 131,
§ 40 requires, work within these areas cannot go forward without the filing of a Notice of Intent and
the issuance of an Order of Conditions. In addition, because it is the Department's judgment that work
undertaken within 100 feet of bordering vegetated wetlands has a very high likelihood of adversely
affecting those ecologically sensitive areas, the regulations require that anyone contemplating such work
must file a Request for a Determination of Applicability with the conservation commission in order to
insure that prior to commencement of the work an informed and public decision will be made as to
possible impacts. Finally, the regulations make clear that work outside the resource areas and outside9
the 100-foot buffer zone surrounding bordering vegetated wetlands can proceed without
preconstruction review; jurisdiction over such work can be asserted only upon a showing that it has
actually altered a resource area.
B. Significance
Clearly defining the resource areas and their boundaries, of course, is but the first step; regulation
of work within such areas can be justified only if the area contributes in some significant way to the
interests identified in M.G.L. c. 131, § 40. In order to guide conservation commissions in making this
determination, the Department has studied each of the resource areas generically, and has developed
presumptions of significance for each. These presumptions can be overcome by a showing that the10
resource area in question functions atypically; their role in the regulatory process is only to provide a
formal statement of value and to serve as a device by which decision-making, especially on the local
level, can be influenced so as to insure that each resource area is accorded its proper ecological value,
no more or no less. The use and derivation of these presumptions of significance are discussed further
in Section V of this Preface.
C. Performance Standards
Finally, general performance standards have been developed for each of the resource areas,
standards that are to be utilized by the conservation commissions and Department staff in drafting
orders of conditions once an area has been determined significant to one or more of the interests set
forth in M.G.L. c. 131, § 40. In general, the standards are intended (1) to maintain the channel
carrying capacity of banks and land under waterways and water bodies, (2) to preserve the flood
storage capacity of floodplains and (3) to prevent major alterations of core bordering vegetated
wetlands (i.e., the portion of those wetlands bordering waterways and water bodies within which
wetlands vegetation clearly predominates).
The buffer zone concept has been used by conservation commissions and the Department's wetlands9
staff for years; its inclusion in the regulations is therefore no more than a codification of past practices.
As the regulations make clear, however, jurisdiction does not automatically extend outward 100 feet
from the edge of a bordering vegetated wetland; although some conservation commissions have taken
this position in the past, there is nothing in M.G.L. c. 131, § 40 to support it. Ultimately, the buffer
zone filing requirement is only a device by which local conservation commissions can be informed of
work which in the Department's experience is sufficiently close to vegetated wetlands to pose significant
potential for adverse impact. A notice of intent may be required for such work, but only after a
determination has been made that the work will alter the neighboring wetland. For a further discussion
of this issue, see Section V.A. of this Preface.
Land subject to flooding, for example, has been found to be significant to flood control and storm10
damage prevention. See 310 CMR 10.57(1)(a) and 10.57(1)(b). Bordering vegetated wetlands, on
the other hand, have been found significant to all of the interest identified in M.G.L. c. 131, § 40. See
310 CMR 10.55(1).
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V. ISSUES OF MAJOR CONCERN
In soliciting public comment on its proposed regulations, the Department identified a number of
issues that were of particular concern and that had generated the most debate during its deliberations
and preparation of earlier drafts. After consideration of all comments and extended consultation with
the Technical Review Group, final regulations have now been prepared and promulgated. For some
of these major issues, significant changes have been made; for others, the Department found no reason
to alter its original position. A discussion of each of these issues follows.
A. Regulation of Work Within the 100-Foot Buffer Zone
It has been the Department's experience that any project undertaken in close proximity to a
wetlands resource area has a high likelihood of resulting in some alteration of that area, either
immediately, as a consequence of daily operation of the completed project. The problem becomes
particularly acute where bordering vegetated wetlands are involved; inadvertent damage to these
sensitive areas can easily occur and in many instances is irreparable. Accordingly, the adopted
regulations require that any person intending to perform work within 100 feet of a bordering vegetated
wetland must submit a Request for a Determination of Applicability to the local conservation
commission. In this way the commission has an opportunity to review the proposed project and to11
determine whether any alteration of the neighboring wetland will occur. If such a determination is
made, then the project will require the filing of a Notice of Intent, just as if it were proposed for inside
the wetland itself.
Of course, anyone contemplating a project within 100 feet of a bordering vegetated wetland can
forego this preliminary determination by simply filing a Notice of Intent, an option that may be
appropriate in those cases where it is obvious that the proposed work will indeed have an impact on
the wetland. Equally, where the applicant proposes to take appropriate engineering measures to
prevent impact on a neighboring wetland (and fully documents such measures in the Request for
Determination of Applicability) there is no legitimate basis for requiring a Notice of Intent.
The proposed regulations called for the filing of a Notice of Intent whenever a conservation
commission determined that work within a buffer zone would be "likely to alter" a neighboring wetland.
Considerable opposition was encountered to this standard, primarily from those who feared that such
language would encourage conservation commissions to assert jurisdiction over work in the buffer zone
even in cases where the likelihood of impact was so remote as to be negligible. The Department stands
by its experience that work performed in close proximity to wetlands often has an impact on them, but
in order to insure that jurisdiction is asserted only in those cases where the likelihood of impact has
been clearly and unquestionably established, the language of 310 CMR 10.02(2)(b) has been tightened
from "likely to alter" to "will alter." In making this change, the Department seeks only to emphasize that
jurisdiction is not to be automatically asserted over work in the buffer zone; it is still the intent of the
regulations that whenever it is demonstrated that work in a buffer zone will have an impact on a
neighboring wetland a Notice of Intent will be required and an appropriate Order of Conditions
obtained.
Under M.G.L. c. 131, § 40, any person may request the conservation commission to determine11
whether its provisions are "applicable to any land or work thereon." The procedures for obtaining such
a determination are set forth in 310 CMR 10.05(3).
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Some commentators have also questioned the Department's authority to establish a buffer zone,
citing the recent Appeals Court case of Town of Rutland v. Fife, Mass. App. Adv. Sh. (1981) 308.12
Such objections, however, misconstrue the intended nature and function of the buffer zone; as noted
above, its purpose is not to expand jurisdiction automatically beyond the boundaries of bordering
vegetated wetlands, but to provide a mechanism by which local conservation commissions can be
notified of projects located outside these boundaries but sufficiently close thereto to pose a potential
environmental threat. Only in the event that the conservation commission concludes that the proposed
project will alter the wetland is a Notice of Intent required.
Indeed, the concept of a buffer zone is hardly novel; although its precise origins are obscure, it has
been informally applied for years by conservation commissions and the Department's wetlands staff.
If anything, the regulations will put an end to the misconception, apparently still held by some
commissions, that jurisdiction under M.G.L. c. 131, § 40 extends 100 feet beyond wetlands
boundaries, irrespective of whether work in that zone will have any impact on the wetland.
In order to lessen the burden on persons planning projects within the buffer zone, the information
required of them has been kept to a minimum. See Form 1, Request for a Determination of
Applicability, 310 CMR 10.99. At the applicant's option, of course, supplementary information can
be submitted to describe the manner in which proposed preventive measures will operate to insulate
the wetland from damage and to demonstrate why no alteration of the wetland is likely.
B. Regulation of Work at Distances Greater Than 100 Feet From Bordering Vegetated Wetlands
A number of commentators questioned the Department's decision to limit the buffer zone to 100
feet and to require no preconstruction review for projects beyond that zone. They point to instances
in which construction activity taking place well beyond the boundaries of a wetland has had an adverse
impact on it, and emphasize the irreparable damage that such work can cause. Whatever protective
zone is established will by its very nature be somewhat arbitrary, however, and in the Department's
judgment and experience the likelihood of impact becomes so attenuated at distances greater than 100
feet that preconstruction review can no
The Department questions whether the original opinion in Rutland v. Fife was in any way relevant12
to the validity of the 100-foot buffer zone contained in its regulations. In any event, the issue is now
moot; on motion of the Attorney General's Office, the Appeals Court modified its opinion by adding
the following footnote:
We do not decide the question whether work must be done in a wetland in order to
constitute alteration of that wetland. Footnote, corrected page 309.
Under M.G.L. c. 131, § 40, the filing of a Notice of Intent is required whenever proposed work will
"remove, fill, dredge or alter" a resource area. There is nothing in the text of M.G.L. c. 131, § 40 to
indicate that such work can be regulated only when it takes place within the borders of a resource area,
nor in the Department's judgment would such a limitation be appropriate; as noted above, the effects
of construction well beyond the border of a wetland will often cause significant and irreparable damage
to that area.
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longer be justified. Accordingly, projects undertaken beyond the buffer zone are subject to regulation13
only when alteration of the wetland actually occurs, 310 CMR 10.02(2)(c). Furthermore, it is the
Department's expectation that the regulatory scheme it has adopted will provide a clear incentive for
developers to stay far removed from wetlands, since projects undertaken beyond the buffer zone will
thereby avoid preconstruction review.
C. Performance Standards: Bordering Vegetated Wetlands
As noted above, performance standards similar to those developed by the Department for coastal
wetlands have been incorporated in Part III of the regulations for each of the inland resource areas
identified in M.G.L. c. 131, § 40. When an Order of Conditions is drafted by either a local
conservation commission or the Department these standards will provide the general guidelines by
which the proposed work is to be conditioned. In the case of bordering vegetated wetlands, as defined
in 310 CMR 10.55, the Department has concluded that once such an area is determined to be
significant to one or more of the interests specified in M.G.L. c. 131, § 40 any alteration or destruction
of that area will impair if not eliminate its capacity to contribute to the protection of those interests.
Accordingly, the performance standards for bordering vegetated wetlands allow work in those areas
only under very narrowly defined circumstances.
Several commentators have questioned whether the Department has the authority, through its
regulations, to limit construction activities in this manner; to the extent that prohibition is allowed at all,
they argue, it is only pursuant to the Wetlands Restriction Act, M.G.L. c. 131, § 40A. There are a14
number of responses to this argument, and because the performance standards for bordering vegetated
wetlands are at the very heart of the Department's regulations, they will be discussed in some detail.
First, it should be noted that to the extent that the regulations can be characterized as prohibiting
construction, it is only with respect to the most ecologically sensitive of the many resource areas
identified in M.G.L. c. 131, § 40. In all other areas, the regulations now make clear, work can go
forward under performance standards that are explicit in the protective measures that must be taken
but are by no means prohibitive in their impact on development. It is only in bordering vegetated
wetlands, the Department has concluded, that the interests of M.G.L. c. 131, § 40 cannot be protected
other than by leaving the existing wetland plant community intact. While retention and detention basins
and compensatory storage measures can replicate the flood control value of bordering vegetated
wetlands, there are no engineering solutions currently
At one point in its deliberations, the Department considered the possibility of employing a matrix13
approach to work done outside of but in close proximity to a wetlands boundary, utilizing certain
factors to arrive at a buffer distance that would vary with local topography and project size. This
approach was ultimately discarded as far too complex and cumbersome for applicants to deal with and
conservation commissions to administer.
As with the buffer zone, the stringent performance standards for bordering vegetated wetlands can14
hardly be characterized as revolutionary. Under the present regulations pertaining to salt marshes, the
coastal equivalent of bordering vegetated wetlands, no project may be allowed that will destroy any
portion of a salt marsh, 310 CMR 10.32(3). Similarly, under the present 310 CMR 10.2(27) an
Order of Conditions "shall regulate or prohibit the (proposed) activity". See also letter of April 26,
1976, from the Chief of the Attorney General's Environmental Protection Division to all Conservation
Commissions, written in the aftermath of MacGibbon v. Board of Appeals of Duxbury, 369 Mass.
512 (1976) and concluding that in our view, therefore, municipalities may continue to protect wetlands
by the enactment of conservation bylaws under the Zoning Act and by the imposition of conditions or
the prohibition of alteration of wetlands under M.G.L. c. 131, § 40.
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available that can replace the capacity of such wetlands to renovate water quality or to provide food,
cover and habitat for fisheries.15
In addition, the Department has defined the boundaries of bordering vegetated wetlands areas in
a conservative manner, so that only the most essential inner reaches of these systems are subject to the
strict performance standards; under 310 CMR 10.55(2)(c) "the boundary of bordering vegetated
community consists of the wetlands plant species identified in M.G.L. c. 131, § 40." Compared to the
expansive and often ad hoc boundary decisions occasioned by the previous regulations, the new
regulations amount to a significant increase in the land area available for development.
Finally, after review of the comments and consultation with the Technical Review Group, the
Department has identified two further means by which slight intrusions at the periphery of subject
wetlands can be allowed without impairment of the functions they serve. Both such exceptions to the
general prohibition on work in bordering vegetated wetlands have been carefully circumscribed, and
are available only at the discretion of the issuing authority. The first, addressed at 310 CMR
10.55(4)(b), allows the loss of up to 5000 square feet of subject wetlands when the wetland habitat
is replaced in accordance with the strict standards set forth in 310 CMR 10.55(4)(b)(1)-(7). The
second provision permits the filling of linear wetland formations of less than 500 square feet, where such
formations extend from the main body of subject wetlands into adjacent uplands. These formations
characteristically occur along the edges of wetland systems in the glaciated northeast, and pursuant to
310 CMR 10.55(4)(c) they may be filled in those cases where the issuing authority decides that a
project cannot otherwise go forward. In the Department's judgment, any such exception must be
carefully conditioned by the issuing authority but is nevertheless appropriate because the narrow linear
configuration of these formations means that (1) they represent a very small percentage of the surface
area of subject wetlands within the state, (2) they can be distinguished clearly from the main body of
subject wetlands, thus providing a definite limit to the amount of filling allowed and (3) they tend to
divide otherwise buildable lots into parcels too small for practical use.
For the foregoing reasons, the Department concludes that its performance standards for bordering
vegetated wetlands will not only preserve and protect the critical functions provided by this type of
resource, but will not unduly impair development in the Commonwealth, a conclusion buttressed by the
comprehensive review of past Environmental Notification Forms undertaken jointly by the Division of
Wetlands Protection and the MEPA Unit of the Executive Office of Environmental Affairs.16
Because of the extensive comments the Department received on its proposed performance standards15
for bordering vegetated wetlands, the issue was subjected to intense scrutiny by the Technical Review
Group during the post-public hearing phase of this rulemaking. After extended deliberation, the
Technical Review Group unanimously agreed that current research supports the position taken by the
Department that the functions served by bordering vegetated wetlands cannot be replicated in their
totality be engineering means.
See letter of February 2, 1982 from Samuel Mygatt, Executive Director of the MEPA Unit to16
Anthony Cortese, Commissioner of the Department. In concluding his report, Mr. Mygatt makes the
following observations:
First, the proposed regulations are extremely clear and easy to apply, and in
almost all instances, their effect on a proposed project is readily predictable.
This is in marked contrast to the present regulations. Secondly, the treatment of
the "Buffer Zone" will be strong inducement to project proponents to carefully
design their projects to minimize impacts on nearby wetland areas. Third, the
proposed regulations will constrain suprisingly little present development in
Massachusetts.
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Of course, minimal impact on the ability to develop private property is no defense to the claim that
the Department is acting ultra vires; if prohibition of certain activities is not necessary to effectuate the
purposes of M.G.L. c. 131, § 40 or is not authorized thereunder, then it is irrelevant that the strict
performance standards of 310 CMR 10.55 apply to a comparatively small portion of the total land area
subject to regulation under M.G.L. c. 131, § 40. For the reasons detailed above, however, the
Department has concluded that destruction of bordering vegetated wetlands must be curtailed if the
interests identified in M.G.L. c. 131, § 40 are to be protected; it therefore only remains to be
determined whether the language of M.G.L. c. 131, § 40 allows such protective measures.
Under M.G.L. c. 131, § 40, once a resource area is determined to be significant to one or more
of the specified interests, the conservation commission (or the Department on appeal) is directed to
issue an order imposing "such conditions as will contribute to the protection of the interests described
herein, and all work shall be done in accordance therewith." There is certainly nothing in this language
to indicate that in the appropriate case the interests may not be protected by prohibition, and as a
general proposition of law it has been repeatedly recognized that the power to regulate implies the
power to prohibit.17
The Department finds further and explicit support for its position in Commissioner of Natural
Resources v. S. Volpe and Co., 349 Mass. 104 (1965), which arose under M.G.L. c. 130, § 27A,
a predecessor to the present Wetlands Protection Act. Under M.G.L. c. 130, § 27A, any person
proposing to undertake work in a coastal wetland was required to file a notice of intent with the
Director of Marine Fisheries; if the director determined that the wetland contained shellfish or was
necessary to protect marine fisheries, he was authorized to "impose such conditions on said proposed
work as he may determine necessary to protect such shellfish or marine fisheries, and work shall be
done subject thereto," language that is virtually identical to that of the present Wetlands Protection Act.
Pursuant to this authority, the director prohibited the filling of a large marsh in Wareham, an order that
the Supreme Judicial Court concluded was lawful and consistent with the language of M.G.L. c. 130,
§ 27A. Id. at 111. Finally, in Lovequist v. Conservation Commission of the Town of Dennis,
Mass. Adv. Sh. (1979) 2210, a local floodplain by-law empowered the town's conservation
commission to deny permission for any project that would harm "the environmental quality of either or
both the subject lands and contiguous lands." The by-law was attacked as being inconsistent with the
Wetlands Protection Act, a challenge that was dismissed by the Supreme Judicial Court on a number
of grounds, including the fact that "pursuant to (the Department's wetlands regulations) conservation
commissions for almost five years have had a prerogative to prohibit construction which might injure
wetlands areas." Id. at 2219.
Nor is there anything in the Wetlands Restriction Act, M.G.L. c. 131, § 40A, that would preclude
exercising the power of prohibition under the Wetlands Protection Act. Under the Wetlands
Restriction Act the Department of Environmental Management ("DEM") is authorized to adopt orders
"regulating, restricting or prohibiting (the) dredging, filling, removing or otherwise altering or pollution
(of) inland wetlands." The legislature thus provided DEM with the same broad range of regulatory
options that are possible under the Wetlands Protection Act - regulation, restriction or prohibition - and
if DEM has chosen to adopt a policy of prohibition this choice should certainly not operate to preclude
the Department from acting similarly in the appropriate situation; if anything, DEM's program confirms
the Department's judgment and experience with respect to the level of protection necessary to preserve
the ecological functions of bordering vegetated wetlands. The Department notes that the DEM
restriction program is a coordinated regional approach to entire watershed
In John Donnelly and Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206, 214 (1975), for17
example, the Supreme Judicial Court upheld a local ordinance prohibiting all off-premise advertising,
an ordinance that was passed pursuant to an Article of Amendment to the Massachusetts Constitution
that authorized the regulation and restriction of such advertising but was silent as to outright prohibition.
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systems, and views its own program as the local complement thereof. In addition, due to limitations
on resources and finances, the DEM program has thus far been able to address the wetlands resources
of only a small number of communities; pending completion of the DEM effort, it is all the more
important to insure that the most critical of the Commonwealth's wetlands resources not be further
destroyed.
D. Presumptions of Significance
As noted above, Part III of the newly promulgated regulations contains rebuttable presumptions
of significance for each of the inland resource areas identified in M.G.L. c. 131, § 40. They are based
on the Department's extensive experience in administering its wetlands protection program and on the
recommendations of recognized science and engineering experts from both the consulting and academic
communities. While it is the Department's judgment that the resource areas are so likely to be
significant to the interests indicated in the revised regulations that the presumptions are justified, the
prima facie force of each can be overcome by the introduction of sufficient evidence to the contrary.
E. Definition of "Stream"
During the public comment period the environmental community repeatedly expressed concern that
under the proposed regulations intermittent streams throughout the Commonwealth would no longer
be subject to jurisdiction. This has never been the Department's intention, and the definition has
consequently been clarified to indicate that intermittent streams are included within the definition, except
those portions that are upgradient of all wetlands. (See 310 CMR 10.04, definition of stream.) This
provides a clear, practical cut-off point for distinguishing between true streams and small drainage
channels which flow in direct response to precipitation.
F. Identification and Regulation of Land Subject to Flooding
The public hearing draft made a distinction between bordering land subject to flooding (i.e., flood
plains) and isolated land subject to flooding (i.e., trapped drainage areas), set forth methods for
determining the boundaries of each, and, with respect to bordering land subject to flooding, required
compensatory storage for all storage volume that would be lost. The Technical Review Group
unanimously endorsed this approach, but did make several recommendations for refinement which have
been incorporated into the adopted regulations. These include (1) a provision allowing any party to
challenge the accuracy of the boundary of the 100-year flood as derived from the National Flood
Insurance Program profile data, and (2) clarification of the definition of compensatory storage. See
310 CMR 10.57.
G. Use of the Standard "in the judgment of the issuing authority"
Several commentators objected to the above language, which is used throughout the regulation in
characterizing the various decisions that must be made by the issuing authority. Their argument is that
such language appears to authorize a totally subjective judgment, but similar language in local
ordinances has been upheld in court against just such a challenge. The use of this language is not
intended to give conservation commissions or the Department any more discretionary authority than
they now have under law and these regulations; indeed, each of the decisions they must make has been
carefully circumscribed by the precise definitions and explicit performance standards set forth in the
regulations. The Department's intention in utilizing this language is to make clear that where
discretionary authority is warranted it is to be exercised by the issuing authority and not by project
opponents or proponents.
Wetland Regulation: Preface Appendices – May 2008 39
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 465
10.00: continued
H. Enforcement Orders
310 CMR 10.08 sets forth the procedures with respect to enforcement orders, to which some
parties have objected because there is no explicit authorization for the issuance of such orders in
M.G.L. c. 131, § 40. Conservation commissions have been issuing cease and desist orders for years,
typically when work is commenced in a wetland without first obtaining an Order of Conditions. This
emergency authority is clearly necessary, for significant and irreversible damage can be done to such
areas if a conservation commission's only recourse under such circumstances is to institute legal
proceedings.18
According to M.G.L. c. 131, § 40, "rules and regulations shall be promulgated by the
commissioner to effectuate the purposes of this section." Under M.G.L. c. 21A, § 2(28), the
Department shall "promulgate rules and regulations necessary to carry out (its) statutory
responsibilities." Given the fragile and irreplaceable nature of wetlands, the emergency power to stop
a project that is in violation of M.G.L. c. 131, § 40 or these regulations is both necessary an consistent
with statutory authority. To the extent that a landowner wishes to challenge the jurisdiction of the
conservation commission or the grounds upon which an enforcement order was issued, he may go to
Superior Court and seek immediate injunctive relief.
I. Work Pending Appeals
In order to lessen the nuisance potential of frivolous appeals, which often serve no purpose other
than to frustrate meritorious projects, the regulations permit work to proceed, at the applicant's risk,
35 days after a negative determination of applicability by the conservation commission, even if an
appeal has been taken to the Department. Similarly, work may proceed at the applicant's risk
immediately following a negative determination by the Department, even if a request for an adjudicatory
hearing has been filed. 310 CMR 10.05(3)(d). It should be noted that this ability to perform work in
the face of an appeal is limited to situations involving determinations of applicability; under M.G.L.
c. 131, § 40, as the Department interprets it, no work can proceed pursuant to an order to conditions
once a request for a superseding order has been filed or, in the case of a superseding order, once a
request for an adjudicatory hearing has been filed.
VI. STUDY GROUP
The Department has made a major effort to consider all of the impacts of these revised regulations
on both wetlands and development in the Commonwealth. There is no way to know with certainty how
any new regulations will work in all situations until there has been significant experience in their
implementation. To insure that they work the way they are intended the Department plans to set up
a study group composed of representatives from the environmental, development and consulting
communities to monitor the effects of the regulations during the first year of their implementation. The
study group will be charged with the responsibility of making recommendations to the Department
should they determine after their one year review that further amendments are necessary.
Indeed the Department and the Attorney General's Office jointly issued a report entitled18
"Recommended Procedures for Enforcement of the Wetlands Protection Act, Mass. M.G.L. c. 131,
§ 40, for Conservation Commissions," dated January 17, 1977, which included a sample cease and
desist order similar to this enforcement order.
Wetland Regulation: Preface Appendices – May 2008 40
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 466
PREFACE TO WETLANDS REGULATIONS RELATIVE TO FEES
1989 REGULATORY REVISION
I. INTRODUCTION
A. Authority to Set Fees. Recognizing that conservation commissions and the Department of
Environmental Protection need adequate resources to act expeditiously on filings under the Wetlands
Protection Act, M.G.L. c. 131, § 40, ("M.G.L. c. 131, § 40") without compromising the quality of their
decisions, the Legislature amended M.G.L. c. 131, § 40 during the Summer of 1988. St. 1988,
c. 202, §§ 26 and 30 require the implementation of a sliding scale fee schedule for filing Notices of
Intent, in order to defray state and local costs of administering the Wetlands Protection Act. The Act
was further amended by St. 1989, c. 287, § 54 which requires that fifty percent of any Notice of Intent
filing fee in excess of $25 shall be made payable to the Commonwealth of Massachusetts and the
remainder shall be made payable to the city or town in which the work is proposed.
In addition, the enabling legislation of the Executive Office of Administration and Finance, M.G.L.
c. 7, § 3b as amended by St. 1988, c. 236, § 10, requires agencies which provide services of benefit
to individuals to charge a fee commensurate with the cost of providing that service.
The wetlands fee system is codified at 310 CMR 10.00 WETLANDS PROTECTION (DEP) and
801 CMR 4.00 RATES (ADMINISTRATION & FINANCE). Department wetland regulations
contain procedures and instructions regarding the fees established by Administration and Finance.
Persons filing documents under the Wetlands Protection Act are advised to consult both regulations.
B. Purpose of Fee System. The purpose of the fee system is to defray local and state costs of
administering the Wetlands Protection Act. The fee structure is intended to ensure that conservation
commissions and the Department will have the resources to provide detailed project review and to
issue regulatory decisions within required time frames.
C. Disposition of Notice of Intent Fees. For each Notice of Intent, the applicant must submit half of
the fee in excess of $25 to the DEP Lock Box and the balance to the city or town in which the work
is proposed.
II. SUMMARY OF REGULATIONS
A. Notice of Intent Fees. An applicant must submit the correct fee amount in order to meet the
minimum submittal requirements for a Notice of Intent. Fifty percent of the fee in excess of $25 is paid
to the DEP Lock Box. The remainder must be paid to the city or town where the work is proposed.
If the conservation commission or the Department determines that an incorrect amount has been paid
and has issued notification to the applicant, the filing is deemed incomplete and the time period for
action is stayed. Once the correct fee amount has been paid and the filing is deemed complete, the time
period for action will resume.
The list of project categories and associated fees can be found at 801 CMR 4.02(310). 310 CMR
10.03(7)(c) describes all the activities in each fee category. The filing fee is based on the project design
as it is described in the initial Notice of Intent filing and applies only to activities proposed in areas
subject to juristiction under M.G.L. c. 131, § 40. If the project is scaled down during the review
process, the applicant does not receive a refund on any portion of the fee originally filed since the
conservation commission and the Department have already spent the time reviewing the original
proposal.
Wetland Regulation: Preface Appendices – May 2008 41
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 467
10.00: continued
B. Disputes Regarding Amount of Notice of Intent Fee. Should the conser- vation commission
determine at any time during its deliberations that the incorrect fee amount has been paid by the
applicant, the commission should notify the applicant and the Department. Further action on the filing
is stayed until the correct fee has been paid. The applicant then may choose to pay the balance
assessed by the commission without disputing it, pay the disputed amount (half to the Department and
half to the city or town), or file a Request for Determination of Applicability. If the fee originally filed
by the applicant is affirmed in a Final Order, the applicant is entitled to request a refund of the disputed
amount, one half each from the Department and from the city or town.
If the applicant files a Request for Determination pursuant to a Notice of Insufficient Filing Fee, the
Determination issued by the conservation commission, or by the Department on appeal, is determinative
regarding the filing fee. During the processing of the Determination, action on the Notice of Intent is
stayed.
C. Fees for Actions by the Department. Actions by the Department for which fees are assessed are
specified in 801 CMR 4.02(310) and include Requests for Superseding Determinations of
Applicability, Requests for Superseding Orders of Conditions, Claims for Adjudicatory Hearings,
Requests to Intervene in an Adjudicatory Hearing, and Requests for Variances.
These fees shall be paid directly to the DEP Lock Box with a photocopy of the Request for
Departmental Action Fee Transmittal Form accompanying the appeal. The Department will not
proceed with review until receiving evidence that such fee has been paid.
D. Exemptions. 801 CMR 4.02(310) provides for certain exemptions to wetland filing fees.
Wetland Regulation: Preface Appendices – May 2008 42
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 468
PREFACE TO THE WETLANDS REGULATIONS RELATIVE TO TECHNICAL CHANGES
1992 WETLANDS PROTECTION ACT REGULATORY REVISIONS (310 CMR 10.00)
NOTE: The following is a preface to, but does not form a part of, the Wetlands
Protection Act Regulations (310 CMR 10.00).
Definition of Pond. The proposed redefinition of the term "pond" in 310 CMR 10.00 is being
undertaken in order to clarify the intention of the Department to include those water bodies which were
created by means other than by impoundment. A recent judicial decision, Warcewicz v. DEP, 410
Mass. 548, 574 N.E. 2d 364 (1991), rendered a strict interpretation of the current definition of pond
which limited the jurisdiction of the Wetlands Protection Act with respect to man-made ponds to only
those ponds created by damming or impoundment. The proposed regulatory amendment is intended
to extend the protection afforded by the Wetlands Protection Act (the "Act") to those non-impounded
man-made surface water bodies which serve to protect the interests of the Act and function as wetland
resources. In the case of gravel pits and quarries, the jurisdiction of the proposed regulations is
intended only to apply to those ponds in which mining operations have ceased for five or more
consecutive years.
Rare Species. The regulatory revisions are primarily administrative in nature, with slight subtantive
changes intended to clarify the regulations. The revised regulations (310 CMR 10.37, 10.59 and
10.99) eliminate the prior process whereby applicants with projects on the "Estimated Habitat Maps"
of rare, state-listed animal species were required to file an "Appendix A" with the state Natural
Heritage and Endangered Species Program prior to filing a Notice of Intent (NOI) with the
conservation commission. Instead, a copy of the fully completed NOI itself will need to be filed with
the Heritage Program (sent in such a manner that delivery will be made within two days of the filing of
the NOI with the conservation commission and DEP). This change is designed to save time and
paperwork for the applicant, while providing the Heritage Program with more detailed information on
the project to assist it in its role of advising commissions on protection of rare species.
Changes in 310 CMR 10.00, and particularly in the 310 CMR 10.99 "General Instructions" for
the Notice of Intent, seek to clarify that any project subject to the filing of a Notice of Intent (even such
a project in the buffer zone) is required to notify the Heritage Program if it is on the Estimated Habitat
Map. The performance standard, which seeks to protect rare species habitat only in wetland resource
areas (not buffer zones), would not change. However, the language of the instructions clarifies that it
is the conservation commission and DEP (not the applicant) which determines whether a buffer zone
project (or any other project) would adversely affect the resource area habitat.
Form Changes. As noted directly above, some revisions have been made in the Notice of Intent,
Abbreviated Notice of Intent, and the General Instructions forms (along with the deletion of the
Appendix A form) which were necessitated by changes in the rare species procedures (discussed
directly above). In addition, forms found in 310 CMR 10.99 may look slightly different from the
previous versions, particularly due to deletion of logos from the tops of some forms, as well as changes
in type faces, and pagination. This was necessitated by our transfering the forms to a computer format.
However, there have been no substantive changes to the forms except for those referred to in the first
sentence of this paragraph.
Wetland Regulation: Preface Appendices – May 2008 43
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 469
RESPONSE TO PUBLIC COMMENTS RELATIVE TO 1992 TECHNICAL CHANGES
TO THE WETLANDS PROTECTION ACT REGULATIONS (310 CMR 10.00)
NOTE: The following Response to Public Comments does not form a part of the
Wetlands Protection Act Regulations (310 CMR 10.00).
Introduction. In February, 1992, the Department of Environmental Protection proposed a number of
revisions to the Wetlands Protection Act Regulations (310 CMR 10.00). Because certain of these
revisions could arguably result in a weakening of specific, existing regulatory standards, the Department
filed an Environmental Notification Form (ENF) as required under the Massachusetts Environmental
Protection Act (MEPA). Since those revisions were proposed, and the ENF on them filed, the
Department has recieved a great deal of public comment. Based on that comment, the Deparatment
intends to promulgate final regulations which are considerably different from those originally proposed.
For this reason, the Department has withdrawn the ENF previously filed under MEPA, and plans to
refile the ENF with regard to its revised proposals on agriculture and aquaculture, Areas of Critical
Environmental Concern, dam safety/lake drawdowns and airport tree clearing. However the new ENF
will not cover those proposed regulatory changes which we view as being primarily technical in nature.
These technical changes, discussed below, are being promulgated at this time.
Definition of Pond. Public response to the proposed regulatory amendment to redefine pond included
comments from 20 communities, three public agencies, five special interest groups, three consultants,
seven individuals, and one private company. The majority of comments supported the proposed
changes. However a substantial number of comments suggested that the proposed language be further
amended.
The proposed amendments contained in the public comments primarily related to the issues of: 1.
clarifying the definition of man-made basins which are exempt; 2. defining what is meant by "natural
conditions"; 3. redefining "drought"; and 4. clarifying what is meant by "inactive" gravel pits. As a result
of these comments, the proposed definition of pond has been further amended in the following respects.
In order to clarify the exemption for "impervious retention basins" originally proposed in subsection
(b) of the proposed definition, the exclusive reference to retention basins was eliminated and the
proposed language was amended to reference all "impervious man-made basins" be they retention
basins or otherwise. This more comprehensive phrase is intended to include those man-made
structures which were created for a specific purpose and which were not created to provide all the
functions which are provided by natural wetland systems.
Many comments were received referring to the difficulty of determining what is meant by "natural
conditions" in the sentence: "Ponds shall contain standing water under natural conditions, except during
periods of extended drought". Rather than attempt to further define what is meant by "natural
conditions", the proposed language was amended to delete the reference to this phrase. As a result,
ponds shall be required to contain water under any conditions except during periods of extended
drought. Additional comments were received which suggested changes to the definition of "extended
drought". Further research on this point revealed that there is no more acceptable definition of drought
than that which exists in the current regulations. As a result, the definition of drought contained in this
portion of the regulations was not amended.
In order to clarify the reference of the exclusion of gravel pits contained in subsection (c), this
section was further amended to specifically reference "individual gravel pits...". Due to the extensive
nature of some graveling operations, this clarification is specifically intended to include those individual
gravel pits which, although located on the same property as a larger graveling operation, have been
abandoned and inactive for five or more consecutive years.
Wetland Regulation: Preface Appendices – May 2008 44
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 470
10.00: continued
Fees. Public comment ran the gamut on this issue, from oppostion to lowering of specific fees to
proposals to exempt certain projects and parties from fees entirely. Regarding our proposal to lower
the fee for new agriculture/aquaculture projects, we believe this is justified for two reasons: a) the
majority of such projects are quite small and require a relatively short time for review, and b) the
Commonwealth has an interest in reducing unnecessary burdens on an already hard pressed agricultural
industry in order to keep farming viable in the state.
Rare Species Procedures. Public comments were overwhelmingly supportive of the proposed deletion
of the "Appendix A" and the substitution of submitting a completed Notice of Intent (NOI) to the
Natural Heritage & Endangered Species Program when a project is proposed within estimated rare
species habitat. A few changes in the regulation as originally proposed were made in response to
public comment:
It was clarified that the NOI to be sent to the Heritage Program must include all plans, reports and
other materials required to be filed with the conservation commission.
Because of the statutory requirement that hearings on NOIs be held within 21 days and decisions
made within 21 days after the hearing, it is impossible to create a perfect procedure for ensuring that
the Heritage Program has adequate time to make its determination on rare species without delaying the
permitting process. In the final regulations, we allow applicants to send the NOI to the Heritage
Program "via the U.S. Postal Service by express or priority mail (or otherwise sent in a manner that
guarantees delivery within two days)", so long as evidence of such mailing is included with the NOI
submitted to the commission and DEP. This was done to ensure that project proposals are not delayed
by the rare species regulatory requirement, while at the same time providing the Heritage Program with
adequate time to review rare species impacts. It is important to note that if a project proponent refuses
to extend a public hearing in a case where the Heritage Program has not yet issued its determination
on rare species at the time of the hearing, the conservation commission is still free to consider the
Program's determination if it is received within 21 days after the close of the hearing. Thus a wise
applicant will generally agree to a hearing extension, so that he or she can have a chance to respond
after the Heritage Program's determination has been received by the commission.
The word "delineated" was deleted in reference to Estimated Habitat Maps because the boundaries
of such maps are estimated, and not clearly delineated.
Finally, it was noted in the NOI Instructions that rare species performance standards apply except
in Designated Port Areas and where a Variance has been issued.
Prefaces for Former Revisions to Wetland Regulations. Public comment generally supported the
concept of our retaining in the regulations the information contained in the Prefaces to past regulatory
revisions. It was felt that this information provided invaluable guidance to conservation commissions
and applicants alike regarding regulatory intent and interpretation. Therefore, the Preface to the most
recent regulatory revisions will always appear at the beginning of the regulations, while the older
Prefaces will hereinafter be printed as Appendices to the Regulations.
Wetland Regulation: Preface Appendices – May 2008 45
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 471
PREFACE TO 1993 REGULATIONS REGARDING
NORMAL MAINTENANCE AND IMPROVEMENT OF LAND IN AGRICULTURAL USE
NOTE: The following is a preface to, but does not form a part of, the Wetlands Protection Act Regulations
(310 CMR 10.00).
Massachusetts is struggling to preserve both its dwindling agricultural base and its remaining
wetlands. Both are threatened. While many agricultural practices are compatible with
wetlands protection, some can result in temporary or permanent losses of key wetlands
functions, such as flood control and pollution attenuation. The Wetlands Protection Act is
intended to ensure that these functions are protected through regulatory review and permitting.
At the same time, because wetlands are such an integral part of many farming operations,
requirements for environmental review could significantly reduce their economic viability. The
Legislature has recognized the value of preserving agriculture in Massachusetts by including in
the Wetlands Protection Act exemptions for normal maintenance and improvement of land in
agricultural use, including cropland and pastureland. These exemptions recognize that some
farming practices will affect wetlands from time to time.
In an effort to keep these competing interests in balance, the Legislative exemptions are
limited to ongoing agricultural operations. That is, if tilling or harvesting is being conducted at
the present time in or near wetlands, that work and any current work related to production of
that agricultural commodity need not go through regulatory review. At the same time, the
Legislature recognized that expanded or new agricultural activities, because they can result in
new temporary or permanent impacts to wetlands, should be subject to review to ensure that
they are conducted in the most environmentally sound manner possible.
The distinction between ongoing work on or related to land in agricultural production, and
agricultural expansion, has not been sufficiently clear to farmers or to conservation
commissions. The Department of Environmental Protection (DEP) has attempted to clarify the
exemptions through policy. In 1991, the Legislature determined that stronger measures to
reduce this confusion were necessary and it enacted legislation directing DEP to develop new,
clearer regulations.
In response to that mandate, DEP has adopted the following regulations. They make it
clear that normal maintenance and improvement of land in agricultural use is exempt from the
Wetlands Protection Act and is not subject to regulations adopted pursuant to the Act -
provided that the activities fall within the newly-adopted definitions. No Determination of
Applicability is required for exempt activities; however, the Determination of Applicability
process is intended for use when there is doubt as to whether or not an activity is exempt.
Nothing in 310 CMR 10.00 changes the need to independently evaluate whether permits are
required under federal laws such as Sections 401 and 404 of the Clean Water Act.
310 CMR 10.00 represents the collective input of dozens of farmers, environmentalists,
many state and federal agencies, advocacy groups, and other concerned citizens. Most
notable in this process were the efforts of the Farmland Advisory Committee, established by
the legislation as an ongoing advisory body, and the Joint Committee on Agriculture and the
Environment. These groups worked diligently with DEP and the Department of Food &
Agriculture (DFA) to develop regulations that are sensitive to the needs of farmers while
preserving valuable wetlands.
DEP believes that, while the appropriate regulatory balance has been achieved, the
regulations cannot be specific enough to address all circumstances. Everyone involved in
developing 310 CMR 10.00 believes that their successful implementation will depend largely
on continuing efforts to provide education and outreach to conservation commissions and the
agricultural community, as well as a good measure of common sense applied by all concerned.
Wetland Regulation: Preface Appendices – May 2008 46
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 472
10.00: continued
310 CMR 10.00 refers to a cooperative process in which certain projects can proceed
only if the proponent has prepared a farm Conservation Plan approved by the United States
Department of Agriculture, Soil Conservation Service (SCS). This process requires
cooperation between the Department and SCS, and that cooperation is formalized by a written
Memorandum of Understanding between the two agencies. Copies of the Memorandum of
Understanding can be obtained from the Department.
In order to ensure that 310 CMR 10.00 achieves its goals, the Secretary of Environmental
Affairs added conditions in her ENF Certificate (EOEA #9266) requiring DEP and the
Department of Food and Agriculture (DFA) to convene an independent monitoring committee.
DEP and DFA will chair a group of representatives of the agricultural and environmental
communities to oversee the implementation of 310 CMR 10.00, to monitor the effects on both
wetlands and agriculture in the Commonwealth, and to provide recommendations for possible
further revisions at the end of a three year period.
This committee will evaluate cumulative impacts of exempt activities. The Committee
should develop a system for gathering information by which it can assess the cumulative
impacts of activities such as those listed at 310 CMR 10.04(Agriculture)(c)(1) (b, c, d, e, and
g). Such a system could include, for example, notice from farmers that certain activities have
been conducted.
Wetland Regulation: Preface Appendices – May 2008 47
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
12/20/02 310 CMR - 473
PREFACE TO WETLANDS REGULATORY REVISIONS EFFECTIVE JANUARY 1, 1994
REGARDING LANDFILL CLOSURES, AIRPORT SAFETY, DAM SAFETY, WATER
SUPPLY DEVELOPMENT, CLEANUP OF OIL & HAZARDOUS MATERIALS,
AND EMERGENCY CERTIFICATION PROCEDURES
310 CMR 10.00
NOTE: The following is a preface to, but does not form a part of, the Wetlands
Protection Act Regulations (310 CMR 10.00).
The Department of Environmental Protection has promulgated regulations creating five new
"limited projects". All five have in common the fact that the types of projects covered are, by
nature, important to the protection of public health, safety and/or the environment. The five
new provisions apply to projects designed to promote, respectively, closure of solid waste
landfills, airport safety, dam safety, development of safe drinking water supplies from
groundwater, and cleanup of releases of oil and hazardous materials.
The purpose of the new regulations is to ensure that such projects, insofar as is practicable:
avoid adverse impacts on wetland resource areas, and where avoidance is not practicable,
minimize and mitigate such impacts.
Prior to the effective date of these new limited projects (January 1, 1994), such projects,
if not able to meet normal Wetlands Protection Act regulatory standards, were required to
obtain a variance from the Commissioner of the Department -- a more expensive and time
consuming procedure than the normal Notice of Intent procedure. Establishment of limited
project status means returning to the local conservation commissions the authority to review
and condition these types of projects.
EMERGENCY CERTIFICATIONS
(310 CMR 10.06(5))
The Department has made revisions to Emergency Certification procedures, some of which
affect only projects to contain and clean up spills of oil and/or hazardous materials (OHM).
These are discussed in the OHM section of this preface, below. The Department also has
changed an important Emergency Certification provision which applies to all emergency
projects, not just OHM sites (310 CMR 10.06(5)). This change specifically gives the
Department the authority to review denials and failures to act by conservation commissions on
requests for emergency certification. This regulatory revision simply reflects the existing
statutory right that exists under the Wetlands Protection Act:
"If the conservation commission ... fail(s) to act favorably within 24 hours of receipt of a
request for certification of an emergency project, said project may be so certified by the
commissioner (of DEP) or his designee."
LANDFILL CLOSURE LIMITED PROJECT
(310 CMR 10.24(7)(c)(4) and 10.53(3)(p))
This new limited project is designed to facilitate the closure of landfills adjacent to wetlands
while ensuring that wetland impacts are avoided or minimized. The limited project regulation
contains a detailed list of conditions for eligibility. Landfill closures eligible for limited project
status are restricted to those mandated by the Department of Environmental Protection in
accordance with the requirements of 310 CMR 19.00. Limited project provisions do not
apply to the construction of new landfills or to the expansion or modification of existing landfills.
In addition, a DEP policy has been adopted to establish an internal review procedure for
evaluating landfill closure alternatives to ensure that wetland resource area impacts are, to the
extent practicable, avoided and, to the extent such impacts cannot be avoided, minimized and
mitigated. Copies of the policy can be obtained from the Departament's Division of Wetlands
& Waterways, One Winter Street, Boston, MA 02108.
Wetland Regulation: Preface Appendices – May 2008 48
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10/3/97 (Effective 10/6/97)310 CMR - 472.1
Preface: continued
AIRPORT SAFETY/VEGETATION REMOVAL LIMITED PROJECT
(310 CMR 10.24(7)(c)(5) and 10.53(3)(n))
This new limited project covers tree clearing around airports and is intended to allow
selective vegetation management in wetland resource areas for maintenance of safe airport
landing zones. Activities under this limited project provision are limited to those required to be
undertaken in order to comply with certain regulations of the Federal Aviation Administration
(FAA). The provision does not apply to the construction of new airport facilities or to the
expansion of existing airport uses that alter wetlands. A five year vegetation management plan
must be included in the Notice of Intent.
In order to ensure that minimal wetland impacts will result from this type of project, a
Generic Environmental Impact Report (GEIR) was prepared by the Massachusetts
Aeronautics Commission and Massport (Final Generic Environmental Impact Report for
Vegetation Removal in Wetlands at Public Use Airports, EOEA No. 8978, August 31, 1993).
The GEIR presents substantial information regarding this class of projects and should be used
to supplement the limited project regulation in order to identify the types of information to be
provided in a Notice of Intent and the types of conditions that should be incorporated into the
Orders of Conditions for applicable projects. Conservation Commissions and applicants are
especially encouraged to refer to the GEIR's "WETLAND IMPACT EVALUATION
CHECKLIST for vegetation removal at airports" found in Chapter 6 of the GEIR. Copies of
the GEIR can be obtained from the Massachusetts Aeronautics Commission, 10 Park Plaza,
Room 6620, Boston, MA 02116-3966.
The Massachusetts Secretary of Environmental Affairs has certified that the GEIR
"adequately and properly complies with the Massachusetts Environmental Policy Act" and
regulations. In that certification, however, the Secretary required that "the DEP, along with
Massport and the MAC (Mass. Aeronautics Commission), prepare and file a new Generic
Environmental Notification Form (ENF) in two years.... The objective of that ENF will be to
evaluate the effectiveness of this new provision, and to provide all those involved with the
opportunity to evaluate it based on actual field experience."
The Secretary went on to say in her certification that the GEIR did not deal adequately with
the idea of mitigation banking and that this issue should be dealt with in much greater depth in
the next GEIR. The Commonwealth has since initiated a feasibility study of wetlands banking.
For this reason, the limited project just promulgated does not now include mitigation banking
in its list of possible mitigation measures to be considered by project applicants.
PUBLIC GROUNDWATER SUPPLY LIMITED PROJECT
(310 CMR 10.53(3)(o))
This new limited project is designed to permit the development of safe public drinking
water supplies from groundwater, while ensuring that wetland impacts are avoided or
minimized. Except for exploration projects, eligibility for limited project status is restricted to
projects approved by the Department of Environmental Protection in accordance with the
provisions of the Public Water Supply Source Approval Process pursuant to 310 CMR 22.21
and/or the Water Management Act, M.G.L. c. 21G. A DEP policy has been adopted to
establish an internal review procedure for evaluating water supply development alternatives to
ensure that wetland resource impacts are, to the extent practicable, avoided and, to the extent
such impacts cannot be avoided, minimized and mitigated. Copies of the policy can be
obtained from the Department's Division of Wetlands & Waterways, One Winter Street,
Boston, MA 02108.
DAM SAFETY/LAKE DRAWDOWN LIMITED PROJECT
(310 CMR 10.53(3)(i) & (m))
The purpose of this limited project is to provide a reasonable balance between dam safety
and wetland protection interests, and to ensure that safety-related "drawdowns" of water levels
in dammed impoundments do not drain wetlands for any longer a period than necessary. This
has been accomplished in two ways.
Wetland Regulation: Preface Appendices – May 2008 49
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10/3/97 (Effective 10/6/97)310 CMR - 472.2
Preface: continued
First, the existing limited project for maintenance, repair and improvement of "structures"
(310 CMR 10.53(3)(i)) has been amended to specifically include dams and reservoirs. Both
drawdowns and refilling of dams pursuant to dam repair are now covered. Second, a new
limited project (310 CMR 10.53(3)(m)) has been created for drawdowns that occur in
response to orders or other recommendations from the Department of Environmental
Management's Office of Dam Safety (DEM).
In extreme emergency situations, DEM orders immediate drawdown of water levels to
protect public safety. Such drawdowns are statutorily authorized to occur without prior filing
of a Notice of Intent (M.G.L. c. 253, §§ 44 through 50). More commonly, however, DEM
tries to identify unsafe dams well in advance of the point where they pose an imminent threat.
When DEM identifies such an unsafe dam, it usually sends a request to the dam owner to
"certify as to the safety" of the dam. These DEM "recommendation letters" usually include
recommended response actions, but they do not order any specific response action, such as
dam repair. In response, dam owners generally seek to draw down water levels to lessen
stress on the dam. However, drawdowns made in response to DEM "recommendation letters"
may not be undertaken without first filing a Notice of Intent and receiving an Order of
Conditions.
Such drawdowns clearly "alter" wetlands and frequently alter more than 5,000 square feet
of bordering vegetated wetland. Particularly if the drawdowns are allowed to continue for
extended periods, they can result in significant adverse impacts. Yet drawdowns are often
critical for dam safety purposes. For this reason, the new wetlands limited project has been
established to allow drawdowns made in response to DEM "Orders" and "Recommendation
Letters" to occur in two circumstances:
1. Where the drawdown is to occur for a limited time in order to render the dam safe until
repairs can be made. In this circumstance, DEM has agreed in a Memorandum of
Understanding (MOU) with DEP to issue a finding, on a case by case basis, establishing
a reasonable period of time in which the drawdown and repair are to be completed. Such
a finding by the DEM Office of Dam Safety should be included by the applicant with a
Notice of Intent for this type of project.
2. Where DEM has found that the drawdown is necessary for public safety, and that it
is not economically feasible at the time of such finding to repair the dam. Again, DEM has
agreed in its MOU with DEP to issue such findings in writing, and to send copies to the
conservation commission and DEP. DEM will generally find repair to be infeasible when
the cost of the repair exceeds the value of the property containing the dam, except where
the dam owner derives other financial benefits from the dam. DEM also has agreed in its
MOU with DEP to issue a "superseding" finding of economic feasibility upon request of
any person, organization, or agency if warranted by changed circumstances (e.g., change
in dam ownership, commitment by another person or group to finance the repair in whole
or in part, etc.). When a DEM finding of economic infeasibility has been issued,
conservation commissions may grant an Order of Conditions for up to three years for the
drawdown, and may extend or reissue an Order as many times as necessary so long as
repair continues to be economically infeasible.
This limited project provision should ensure that all drawdowns related to dam safety are
permissible under 310 CMR 10.00, while limiting their duration to the time it takes to repair
the dam, unless such repair is economically infeasible. By establishing this limited project, the
Department hopes to create a clear mechanism whereby both dam owners and third parties
are encouraged to take all reasonable actions to alleviate adverse impacts from dam
safety-related water level drawdowns.
LIMITED PROJECT AND EMERGENCY CERTIFICATION PROCEDURES FOR
RESPONSE ACTIONS TO RELEASES OF OIL AND/OR HAZARDOUS MATERIALS
(310 CMR 10.06(3) & (7), 10.24(7)(c)(6), and 10.53(3)(q))
On July 31, 1993, the Department issued a new set of regulations governing cleanups of
oil and/or hazardous materials (OHM) (310 CMR 40.0000). The Department now has
revised its Wetlands Protection Act Regulations (310 CMR 10.00) to provide greater
consistency and ease of administration in applying 310 CMR 40.0000 and 310 CMR 10.00
while ensuring that the interests of the Wetlands Protection Act are protected to the greatest
extent practicable. (A short summary of 310 CMR 40.0000 is available from the
Department's Divison of Wetlands and Waterways, One Winter Street, Boston, MA 02108.)
Wetland Regulation: Preface Appendices – May 2008 50
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10/3/97 (Effective 10/6/97)310 CMR - 472.3
Preface: continued
The Department has adopted a new wetlands "limited project" for OHM release response
actions that are necessary to protect health, safety, public welfare, and/or the environment, but
that cannot meet current wetland regulatory standards without obtaining a variance. Standards
for the limited project are similar to, though considerably more detailed than, the Wetlands
variance standards.
The Department also has amended the Wetlands emergency procedures as they relate to
remediation of OHM spills in order to ensure that these procedures don't result in unnecessary
delays and exacerbation of critical toxic pollution problems.
New Wetlands Regulation Limited Project for Oil and/or Hazardous Materials Release
Response Actions
Because cleanups of oil and/or hazardous material (OHM) releases are critical for the
protection of health, safety, public welfare, and the environment, the Department believes that
they should be allowed to go forward so long as, to the maximum extent practicable: adverse
impacts to wetlands are avoided and, to the extent this is not possible, such adverse impacts
are minimized and mitigated.
310 CMR 40.0000 gives responsible parties (RPs) a number of alternatives for dealing
with oil and hazardous material releases. Immediate Response Actions (IRAs) are generally
required to be implemented on an emergency basis, and thus would normally be reviewed
under the emergency certification provisions of the Wetland Regulations (see discussion of
emergency certifications in this Preface, below).
Any other measure implemented pursuant to 310 CMR 40.0000 that can meet normal
Wetland regulatory performance standards will continue to be governed by those standards
and will not be eligible for limited project status. Furthermore, any measure undertaken
pursuant to 310 CMR 40.0000 that is not needed to eliminate significant risk to health, safety,
public welfare or the environment (i.e., measures designed solely to reach "background" levels
of pollution) will not be eligible for limited project status (see the language in parentheses in the
first paragraph of 310 CMR 10.24(7)(c)(6) and 10.53(3)(q)).
Limited project status may be needed, however, for response actions such as Release
Abatement Measures (RAMs), even though they are designed for relatively minor levels of
contamination. RAMs can have large wetland impacts: e.g., diverting contaminated ground
or surface water in a manner that drains wetlands, building an access road through a wetland
in order to reach a work site, etc. It should be noted that RAMs -- and all other remediation
and containment measures except IRAs and Comprehensive Response Actions (described in
the next paragraph) -- are not mandated, although they are allowed, by 310 CMR 40.0000.
Only Comprehensive Response Actions (CRAs) -- and not RAMs or other remedial
actions -- are required under 310 CMR 40.0000 to be selected on the basis of an alternatives
analysis that gives significant consideration to wetland impacts. Therefore, selection of the
particular CRA technology or methodology (e.g., pump and treat, dredge and fill, etc.) may
be made without performing the additional alternatives analysis normally required under
provisions of 310 CMR 10.24(7)(c)6.a. and 10.53(3)(q)1. However, the design,
construction, implementation, and operation of all OHM-related limited projects, including
CRAs, RAMs, etc., must meet specific performance standards, including maximum practicable
avoidance, minimization and mitigation of adverse wetland impacts (see 310 CMR
10.24(7)(c)6.b. and 10.53(3)(q)2.).
Finally, it is important to note that since only the most seriously contaminated sites will have
BWSC oversight, the language of the limited project gives conservation commissions and the
DEP Wetlands Program the authority to deny limited project status for any proposed project
that clearly does not comply with 310 CMR 40.0000. Needless to say, such a conclusion will
generally be very difficult to reach for persons who don't have considerable expertise in oil or
hazardous materials issues, and the Department does not anticipate that claims of compliance
with the standards of 310 CMR 40.0000 will be rejected by conservation commissions or the
Wetlands Program in many cases. The Wetlands Program does intend, however, to work with
DEP's Bureau of Waste Site Cleanup to examine projects applying for limited project status
if it has reason to believe the project was not selected or designed in compliance with 310
Wetland Regulation: Preface Appendices – May 2008 51
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10/3/97 (Effective 10/6/97)310 CMR - 472.4
CMR 40.0000.
Wetland Regulation: Preface Appendices – May 2008 52
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
10/3/97 (Effective 10/6/97)310 CMR - 472.5
Preface: continued
Revisions in Wetland Emergency Procedures Regarding Releases of OHM
310 CMR 40.0000 allows certain Immediate Response Actions (IRAs) to commence
prior to written approval, and in some cases up to 24 hours before oral approval from BWSC,
"where the delay involved in notifying and obtaining approval from the Department would
substantially exacerbate release or site conditions or endanger health, safety, public welfare or
the environment." Consequently, the revised regulations state (see revisions to 310 CMR
10.06(7)) that projects in these two categories shall be given up to 48 hours (but never more
than 24 hours after BWSC has orally approved commencement of the work) to make a
request for a Wetlands Emergency Certification with the conservation commission. Work on
these types of projects is allowed to continue pending a decision on the request for Emergency
Certification by the conservation commission or the DEP Wetlands Program on appeal. In
cases where a conservation commission denies, or fails to act within 24 hours of a requests for
Emergency Certification for these types of projects, the DEP Wetlands Program will review
requests for emergency certification and issue a decision within seven days. It should be noted,
however, that all of these types of emergency projects will have received at least oral approval
from the Department's Bureau of Waste Site Cleanup within 24 hours of commencement.
Immediate Response Actions which are not so urgent as to be eligible for oral approval
from BWSC are not be covered by the special provisions stated in the preceding paragraph.
However, all emergency certifications granted for Immediate Response Actions are valid for
up to 60 days, rather than the 30 day maximum for non-hazardous waste emergency projects
(see revisions to 310 CMR 10.06(3)). The Department is doing this to make the Wetland
Protection Act Regulations more consistent with 310 CMR 40.0000, and to encourage quick
OHM clean-ups without excessive process.
To determine whether, and under what conditions, the Department's Bureau of Waste Site
Cleanup (BWSC) has given written or oral approval to an Immediate Response Action,
conservation commissions can call DEP's BWSC release notification unit the appropriate DEP
regional office. If that office is closed, a person from that unit can be paged by calling the
Massachusetts State Police at 617-566-4500. The current phone numbers for the
Department's regional offices are: Northeast: 617-935-2160; Southeast: 508-946-2700;
Central: 508-792-7650; and Western: 413-784-1100.
Wetland Regulation: Preface Appendices – May 2008 53