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Disclaimer: We are not legal experts. We have learned what we know about the Massachusetts Wetlands Protection Act by working with the public and with local and state regulators. BEAT suggests that you consult the actual texts of the laws and regulations or the local and state agencies responsible for administering and enforcing these laws and regulations if you have legal questions.
1. Understanding the regulatory process.
The Massachusetts Wetlands Protection Act is one of the most useful tools we have for protecting our wetlands. This law (and the Wetlands Protection Act Regulations, which are the rules for implementing the law) describe the resources that are protected, and the specific protections that are provided. The local agency responsible for enforcing this act and its accompanying regulations is the town’s or city’s Conservation Commission, which is a volunteer board of between three and seven members, appointed by the select board or city council. Members serve three-year terms. Every town and city in Massachusetts has a Conservation Commission. At the state level, the Massachusetts Department of Environmental Protection (DEP) has responsibility for enforcing the Act.
The regulatory process often begins when new work is proposed and a wetland is nearby. The work may be a simple backyard project or major industrial construction. The first question is often, “Does the Wetlands Protection Act restrict or prohibit this proposed work?” (Sometimes a wetland delineation must be made in order to answer this question.) If the answer is “yes,” the project must be reviewed by the local Conservation Commission. But how do you know whether the Wetlands Protection Act applies to your project?
When in doubt, ask your local Conservation Commission to make a determination. The official procedure for making this request is to file a Request for Determination of Applicability (RDA). Anyone (e.g., property owner, contractor, neighbor, concerned citizen) may file an RDA. In effect, the filing of this document asks, “Does my project require a permit under the Wetlands Protection Act?”
Upon receiving an RDA, a Conservation Commission must schedule a public meeting within 21 days. Sometimes no special scheduling is needed, because some Conservation Commissions hold regularly scheduled public meetings. This public meeting must be advertised in a local newspaper (at the expense of the person making the request) at least 5 days prior to the meeting. The commission should (but isn’t required to) make a site visit before the meeting to prepare for their evaluation of the proposed work.
At the public meeting, the commission will review the facts related to the proposed work and make a determination as to whether or not the project falls under the jurisdiction of the Wetlands Protection Act. The public must be given an opportunity to provide input at these meetings.
The commission’s determination is usually made and announced at the same meeting, although the commission does have 21 days to make their determination and will sometimes continue discussion to a later public meeting. The commission’s determination is reported to the Massachusetts Department of Environmental Protection on DEP’s Determination of Applicability form, available on DEP’s website.
There are two possible determinations the commission can make. The commission can make a negative determination, saying that the project is not subject to regulation under the Wetlands Protection Act. If the commission makes this determination, the work may begin without a permit from the Conservation Commission, but only after a 10 day period which allows time for others to file an appeal of the commission’s decision.
A positive determination indicates that the proposed work is subject to regulation under the Wetlands Protection Act and requires a permit from the Conservation Commission to continue. The applicant must now file a Notice of Intent (NOI) with both the Conservation Commission and the Massachusetts Department of Environmental Protection (DEP) indicating an intent to perform work in or near a wetland and requesting a permit for that work. The NOI must contain enough supporting material to allow the commission and members of the public to evaluate possible impacts of the work on the wetland. Sometimes an NOI is filed without ever bothering with the RDA. This is usually done when the applicant knows that the work is regulated under the Wetlands Protection Act.
Upon receiving an NOI, the Conservation Commission must schedule a public hearing within 21 days. The hearing must be advertised in a local newspaper (at the expense of the applicant), and all abutters of the property on which the work is being done must be notified in writing by the applicant. Before the public hearing, the commission members should review the NOI and its supporting material in preparation for their evaluation of the project.
At the public hearing, the Conservation Commission will review proof of abutter notification provided by the applicant, question the applicant, and review the NOI and its supporting documents to evaluate the project’s likely impact on the nearby wetland. The public must be given an opportunity to make comments and ask questions at this hearing. Based on this discussion and review, the commission may determine that it needs more information before it can reach a decision. They may then require the applicant to provide further information and continue the hearing to a later date. The hearing may not be continued beyond 21 days without the permission of the applicant, however if the applicant refuses the commission’s request for more information, the commission may deny the permit.
If the commission determines that it does have enough information, it has 21 days to issue or deny a permit for the work, although the commission may decide to make the decision right away.
The Conservation Commission may decide that the proposed work does not meet the requirements of the Wetlands Protection Act and deny the permit. This decision may be appealed by the applicant.
The commission may also decide that the proposed work will not endanger the nearby wetlands as long as the work proceeds subject to certain conditions. If this is their determination, they issue an Order of Conditions. This is the permit for the proposed work, and it is often referred to as the permit.
The Order of Conditions lists any conditions the commission is placing on the work in order to protect the wetland. There is a 10-day appeal period before the work may proceed. During this time, the commission’s decision may be appealed by the applicant, an abutter, any affected individual, or any 10 citizens of the town.
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