Massachusetts Wetlands Protection Act: 5

Bank
The Wetlands Protection Act prohibits any work that would impair the physical stability of a bank. Also, work on a bank may not impair the bank’s ability to act as a breeding or feeding area for fish or as an area fish can use to find cover when escaping from predators. Work on a bank may not impair the quality of groundwater or of surface water. If the bank is the bank of a stream or river, work on the bank may not reduce the carrying capacity of the stream or river.

One important function of a bank, whether it’s a bank of a river, stream, lake, or other water body, is its ability to provide wildlife habitat. The Wetlands Protection Act prohibits work that impairs a bank’s ability to provide wildlife habitat. However, if the work affects less than 10% of the part of the bank that provides wildlife habitat, or if it affects less than 50 feet of the part of the bank that provides wildlife habitat (whichever is less), the work may be allowed. The act prohibits applicants from filing applications for multiple projects, each one altering less than 10% or 50 feet of a bank, but cumulatively exceeding this limit. All projects filed after November 1, 1987 on a given parcel of land are counted toward the 10% or 50 feet.

In some cases, work may be allowed despite the above protections to prevent flood damage to facilities, buildings, and roads. However, there are restrictions even on this kind of project. First, the facilities buildings, and roads being protected by the work on the bank must have been constructed prior to April 1, 1983. Any substantial enlargement of the structure after that date does not get the same protection as the rest of the structure. Second, the work must be designed and implemented using best practical measures so as to minimize adverse effects on resource areas. Third, the applicant must demonstrate that there is no reasonable method of protecting, renovating, or rebuilding the facility in question other than the one proposed.

It should be noted that if the proposed work will have an adverse effect on specified wildlife habitat sites of rare vertebrate or invertebrate species, the work will not be permitted, even if the work affects less than 10% of the wildlife habitat, less than 50 feet of the wildlife habitat, or is intended to prevent damage to facilities, building, or roads.
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Bordering Vegetated Wetland:

The Wetlands Protection Act prohibits any work that would destroy or impair any portion of a bordering vegetated wetland. There are two exceptions to this rule however. The first involves wetland replication. A Conservation Commission may allow an applicant to destroy some or all of a bordering vegetated wetland, up to 5,000 square feet, if they replicate that wetland in another location agreed upon by the commission. There are guidelines provided on creating this replication. The second exception involves wetlands that have an unusual, narrow, fingerlike shape and an area of less than 500 square feet. A Conservation Commission may decide that it is not reasonable to scale down a project to protect this wetland. It should be noted that neither of the two exceptions apply if the wetland is also a specified habitat site of a rare species of vertebrate or invertebrate or if the area is within an Area of Critical Environmental Concern.
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Land Under Water
Land under water can be land under a lake or pond, or it could be land under flowing water, such as a river or stream. Work on any land under water may not impair the land’s ability to act as a breeding or feeding area for fish or as an area fish can use to find cover when escaping from predators. Work on land under water may not impair the quality of groundwater or of surface water. The Wetlands Protection Act prohibits any work that would reduce the water carrying capacity within a channel. The word “channel” in this case includes not only flowing water such as streams and rivers, but also includes lakes, ponds, and reservoirs. The act prohibits any reduction in flow rate or volume in flowing water, and any reduction in the volume of a lake, pond, or reservoir unless an equal volume or rate is provided in close proximity to the work area (this allowance of compensation is at the discretion of the local Conservation Commission and DEP).

One important function of land under water, whether it’s under a river, stream, lake, or other water body, is its ability to provide wildlife habitat. The Wetlands Protection Act prohibits work that impairs the land’s ability to provide wildlife habitat. However, if the work affects less than 10% of the wildlife habitat in the resource area, or if it affects less than 5,000 square feet of the habitat in the resource area (whichever is less), the work may be allowed. The act prohibits applicants from filing applications for multiple projects, each one altering less than 10% or 5,000 square feet, but cumulatively exceeding this limit. All projects filed after November 1, 1987 on a given parcel of land are counted toward the 10% or 5,000 square feet.

In some cases, work may be allowed despite the above rules to improve boat channels. However, there are restrictions even on this kind of project. The work must be designed and implemented using best practical measures so as to minimize adverse effects such as the suspension or transport of pollutants, increases in turbidity, the smothering of bottom organisms, the accumulation of pollutants by organisms, or the destruction of fisheries habitat or nutrient source areas.

It should be noted that if the proposed work will have an adverse effect on specified wildlife habitat sites of rare vertebrate or invertebrate species, the work will not be permitted, even if the work affects less than 10% of the wildlife habitat, less than 5,000 square feet of the wildlife habitat, or is intended to improve boat channels.
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Bordering Land Subject To Flooding
[BEAT’s Note: One of the concerns related to building in any land subject to flooding is that the next time the area floods, some water will be displaced by the new building and that water will have to go somewhere. That “somewhere” could be a neighbor’s property or land downstream of the project. Think about filling a pail half-full with water and then adding a brick. The addition of the brick causes the water level in the pail to rise.]

The Wetlands Protection Act prohibits any work that will increase the elevation to which an area will flood, or increase the velocity of water-flow during a flood. However, it does allow for an applicant to create compensatory storage. This means that if you know how much water your project will displace, you can create a new depression that will hold this amount of water in times of flooding. The depression can be a basin or pond, or can be a lowering of an area by grading. The compensation must be in the same area as the displacement caused by the project.

Compensation must be made for each elevation that is affected by the project. For instance, if the project affects elevations between 1,000 feet and 1,020 feet (above sea level), compensation constructed only at 1,020 feet will not protect areas at an elevation of 1,000 feet above sea level. At least some of the compensation must be at 1,000 feet above sea level.

One important function of bordering land subject to flooding is its ability to provide wildlife habitat. The Wetlands Protection Act prohibits work that impairs the land’s ability to provide wildlife habitat. However, if the project does not affect vernal pool habitat, and if the work affects less than 10% of the wildlife habitat in the resource area, or if it affects less than 5,000 square feet of the habitat in the resource area (whichever is less), the work may be allowed. The act prohibits applicants from filing applications for multiple projects, each one altering less than 10% or 5,000 square feet, but cumulatively exceeding this limit. All projects filed after November 1, 1987 on a given parcel of land are counted toward the 10% or 5,000 square feet.

It should be noted that if the proposed work will have an adverse effect on specified wildlife habitat sites of rare vertebrate or invertebrate species, the work will not be permitted, even if the work affects less than 10% of the wildlife habitat or less than 5,000 square feet of the wildlife habitat.
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Isolated Land Subject to Flooding
The Wetlands Protection Act prohibits any work that will cause damage due to filling which causes lateral displacement of water that would otherwise be confined.

It also prohibits work that would have an adverse impact on public and private water supply or ground water supply, if the area is underlain by pervious material. Pervious material is material that allows water to pass through. Sand and soil are pervious materials. Asphalt and cement are impervious. Also, if the area is underlain by pervious material that is covered by a mat of organic peat and muck, the work may not have an adverse impact on the area’s ability to act as a natural filter for the underlying groundwater.

Work is prohibited if the area is a vernal pool area and the work will have an adverse effect on the vernal pool’s ability to provide wildlife habitat.

It should be noted that if the proposed work will have an adverse effect on specified wildlife habitat sites of rare vertebrate or invertebrate species, the work will not be permitted, regardless of underlying material or type and extent of resulting flooding.
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Riverfront Area
The Wetlands Protection Act requires that before building in a riverfront area, an applicant provide evidence that there isn’t a practicable and substantially equivalent economic alternative that is less environmentally damaging.

Alteration of up to 5,000 square feet or 10% (whichever is greater) is permitted on lots recorded before October 6, 1997 at the discretion of the local conservation commission and DEP. A landowner who wishes to subdivide a parcel may be allowed to record a deed restriction that allocates the 5,000 square feet or 10% to the newly created sub-parcels.

On lots recorded after October 6, 1997, alteration of up to 10% may be allowed, provided that:

1. the proposed work does not have an adverse impact on wildlife habitat, or have an adverse impact on vernal pool habitat, even if the vernal pool has not yet been certified (if the work area exceeds 5,000 square feet, the local conservation commission or DEP may require a wildlife habitat evaluation study),
2. stormwater is managed according to DEP’s Stormwater Policy,
3. appropriate erosion and sedimentation controls and other measures for reducing nonpoint source pollution are used to prevent impairment of groundwater and surface water quality,
4. a 100-foot-wide area of undisturbed vegetation is provided along the edge of the river, and
5. stormwater is managed as much as practicable by natural means rather than by structural systems.

Despite the above restrictions, the act does allow in a riverfront area the construction of a single-family house, a septic system (if no sewer is available), and a driveway on lots recorded before August 7, 1996 where the size or shape of the property prevents compliance with the above riverfront-area rules, provided that:

1. the work isn’t prohibited by other local and state regulations, and
2. the above rules are implemented to the greatest extent feasible (a wildlife habitat study is not required unless the work area includes vernal pool habitat or specified habitat sites of rare vertebrates or invertebrates).

Despite the above restrictions, the act does allow in a riverfront area the construction of a commercial structure of minimum feasible dimensions on lots recorded before August 7, 1996 where the size or shape of the property prevents compliance with the above riverfront-area rules, provided that:

1. the lot can be developed for such purposes and cannot be developed for other purposes under state and local law,
2. the area is not considered “redevelopment,” and
3. the above riverfront-area rules are implemented to the greatest extent feasible.

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