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.
There are many reasons for protecting wetlands. The Wetlands Protection Act defines nine of these reasons and calls them “the interests of the act.”
The Nine Interests Of The Act
(Reasons For Protecting Wetlands)
| Public water supplies | Private water supplies | Groundwater supplies |
| Flood control | Storm damage prevention | Prevention of pollution |
| Protection of land containing shellfish* | Protection of wildlife habitat | Protection of fisheries |
* Includes only marine shellfish, but rivers may contribute to the health of shellfish populations.
The act also defines 10 types of wetlands, called “resource areas.”
Resource Areas (Types of Wetlands)
| Freshwater wetlands** | Land subject to flooding | Riverfront areas |
| Banks | Land under water | Land subject to coastal storm flowage* |
| Coastal wetlands* | Coastal beaches* | Land subject to tidal action* |
| Coastal dunes* |
*Not an issue in Berkshire County since we are not a coastal area.
** Includes flats, swamps, and marshes
Any action that alters a resource area (type of wetland), is presumed to have an impact on one or more of the nine interests of the act (reasons for protecting wetlands) and requires a permit (Order of Conditions). The act requires that the Conservation Commission use the permitting process to “…impose such conditions as will contribute to the protection of the interests.” Note that the law presumes that work in a wetland will have an impact. The conservation commission does not have to prove that work in the wetland will have an impact. The burden of proof is on the applicant to prove that work will not have an impact.
What Are The Types Of Protected Wetlands (Resource Areas)?
Riverfront Areas
Areas within 200 feet of a perennial stream’s or river’s mean annual high water are protected. In order to work in a riverfront area, the applicant must show that there is no practicable and substantially equivalent economic alternative to the proposed work. The applicant must also show that the proposed work will not create a significant adverse impact on any of the interests of the act.
Bordering Vegetated Wetlands
(Freshwater Wetlands including Marshes and Swamps)
If an area is a freshwater wetland, and if it borders a body of water*, it is called a “bordering vegetated wetland” and is protected under the Wetlands Protection Act. An area is considered a wetland if at least 50% of its vegetation is of the type that typify wetlands. The act provides a partial list of these wetlands species (called wetland indicator species).
The wetland may actually extend beyond the point at which the wetland vegetation falls below 50%. In fact, a wetland may have no wetland plants at all. Soils that are continually saturated with water change their characteristics and become what soil scientists call hydric soils. Hydric soils are an indicator of wetlands even when wetland plants are absent. For this reason, the presence of hydric soils is another definitive indicator of wetlands.
For more information on wetlands delineation and on wetlands indicator species, see Delineating Vegetated Bordering Wetlands Under the Massachusetts Wetlands Protection Act by the Massachusetts Department of Environmental Protection.
Bordering Land Subject To Flooding
(Land In The Floodplain)
If an area is within the 100-year floodplain (an area whose statistical likelihood of flooding in any given year is 1% or greater), and if it borders a body of water, it is called “bordering land subject to flooding” and is protected under the Wetlands Protection Act. The limits of the 100-year floodplain can be determined by consulting maps published by the Federal Emergency Management Agency (FEMA), although accounts of observations of flooding can in some cases be used as evidence also. FEMA maps can often be obtained from a town’s or city’s Engineering Department. A registered professional engineer may also survey an area to determine the extent of the floodplain.
Isolated Land Subject To Flooding
Land that is subject to flooding may be protected even if it does not border a body of water. To be protected as “isolated land subject to flooding,” the land must be an isolated depression (i.e., it is not connected to a stream or other body of water) that contains a quarter acre-foot of water, the average depth of this water is at least 6 inches, and the land floods to this level at least once a year. (A quarter acre-foot of water is the amount of water contained in one acre of land flooded to a depth of 3 inches, or the amount of water contained in a quarter acre of land flooded to a depth of one foot. This amount of water is equal to 43,560 cubic feet of water.)
Temporary Ponds
Temporary ponds are protected only if they also fall in the category of isolated land subject to flooding or are in the 100-year floodplain. However, they may be protected if they are vernal pools, and especially if they have been certified as vernal pools.
Banks
Banks include not only the banks of flowing water such as rivers and streams, but also the banks of lakes and ponds. Intermittent streams are jurisdictional if they occur below a jurisdictional wetland.
Land Under Water
Land under water includes land under flowing water and land under ponds and lakes. Building a pier or dock that extends into the water or constructing supports for bridges that cross bodies of water are examples of projects involving land under water. Protection of land under water also includes prohibitions against adding fill to streams, rivers, ponds, lakes, and other bodies of water.
*For the pupose of the Wetlands Protection Act, “bodies of water” means ocean, estuaries, creeks, rivers, streams (including intermittent streams), ponds (larger than 10,000 square feet), and lakes. In Berkshire County we have no ocean and no estuaries.
When we say that an area is protected under the Wetlands Protection Act, we mean that any work in one of these areas or that has an impact on one of these areas must have a permit from the local Conservation Commission. It’s often (but not always) easy to determine if you are in one of these protected resource areas and have to file a Notice of Intent. And if you’re not sure, you can file a Request for Determination of Applicability and have the Conservation Commission make a determination. But what if you’re working outside of but close to one of these protected areas? You’re not allowed to perform work that will impact one of these areas, so how do you know when you’re too close for the kind of work you intend to do?
Buffer Zones
A buffer zone is an area that extends out 100 feet from the edges of bordering vegetated wetlands and from the banks of bodies of water. If you are working in one of these areas, you have to appear before the Conservation Commission so that they can provide you with guidelines and restrictions that will ensure that your work does not have an impact on the nearby wetland.
Even if you are working beyond the buffer zone, you are not allowed to impact the wetland. In the case of work outside the buffer zone, the moment your work impacts a protected wetland, you are in violation of the act and subject to an Enforcement Order.
The impact a project will have on the environment depends on many factors, but one of those factors is the type of wetlands in the immediate area. For instance, working directly in a river may have an effect on fisheries, while working near a swamp is more likely to have an effect on flood control. The table below indicates what aspect of the environment is presumed to be effected when one of the types of wetlands is disturbed. In the language of the Wetlands Protection Act, the types of wetlands are called “resource areas,” and the aspects of the environment are called “interests of the act.” We’ve listed only those resource areas that exist in Berkshire County.
Does Working in the Resource Area Have An Environmental Impact On the Interest? (Adapted from Mass Audubon)
| Resource | Public Water | Private Water | Ground Water | Flood Ctrl | Storm Dmg | Pollution | Fisheries | Shellfish | Habitat |
| Bank | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | Yes |
| Bordering Vegetated Wetland | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | Yes |
| Land Under Water | Yes | Yes | Yes | Yes | Yes | Yes | Yes | No | Yes |
| Bordering Land Subject to Flooding | No | No | No | Yes | Yes | No | No | No | Yes |
| Isolated Land Subject to Flooding |
Yes3 | Yes3 | Yes3 | Yes | Yes | Yes4 | No | No | Yes5 |
| Riverfront Area | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes | Yes |
Key to abbreviations used in above table.
| Public Water: Public Water Supply | Private Water: Private Water Supply | Ground Water: Ground Water Supply |
| Flood Ctrl: Flood Control | Storm Dmg: Storm Damage Prevention | Pollution: Prevention of Pollution |
| Fisheries: Fisheries | Shellfish: Land Containing Shellfish | Habitat: Protection of Wildlife Habitat |
1. If the bank or the land under the body of water is impervious (for instance, if it’s pavement) then the resource area is significant to flood control and storm damage prevention only.
2. Only if it’s in the 10-year floodplain or if it’s a vernal pool within the 100-year floodplain.
3. Not if impervious (for instance a paved area).
4. Only if peat and mud.
5. Only if the isolated land is a vernal pool.
A “Yes” in a box of the table means that work in that resource area is presumed to have an impact on that interest. For example, if you do work in bordering land subject to flooding, your work is presumed to have an impact on flood control and storm damage prevention, and may also have an impact on wildlife habitat. The burden of proof is on the person performing the work to overcome this presumption, and that isn’t easy. If a Conservation Commission can be convinced that yours is an unusual circumstance, and that the proposed work would not have an impact on any interest of the act, that Conservation Commission must file a form with the Massachusetts Department of Environmental Protection (DEP) explaining their position.
For each resource area, there are performance standards (see next page) that provide guidance on how to best protect that resource area and minimize any impact on the interests related to it.
The following performance standards specify how each resource area must be protected thereby minimizing any impact on the interests of the act (unless the applicant has successfully argued that work in the resource area will not affect any interest of the act, which is almost unheard of).
| Bank | Bordering Vegetated Wetland |
| Land Under Water | Bordering Land Subject To Flooding |
| Isolated Land Subject To Flooding | Riverfront Area |
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:
- 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),
- stormwater is managed according to DEP’s Stormwater Policy,
- appropriate erosion and sedimentation controls and other measures for reducing nonpoint source pollution are used to prevent impairment of groundwater and surface water quality,
- a 100-foot-wide area of undisturbed vegetation is provided along the edge of the river, and
- 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:
- the work isn’t prohibited by other local and state regulations, and
- 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:
- the lot can be developed for such purposes and cannot be developed for other purposes under state and local law,
- the area is not considered “redevelopment,” and
- the above riverfront-area rules are implemented to the greatest extent feasible.