Wetlands are found throughout the state, from the Atlantic coast to the Berkshires. Wetlands help clean drinking water supplies, prevent flooding and storm damage, and support a variety of wildlife.
What are wetlands? Coastal wetlands are directly adjacent to the ocean and include beaches, salt marshes, dunes, coastal banks, rocky intertidal shores, and barrier beaches. Inland wetlands are areas where water is at or just below the surface of the ground. Although these wetlands can appear dry during some seasons, they contain enough water to support certain plants and soils. Inland wetlands include marshes, wet meadows, bogs, and swamps.
While we now recognize the benefits of wetlands, that recognition has come late. Since Colonial times, almost one third of Massachusetts’ wetlands have been destroyed. Concerned about the loss of wetlands, Massachusetts adopted the nation’s first wetlands protection laws in the early 1960s. Today, wetlands are protected by state and federal laws.
Wetlands Protection Program
The Wetlands Protection Act [Massachusetts General Laws (MGL) Chapter 131, Section 40] protects wetlands and the public interests they serve, including flood control, prevention of pollution and storm damage, and protection of public and private water supplies, groundwater supply, fisheries, land containing shellfish, and wildlife habitat. These public interests are protected by requiring a careful review of proposed work that may alter wetlands. The law protects not only wetlands, but other resource areas, such as land subject to flooding (100-year floodplains), the riverfront area (added by the Rivers Protection Act), and land under water bodies, waterways, salt ponds, fish runs, and the ocean.
At the local level, the community’s conservation commission administers the Wetlands Protection Act. The commission is a volunteer board of three to seven members appointed by the selectmen or city council. On the state level, the Department of Environmental Protection (MassDEP) oversees administration of the law. MassDEP develops regulations and policies, and provides technical training to commissions. MassDEP also hears appeals of decisions made by commissions.
The conservation commission ensures that proposed activities will not alter resource areas and the public interests they provide by reviewing projects on a case-by-case basis according to regulations [310 Code of Massachusetts Regulations (CMR) 10.00]. The regulations describe how each type of resource area provides one or more of the public interests. The regulations also spell out the type and extent of work allowed in resource areas. Proposed work must meet these standards. This information helps landowners and developers plan their work and helps commissions apply the law to specific projects.
The law regulates many types of work in resource areas, including vegetation removal, regrading, and construction of houses, additions, decks, driveways, and commercial or industrial buildings. If you want to work in a wetland resource area or within 100 feet of a wetland (an area called the buffer zone), contact the conservation commission before you start work.
If you are unsure whether your proposed work site is in a resource area or whether the work will alter a resource area, you can apply for a Request for Determination of Applicability. If the conservation commission determines that the work will alter a resource area, you must file an application, called a Notice of Intent (NOI), and pay an application fee.
The NOI requires a plan describing the details of the proposed project, location of wetland resource areas and buffer zones, and measures to be taken to protect them. This information can be found in the regulations and application instructions. Contact the conservation commission for guidance on the content and detail needed in plans.
The commission will visit the site to verify the resource area boundaries on the property. At a public hearing on the project, the applicant may present information, and abutters and other members of the public may ask questions.
Following the hearing, the commission will issue a permit, called an Order of Conditions. The Order will either approve the project — with special conditions that will protect the public interests — or deny the project if impacts to resource areas cannot be avoided or mitigated.
The applicant, landowner, any aggrieved person, abutter, group of 10 citizens, or MassDEP may appeal the local commission’s decision to MassDEP.
Wetlands Conservancy Program
The Department of Environmental Protection’s Wetlands Conservancy Program is mapping the state’s wetlands using aerial photography and photointerpretation to delineate wetland boundaries. The Program produces maps identifying wetlands that are one quarter acre or larger in size. DEP uses these maps to document the extent and condition of the state’s wetlands and to improve coordination among regulatory programs on wetland and water quality issues.
The Program supplies this vital resource information to communities. When the maps for a city or town have been completed, MassDEP gives a set to the conservation commission. Commissions have found the maps useful in creating local wetland inventories, cross-checking permit application plans, and assisting in enforcement. The wetland maps also are a valuable planning tool for other municipal boards, planning agencies, landowners, and consultants. Additional copies of the maps are available for purchase. (Note: wetland delineations developed in this inventory are photointerpreted and do not substitute for the delineation information required under the wetland regulations.)
The Program also is mapping eelgrass beds along the coast. These important wetland resources serve as nursery areas for finfish and shellfish, filter pollutants, and buffer the shoreline from waves. Since these habitats are negatively affected by pollution, they are good indicators of water quality along the coast. This valuable resource information is being shared with communities and other state agencies.
Permanent restriction orders have been placed on selected wetlands in over 50 communities under the Inland and Coastal Wetlands Restriction Acts (MGL Chapter 131, Section 40A, and MGL Chapter 130, Section 105). The restriction orders provide added protection for selected wetlands by prohibiting certain activities in advance of any work being proposed. The regulations for these laws are 310 CMR 13.00 (inland) and 310 CMR 12.00 (coastal).
The restriction orders have been recorded at the Registries of Deeds in the counties where the properties are located to inform future landowners of the restriction. Affected municipalities should have copies of the community’s restricted wetlands plans and restriction orders.
Restriction orders are implemented through the Wetlands Protection Act permitting process. A landowner proposing work in a restricted wetland must file a Notice of Intent (NOI) and check the appropriate box on the form. Upon receipt of the NOI, the conservation commission and MassDEP regional office should check their copies of the restricted wetlands plans and restriction orders to determine if work is proposed in a restricted wetland and if the work is allowed under the restriction order. Orders of Conditions must not allow work that is prohibited by a restriction order.
401 Water Quality Certification Program Under Section 401 of the federal Clean Water Act, activities proposing discharges to water bodies or wetlands require a state Water Quality Certification. MassDEP must certify that projects requiring federal permits will not violate the state’s water quality standards, which include protection for wetlands. Discharges include dredging, filling, and other activities that cause the loss of wetlands, and require permits from the U.S. Army Corps of Engineers (Corps). The Corps has established a simplified permit system in Massachusetts.
The regulations for the 401 Water Quality Certification Program (314 CMR 9.00) have been coordinated with the Wetlands Protection Act regulations. As a result, most projects approved by the local conservation commission under the Wetlands Protection Act do not need further state review under the 401 Program. These projects are automatically certified when they obtain an Order of Conditions.
However, some types of projects, including those with potentially large wetland impacts and those that are not subject to the Wetlands Protection Act, require a 401 application review. In these cases, MassDEP may require additional protection for wetlands where necessary to ensure compliance with the water quality standards.
MassDEP’s Wetlands Protection Program reviews 401 applications for wetland projects. MassDEP notifies the applicant when he or she files a Notice of Intent if the project also requires a 401 application. Landowners with projects that are not subject to the Wetlands Protection Act should contact DEP for 401 application information. The 401 Program and wetlands program procedures have been coordinated to streamline review. When appropriate, applicants are encouraged to submit both applications simultaneously and to design projects which meet the standards of both programs.