(1)
Preamble.
Bordering Vegetated Wetlands are likely to be significant to public or private
water supply, to ground water supply, to flood control, to storm damage
prevention, to prevention of pollution, to the protection of fisheries and to
wildlife habitat.
The plants and soils of Bordering Vegetated Wetlands remove
or detain sediments, nutrients (such as nitrogen and phosphorous) and toxic
substances (such as heavy metal compounds) that occur in run-off and flood
waters.
Some nutrients and toxic substances are detained for years in
plant root systems or in the soils. Others are held by plants during the
growing season and released as the plants decay in the fall and winter. This
latter phenomenon delays the impacts of nutrients and toxins until the cold
weather period, when such impacts are less likely to reduce water
quality.
Bordering Vegetated Wetlands are areas where ground water
discharges to the surface and where, under some circumstances, surface water
discharges to the ground water.
The profusion of vegetation in Bordering Vegetated Wetlands
acts to slow down and reduce the passage of flood waters during periods of peak
flows by providing temporary flood water storage and by facilitating water
removal through evaporation and transpiration. This process reduces downstream
flood crests and resulting damage to private and public property. During dry
periods the water retained in Bordering Vegetated Wetlands is essential to the
maintenance of base flow levels in rivers and streams, which in turn is
important to the protection of water quality and water supplies.
The Act defines freshwater wetlands by hydrology and
vegetation. Hydrology is the driving force which creates wetlands, but it is a
transient, temporal parameter. The presence of water at or near the ground
surface during a significant portion of the year supports, and in fact
promotes, the growth of wetland indicator plants. Prolonged or frequent
saturation or inundation also produces hydric soils, and creates anaerobic
conditions that favor the growth of wetland indicator plants. Hydric soils are
direct indicators of long-term hydrologic conditions and are present throughout
the year.
Wetland vegetation supports a wide variety of insects,
reptiles, amphibians, small mammals and birds which are a source of food for
important game fish. Bluegills (Lepomis macrochirus), pumpkinseeds (Lepomis
gibbosus), yellow perch (Perca flavescens), rock bass (Ambloplites rupestris)
and all trout species feed upon nonaquatic insects. Large-mouth bass
(Micropterus salmoides), chain pickerel (Esox niger) and northern pike (Esox
lucius) feed upon small mammals, snakes, nonaquatic insects, birds and
amphibians.
Wetland vegetation provides shade which moderates water
temperatures important to fish life. Wetlands flooded by adjacent water bodies
and waterways provide food, breeding habitat and cover for fish. Fish
populations in the larval stage are particularly dependent upon food provided
by over-bank flooding which occurs during peak flow periods (extreme storms)
because most river and stream channels do not provide sufficient quantities of
the microscopic plant and animal life required for food.
Bordering vegetated wetlands are probably the Commonwealth's
most important inland habitat for wildlife. The hydrologic regime, plant
community composition and structure, soil composition and structure,
topography, and water chemistry of bordering vegetated wetlands provide
important food, shelter, migratory and overwintering areas, and breeding areas
for many birds, mammals, amphibians and reptiles. A wide variety of vegetated
wetland plants, the nature of which are determined in large part by the depth
and duration of water, as well as soil and water composition, are utilized by
varied species as important areas for mating, nesting, brood rearing, shelter
and food (directly and indirectly). The diversity and interspersion of the
vegetative structure is also important in determining the nature of its
wildlife habitat. Different habitat characteristics are used by different
wildlife species during summer, winter and migratory seasons.
Although the vegetational community can often be analyzed to
establish an accurate wetland boundary, sole reliance on the presence of
wetland indicator plants can be misleading because some species thrive in both
uplands and wetlands. Gently sloping areas often produce large transitional
zones where the vegetational boundary is difficult to delineate. Hydrology can
supplement vegetative criteria to enhance the technical accuracy, consistency,
and credibility of wetland boundary delineations, and are especially useful for
analyzing disturbed sites.
(2)
Definition, Critical
Characteristics and Boundary.
(a)
Bordering Vegetated Wetlands are freshwater wetlands which border on creeks,
rivers, streams, ponds and lakes. The types of freshwater wetlands are wet
meadows, marshes, swamps and bogs. Bordering Vegetated Wetlands are areas where
the soils are saturated and/or inundated such that they support a predominance
of wetland indicator plants. The ground and surface water regime and the
vegetational community which occur in each type of freshwater wetland are
specified in M.G.L. c. 131, § 40.
(b) The physical characteristics of Bordering
Vegetated Wetlands, as described in 310 CMR
10.55(2)(a), are critical to the
protection of the interests specified in 310 CMR
10.55(1).
(c) The boundary of Bordering Vegetated
Wetlands is the line within which 50% or more of the vegetational community
consists of wetland indicator plants and saturated or inundated conditions
exist. Wetland indicator plants shall include but not necessarily be limited to
those plant species identified in the Act. Wetland indicator plants are also
those classified in the indicator categories of Facultative, Facultative+,
Facultative Wetland-, Facultative Wetland, Facultative Wetland+, or Obligate
Wetland in the National List of Plant Species That Occur in Wetlands:
Massachusetts (Fish & Wildlife Service, U.S. Department of the Interior,
1988) or plants exhibiting physiological or morphological adaptations to life
in saturated or inundated conditions.
1. Areas
containing a predominance of wetland indicator plants are presumed to indicate
the presence of saturated or inundated conditions. Therefore, the boundary as
determined by 50% or more wetland indicator plants shall be presumed accurate
when:
a. all dominant species have an
indicator status of obligate, facultative wetland+, facultative wetland, or
facultative wetland- and the slope is distinct or abrupt between the upland
plant community and the wetland plant community;
b. the area where the work will occur is
clearly limited to the buffer zone; or
c. the issuing authority determines that sole
reliance on wetland indicator plants will yield an accurate
delineation.
2. When the
boundary is not presumed accurate as described in 310 CMR
10.55(2)(c)1.a.
through c. or to overcome the presumption, credible evidence shall be submitted
by a competent source demonstrating that the boundary of Bordering Vegetated
Wetlands is the line within which 50% or more of the vegetational community
consists of wetland indicator plants and saturated or inundated conditions
exist. The issuing authority must evaluate vegetation and indicators of
saturated or inundated conditions if submitted by a credible source, or may
require credible evidence of saturated or inundated conditions when determining
the boundary. Indicators of saturated or inundated conditions sufficient to
support wetland indicator plants shall include one or more of the following:
a. groundwater, including the capillary
fringe, within a major portion of the root zone;
b. observation of prolonged or frequent
flowing or standing surface water;
c. characteristics of hydric soils.
3. Where an area has been
disturbed (e.g. by cutting, filling, or cultivation), the boundary is the line
within which there are indicators of saturated or inundated conditions
sufficient to support a predominance of wetland indicator plants, a
predominance of wetland indicator plants, or credible evidence from a competent
source that the area supported or would support under undisturbed conditions a
predominance of wetland indicator plants prior to the
disturbance.
(4)
General Performance
Standards.
(a) Where the
presumption set forth in 310 CMR
10.55(3) is not overcome, any proposed work in
a Bordering Vegetated Wetland shall not destroy or otherwise impair any portion
of said area.
(b) Notwithstanding
the provisions of 310 CMR
10.55(4)(a), the issuing authority may issue an Order
of Conditions permitting work which results in the loss of up to 5000 square
feet of Bordering Vegetated Wetland when said area is replaced in accordance
with the following general conditions and any additional, specific conditions
the issuing authority deems necessary to ensure that the replacement area will
function in a manner similar to the area that will be lost:
1. the surface of the replacement area to be
created ("the replacement area") shall be equal to that of the area that will
be lost ("the lost area");
2. the
ground water and surface elevation of the replacement area shall be
approximately equal to that of the lost area;
3. The overall horizontal configuration and
location of the replacement area with respect to the bank shall be similar to
that of the lost area;
4. the
replacement area shall have an unrestricted hydraulic connection to the same
water body or waterway associated with the lost area;
5. the replacement area shall be located
within the same general area of the water body or reach of the waterway as the
lost area;
6. at least 75% of the
surface of the replacement area shall be reestablished with indigenous wetland
plant species within two growing seasons, and prior to said vegetative
reestablishment any exposed soil in the replacement area shall be temporarily
stabilized to prevent erosion in accordance with standard U.S. Soil
Conservation Service methods; and
7. the replacement area shall be provided in
a manner which is consistent with all other General Performance Standards for
each resource area in Part III of
310 CMR
10.00. In the exercise of this discretion, the issuing
authority shall consider the magnitude of the alteration and the significance
of the project site to the interests identified in M.G.L. c. 131, § 40,
the extent to which adverse impacts can be avoided, the extent to which adverse
impacts are minimized, and the extent to which mitigation measures, including
replication or restoration, are provided to contribute to the protection of the
interests identified in M.G.L. c. 131, § 40.
(c) Notwithstanding the provisions of 310 CMR
10.55(4)(a), the issuing authority may issue an Order of Conditions permitting
work which results in the loss of a portion of Bordering Vegetated Wetland
when;
1. said portion has a surface area less
than 500 square feet;
2. said
portion extends in a distinct linear configuration ("finger-like") into
adjacent uplands; and
3. in the
judgment of the issuing authority it is not reasonable to scale down, redesign
or otherwise change the proposed work so that it could be completed without
loss of said wetland.
(d) Notwithstanding the provisions of 310 CMR
10.55(4)(a),(b) and (c), no project may be permitted which will have any
adverse effect on specified habitat sites of rare vertebrate or invertebrate
species, as identified by procedures established under
310 CMR
10.59.
(e) Any proposed work shall not destroy or
otherwise impair any portion of a Bordering Vegetated Wetland that is within an
Area of Critical Environmental Concern designated by the Secretary of Energy
and Environmental Affairs under M.G.L. c. 21A, § 2(7) and
301 CMR
12.00: Areas of
Critical Environmental Concern. 310 CMR
10.55(4)(e):
1. supersedes the provisions of 310 CMR
10.55(4)(b) and (c);
2. shall not
apply if the presumption set forth at 310 CMR
10.55(3) is overcome;
3. shall not apply to work proposed under
310 CMR
10.53(3)(l); and
4. shall not apply to maintenance of
stormwater detention, retention, or sedimentation ponds, or to maintenance of
stormwater energy dissipating structures, that have been constructed in
accordance with a valid order of conditions.
