974 CMR 4.06 - Wetlands Protection

(1) DEC Powers. Under St. 1993, c. 498, § 11 the DEC has full powers to enforce M.G.L. c. 131, § 40A: Wetlands Protection Act and 310 CMR 10.00: Wetlands Protection.

(2) Purpose. To protect the wetlands and water resources in Devens and adjoining land areas by controlling activities likely to have a significant or cumulative effect on wetland functional values, including but not limited to:

(a) public and private water supply protection;

(b) groundwater supply protection;

(c) flood control;

(d) storm damage prevention;

(e) pollution prevention;

(f) fisheries protection;

(g) wildlife habitat protection;

(h) erosion prevention and sedimentation control.

(3) Resource Areas include any:

(a) freshwater wetlands;

(b) marshes;

(c) wet meadows;

(d) bogs;

(e) swamps;

(f) vernal pool habitat;

(g) banks;

(h) reservoirs;

(i) lakes;

(j) ponds of any size;

(k) rivers, streams, and creeks;

(l) lands under water bodies; and

(m) lands subject to flooding or inundation by ground or surface water (collectively protected as "Resource Areas").

(4) When Permits are Required. No person shall remove, fill, dredge, build upon, degrade, discharge into, or otherwise alter Resource Areas except as permitted by the DEC or as exempted by 974 CMR 4.06. Permits are required when activities are conducted within Resource Areas or within 100 feet of Resource Areas. Lands within 100 feet of Resource Areas are presumed important (By-laws, Article XII Section C.1) to the protection of Resources Areas because activities undertaken in close proximity to resource areas have a high likelihood of adverse impact on the Resource.

The By-laws do not permit any alteration of natural vegetation or substrate within 25 feet of a Resource Area or the location of any building within 50 feet of a Resource Area except that the construction of recreational facilities (bikeways, trails, docks, etc.), roads, streets, rail sidings, aboveground or underground public utilities and infrastructure, detention basins or drainage structures, measures undertaken for the remediation of contaminated soils or groundwater, or removal of solid waste is allowed within these setbacks. Any exceptions shall implement all controls necessary to minimize adverse impacts to Resource Areas.

(5) When Permits are not Required.

(a) Maintaining, repairing, or replacing an existing and lawfully located structure or facility used in the service of the public to provide electric, gas, water, telephone, or telecommunication services, provided that written notice has been given to the DEC prior to the commencement of work and there are adequate (as determined by the DEC) measures to protect the Resource Areas during the maintenance, repair, or replacement activities. This exemption does not apply to substantial changes to or enlargement of such structures or facilities. An Applicant claiming that work to remove, fill, dredge or alter a Resource Area does not require the filing of a Notice of Intent has the burden of establishing that the work is not subject to Regulation under M.G.L. c. 131, § 40. In such cases, the Applicant may be required to file a Request for Determination of Applicability with the DEC.

(b) Emergency projects necessary for the protection of the health and safety of the public, as per 310 CMR 10.06(1): provided that:

1. The work is performed or supervised by MassDevelopment.

2. Notice, oral or written, has been given to the DEC prior to or within 24 hours of the commencement of work. Such notice shall specify why the project is necessary for the protection of public health and safety.

3. The Director certifies the work as an emergency project. The certification shall include a description of the work which is to be allowed.

4. The work is performed only for the time and place certified by the Director for limited purposes to abate the emergency; and

5. A permit application shall be filed with the DEC within 21 days of commencement of an emergency unless the project has been completed by this time.

(6) Applications for Permits.

(a) Applications to perform activities affecting Resource Areas (Notices of Intent) and decisions to allow such activities (Orders of Conditions) are subject to Level Two review. The issuance of a Certificate of Compliance is a Level One permit.

(b) Applications shall include a description of proposed activities and their effects on Resource Areas. No activity shall commence without receiving and complying with a permit issued pursuant to 974 CMR 4.06.

(c) Applicants seeking a Request for Determination (RFD) as to whether a Notice of Intent (NOI) is required shall submit their application simultaneously to the DEC and the DEP Central Regional Office. The Director shall review the RFD and issue a Determination within 21 days of the submission of the application. A positive Determination requires an Applicant to file an NOI. If the application for an RFD is incomplete, a positive Determination shall be rendered. Any Determination by the DEC Director is valid only upon ratification by the DEC at a public meeting. The DEC may ratify, modify or disapprove the Director's decision. A negative Determination shall be valid for three years, provided the project is not changed within that period.

(d) A NOI is required to fill, dredge, or alter any wetlands or land within 100 feet of a wetlands or water body. An NOI shall include:

1. Owners' and Applicants' names, date of application, scale;

2. North arrow;

3. Size of total lot, size of altered or impacted areas, calculations based on accurate measurements and certified by a Professional Engineer;

4. Assessors map and lot (if available) and a list of abutters, certified if possible;

5. Stamp and seal of engineer and other professionals preparing the plan;

6. Existing contours at two foot intervals (or as specified by the Director);

7. Proposed contours and amount of fill or material removed;

8. Location and specifications of any retention structures or other improvements;

9. Existing drainage patterns and proposed alterations;

10. Boundaries of all waterbodies, wetlands, and buffer areas (buffers as defined in the By-laws, Article XII, Section C.1);

11.100-year floodplain;

12. Top and toe of bank;

13. Identification of indigenous upland and wetland vegetation;

14. Limit of work ("construction envelope");

15. Erosion and sedimentation plan showing the details and location of all temporary erosion control;

16. All existing and proposed below-ground alterations and structures, including drainage structures and systems, septic systems, wells, storage tanks, etc.;

17. Distance of leaching facilities to wetlands, water course, and waterbodies;

18. Drainage easements and ways;

19. Wetland Replication plans (if replication is required) including, but not be limited to, design, construction and monitoring consistent with the Massachusetts DEP Wetland Replication Guidelines, March 2002;

20. Required forms and fees;

21. Details on impacts on habitats of state-listed species (if any);

22. A written request to extend the time in which the DEC must render a decision (to accommodate the DEC required 30-day town comment period) shall be filed with the application;

23. A certified list of all abutters and property owners within 300 feet of the boundaries of the site upon which the work is to be performed;

24. Any other material specified by the Director.

(e) Public hearings will be advertised, noticed, and held as required by the By-laws and 974 CMR 1.04: Level One Review. Applicant shall stake or flag the edge of wetlands on the project site at least five days prior to the hearing. The DEC, after public hearing, shall determine whether the impacts on the area on which the proposed work is to be done are significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to the protection of wildlife habitat, to erosion and sedimentation control or to the protection of fisheries, and shall by written order within 21 days of such hearing impose such conditions as will contribute to the protection of the Resources.

(f) All work shall be done in accordance with the orders issued by the DEC. No work may commence until the final order and plans have been recorded in the Registry of Deeds and proof of such recordation has been submitted to the DEC and a sign identifying the project with the MADEP file number has been posted on site in a location visible from the nearest public way.

(g) The DEC may require that the performance and observance of the conditions imposed be secured wholly or in part by either:

1. A proper bond or deposit of money or other instrument acceptable to the Director as specified in 974 CMR 1.13: Performance Guarantees; or

2. A conservation restriction, easement, or other covenant enforceable in a court of law, executed and duly recorded by the owner of record, running with the land to the benefit of the DEC or a non-profit organization, the principal purpose of which is the conservation of open space.

Notes

974 CMR 4.06