1. What is the Wetlands Protection Act?

The Massachusetts Wetlands Protection Act (GL Ch131 sec. 40: the Act) prohibits any filling, excavation, or other alteration of the land surface, water levels, or vegetation in wetlands, floodplains, riverfront areas of other wetland resource areas, regardless of ownership, without a permit from the local conservation Commission.  This law originated in 1972 when two earlier statutes were combined.  Regulations for the Act are issued by the Department of Environmental Protection. 

 

  1. What is a wetland?

Legally the term “wetland” includes not only areas we think of as wet lands but also intermittent streams, riverfronts, and other areas that may be dry for a portion of the year.  The Act specifically regulates activities in or near “bordering vegetated wetlands (BVW) – wet woods or meadows, marshes, swamps and bogs adjacent to water bodies.

 

  1. What other areas are protected?

In addition to BVWs and floodplains, the Act also covers banks, dunes, beaches, vernal pools, land under lakes and ponds, and land under or within 200 ft. of rivers and streams which flow year round.  Technical definitions are found in the law and its accompanying regulations.  Many wetland resource areas are defined by the abundance of wetland plants and by their water regime or hydrology, with the latter sometimes determined by soil type.  Riverfront resource areas are in most cases measured from the top of the bank of a river or stream

     

  1. What activities are prohibited in wetlands, riverfront lands and other resource areas?

Under the Act no one may “remove, fill dredge or alter” any wetland, floodplain, bank, land under a water body, land within 100 ft. of a wetland, or land within 200 ft. of a perennial stream or river, without a permit from the Conservation Commission.  The “interests” or values protected under the Act are Flood control, Prevention of Storm Damage, Preventions of Pollution, Fisheries, Shellfish, Groundwater, Public or Private Water Supply and wildlife Habitat.  The term “alter” is defined in include any destruction of vegetation, or change in drainage characteristics or flow patterns, or any other change in water table or water quality.  The regulations prohibit most destruction of wetlands and naturally vegetated riverfront lands, and require replacement of flood storage lost when floodplains are filled.

Normal maintenance and improvement of land currently in agricultural use is exempt from the provisions of this act.  Preparation of new land for agricultural use is not exempt.  Silviculture harvesting is exempt if the landowner has obtained a forest cutting permit from DEP’s regional forester.  Certain “limited” projects, such as repairs to some utility facilities and constructing a driveway to uplands where no alternative access is available, may be approved within a resource area with conditions to protect the interests of the Act.

 

  1. How can I find out if my property lies in or near a resource area?

Some areas, such as rivers, steams, pond, wooded swamps, bogs, and cattail marshes, are easily recognizable.  Distinguishing other wetland and water resource areas can be more difficult and may require the services of a botanist or wetland scientist.  If you wish to develop your land, the wetlands, floodplains or other regulated areas on or near you property must be mapped, and there are many engineering firms and wetlands consultants that will provide this service.

Floodplain maps issued by FEMA in Boston under the national flood insurance program show the floodplains associated with major streams.  Unfortunately, the maps are not complete and many floodplain areas are not indicated.  If your property lies near a stream or in a low-lying area, there is a chance that part of it is sometimes flooded.  In most cases this elevations must be calculated by a professional engineer.

To determine if an area is wetland or riverfront area, a landowner or other interested party may submit a form known as a “Request for Determination of applicability” to the Conservation Commission.  The Commission is bound to hold a publicly advertised meeting to discuss the matter and issue a decision.

   

  1. What must I do if I want to conduct a regulated activity in or near any of the resource areas protected by the state Act?

Regulations issued under the Act should be consulted because they contain specific standards that your project must meet to be approved. 

For small projects located entirely in the 100’wetlands buffer zone (but not within 200’ of a perennial river or stream) you my submit a Request for Determination of Applicability with a plan, sketch or other description of the work to be done, showing any measures you plan to take to protect nearby wetlands from alteration.  If the project is determined to have no wetlands impact, you will be given permission to proceed as soon as a 10-day appeal period passes.  Certain small projects are exempt.

If the project does impact wetlands, banks, dunes, lands within 200 ft. of a river or perennial stream of other resource areas, the next step is to submit a formal application known as a “Notice of Intent” to the Conservation Commission.  This is a formal presentation carefully prepared, usually with the assistance of an engineer and/or wetlands consultant, according to the standards and criteria defined in the Act and Regulations, and showing in detail all aspects of the proposed project.  The Commission will set a time for a public hearing in the local paper at the applicant’s expense.  Once the hearing is completed and closed, the Commission must issue its decision, known as an ‘Order of Conditions”, within 21 days.

You may appeal the Order of Conditions within 10 days.  Abutters, 10 residents or the community or DEP can also appeal within the 10 day period.  Under the state Act, appeal is first to the regional office of DEP; which will issue what is known as a “Superseding Order”.  Further appeal of this Order is to the Boston office of DEP, and then to Superior Court. 

  

  1. What are the penalties for violating the law?

Violations are punishable by a maximum fine of $25,000 and/or not more than 2 years of imprisonment.  In addition, a landowner is usually required to restore illegally altered land to it original condition.

 

  1. Why are wetlands and other water resource areas important?

The cost of loss or wetland acreage , degraded water quality, increased storm damage, and depleted fish, wildlife and plant populations has been well documented.

Wetlands provide many free services to the community.  Low areas serve as floodways to channeldd storm and other flood waters and act as buffers to prevent damage to nearby roads and buildings.  Naturally forested riverfront areas slow flood waters and trap sediment and debris.  These functions minimize the need to extensive and expensive engineered flood management systems.  Wetlands also provide temporary storage of flood waters, allowing floods to receded slowly and to recharge groundwater aquifers.

Wetlands are often sources of public or private drinking water supply.  Wetlands and fully vegetated riverfront lands help to purify the waters they receive from highway or agricultural runoff and other sources.  They serve as natural settling areas where soils and vegetation trap sediments which bind and, in some cases, break down pollutants into non toxic compounds.  Sediments under marsh vegetation absorb chlorinated hydrocarbons and heavy metals such as lead, copper and iron.  Wetlands and riverfront lands retain nitrogen and phosphorus compounds which otherwise would foster nuisance plant growth and degradation of fresh and coastal waters.

Wetlands and valuable to wildlife – providing foof breeding areas and protective cover.  Naturally vegetated riverfront lands also provide essential travel corridors for many species.  Shellfish beds and commercial and recreational fisheries are dependent on good water quality and healthy coastal and inland wetlands.

Banks serve a buffers for landowners against storm damage.  Vegetated banks bind the soil, preventing erosion caused by wave or surface water flow.