Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 10.00 - Wetlands Protection › Additional Regulations for Inland Wetlands › Appendix 10.00 - WILDLIFE HABITAT

Current through Register 1525, July 5, 2024
Note
: The following are appendices
				  to, but not part of,(
				  310 CMR
				  10.00 ).
PREFACE TO REVISIONS TO THE MASSACHUSETTS WETLANDS
REGULATIONS (
				  310 CMR
				  10.00 )
RELATING TO THE DEFINITION OF "EXTENDED
DROUGHT" AND DISTINGUISHING "PERENNIAL RIVERS"
FROM "INTERMITTENT STREAMS", 2002 REGULATORY REVISIONS
Introduction
The Wetlands Protection Act (M.G.L. c. 131, § 40) was
				  amended in 1996 to provide additional protection for rivers, defined in the Act
				  as "any natural flowing body of water that empties to any ocean, lake, pond, or
				  other river and which flows throughout the year." Since promulgating
				  regulations in 1997, the Department of Environmental Protection (Department)
				  has found that the original regulatory criteria do not clearly distinguish
				  perennial rivers that flow throughout the year from intermittent streams that
				  do not flow throughout the year. Many factors embodied in the original
				  regulations, such as soil types or the presence or absence of
				  macroinvertebrates, cannot practically be used to distinguish between perennial
				  and intermittent streams. Other factors, such as stream gages, have limited
				  usefulness due to their limited geographic extent. Still other factors, such as
				  watershed size, are relevant but need to be modified based upon more recent
				  research.
The Department has also found that the original definition of
				  extended drought, which was based solely on precipitation data, does not
				  accurately reflect the role of groundwater and stream flow during drought
				  conditions. Extremely dry conditions existed in most of Massachusetts in the
				  summer of 1999, leading to some of the lowest river and stream flows ever
				  recorded. Even though many federal and state agencies declared droughts, the
				  Wetlands Protection Act definition was not triggered in most communities
				  because of brief but heavy summer rainstorms - rainstorms that fulfilled the
				  regulatory precipitation numbers but did not provide sufficient recharge to
				  restore groundwater or stream flow levels .
In order to address the issue of perennial rivers and
				  drought, the Department formed a technical advisory committee with
				  representatives from various interest groups, and with research and technical
				  support provided by the United States Geologic Survey (USGS) and the
				  Massachusetts Department of Environmental Management (DEM). The technical
				  advisory committee spent more than two years searching for an approach that was
				  based upon sound science and could also be implemented at the local level. This
				  approach, based primarily on watershed size and surficial geology, is described
				  below and is embodied in the new regulations.
It is also important to note that many intermittent streams
				  still receive protection under the Wetlands Protection Act through applicable
				  resource area performance standards for land under water, bank, land subject to
				  flooding, and often, bordering vegetated wetlands. The distinction between
				  perennial and intermittent flow pertains only to whether the stream has an
				  associated riverfront area.
The Rulemaking Process
Drought conditions across the Commonwealth in late 2001
				  prompted the Department to adopt changes to the extended- drought provisions as
				  an emergency regulation in December 2 0 0 1 . The Department then conducted
				  four regional public hearings on the emergency-drought provisions as well as
				  the perennial river versus intermittent stream changes. The Department received
				  public comments through March 29, 2002. Thirty-eight parties commented on the
				  proposed amendments. Of those, thirty-one commentators generally supported the
				  proposed amendments or requested clarification of certain provisions. Six
				  parties commented against the proposed amendments, and one party requested
				  additional time to review and comment. Based upon a careful review and
				  consideration of the comments, the Department has made some changes to the
				  public hearing draft as described below.
Summary and Rationale of the New
				  Regulations
A.
Perennial Rivers and Intermittent
				  Streams
:
1.
Watershed Size and Surficial
				  Geology
.
The Department and its technical advisory committee concluded
				  field observations alone cannot be used to predict whether a small stream is
				  likely to flow throughout the year. Given permitting time constraints, the
				  Department also concluded that it would be unworkable to devise a system based
				  entirely on stream flow observations made during the late summer or early fall,
				  when water levels are often at their lowest. Aside from the practical
				  difficulties with this approach, observations made during this period may not
				  be definitive when the conditions are unusually wet or unusually dry compared
				  to long-term records.
To explore other options, the Department contracted with the
				  USGS to research watershed characteristics that might be useful in classifying
				  streams, such as drainage area, mean basin slope, length of stream, urbanized
				  land cover, and the percentage of sands and gravels in the watershed. This
				  research revealed that the most important characteristics for predicting
				  whether a river flows throughout the year are watershed size (drainage area)
				  and surficial geology (the percentage of sands and gravel in the watershed). As
				  a result of this research, as well as independent analysis and field-testing by
				  the Department, the Department and its technical advisory committee agreed that
				  watershed size and surficial (subsurface) geology could reliably be used to
				  predict whether a stream will flow year-round. There is a strong correlation
				  between watersheds greater than or equal to one square mile and streams that
				  are predicted to flow 99% of the time. There is also a strong correlation
				  between watersheds with a high percentage of stratified drift (sands and
				  gravels) and streams that flow 99% of the time. These two factors, as well as a
				  fail-safe field observation provision, have been incorporated into the new
				  regulations.
USGS continues to refine its statistical methodology to
				  better predict the probability of a stream flowing year-round. Once completed,
				  the Department plans to use this information to produce stream maps that will
				  eliminate reliance on the USGS topographic maps. Since this process will take
				  several years, the regulatory changes described herein are necessary to address
				  perennial versus intermittent determinations during the interim.
2.
USGS Topographic Maps and
				  STREAMSTATS
.
The new regulations continue to rely upon an initial review
				  of USGS topographic maps. Although these maps were not specifically developed
				  to delineate perennial rivers from intermittent streams, the Department
				  believes it is important to base initial reviews on maps that are widely
				  available to Conservations Commissions and the regulated community. The
				  regulations then provide for adjustments to stream status based upon watershed
				  size, watershed geology, and field observations of no flow. Under the new
				  regulations, streams that are shown as perennial on USGS topographic maps are
				  classified as perennial. Streams that are shown as intermittent, or not shown
				  at all, are classified based upon watershed size. If the watershed size is
				  greater than or equal to one square mile, the stream is perennial. If the
				  watershed size is less than one square mile, the stream is most likely
				  intermittent.
Some intermittent streams with a watershed size of between
				  one-half and one square mile may be shown to be perennial if the USGS
				  STREAMSTATS model predicts a positive flow or if the watershed contains at
				  least 75% stratified drift. STREAMSTATS is a new statistical tool developed by
				  USGS that can be accessed through the USGS web site at
http://ma.water.usgs.gov/streamstats/
.
				  This web site provides valuable stream flow information to applicants and
				  regulators alike. STREAMSTATS incorporates watershed size and geology into its
				  calculations, and can be used to analyze the probability that a stream flows on
				  a year-round basis at a particular location. That probability is reported in
				  terms of flow duration statistics. Flow duration statistics indicate the
				  percentage of time stream flows are equaled or exceeded at a given stream
				  location. For example, if a stream's flow at the 99% flow duration is five
				  cubic feet per second, the stream's flow is predicted to be greater or equal to
				  that discharge rate 99% of the time. Streams with a predicted flow rate greater
				  than or equal to 0.01 cubic feet per second at the 99% flow duration rate are
				  considered perennial. The 99th percentile is the best available statistical
				  expression of the statutory language "flows throughout the year."
Some commentators requested that the Department require use
				  of the STREAMSTATS tool exclusively, and abandon reliance on USGS topographic
				  maps. While the Department may take this approach in the future, we are
				  concerned about USGS's ability to handle the high demands this would place on
				  its web site. In addition, STREAMSTATS cannot work if the stream's centerline
				  has not been digitized. Thus, streams located in many southeastern communities
				  (a list of watersheds is included in the regulations), as well as smaller,
				  unmapped streams throughout the state, cannot be analyzed using STREAMSTATS. In
				  those communities, watershed size and surficial geology must be analyzed using
				  available maps.
Other commentators expressed concerns about using STREAMSTATS
				  in small watersheds, particularly those below 1.61 square miles. This number
				  represents the smallest watershed size for which USGS has calculated "error
				  bands" to accompany the STREAMSTATS package. After consultation with USGS, plus
				  field-testing on small streams, the Department believes that STREAMSTATS
				  properly estimates stream flow in watersheds down to one-half square mile in
				  size. The regulations reflect this lower limit. Similarly, the regulations
				  place a one-half square mile size limit on watersheds in which stratified drift
				  percentages must be taken manually or electronically from surficial geology
				  maps .
3.
Direct Observations of No Flow
.
Even though watershed size and geology are the most important
				  characteristics for determining stream status, the methods outlined above are
				  still "predictive" and may be overcome by direct observation. As a fail-safe
				  mechanism, any stream must be classified as intermittent if it is observed not
				  flowing for four days in a consecutive 12-month period, unless the observation
				  occurs during a period of extended drought or the stream is significantly
				  affected by withdrawals, impoundments, or other man-made flow reductions or
				  diversions. In such cases, the observations become less probative in
				  determining the stream's classification and the stream should be classified
				  based upon its status under the regulations absent the observation.
Some commentators questioned the requirement for four
				  observation days rather than one, and questioned the stringency of the required
				  documentation. The Department believes that four days (approximately 1% of days
				  in a year) is a reasonable requirement that is rationally related to the best
				  statistical evidence available to predict a stream's status. The new regulation
				  is also meant to ensure that field observations are reliable, credible, and
				  well documented. In the past, the Department has too often struggled with
				  poorly documented and irreconcilable observations from opposing parties. The
				  regulations also clarify what is meant by "flow."
4.
Perennial Streams with Very Small
				  Watersheds
.
Some commentators requested that the regulations include a
				  method for proving that streams with very small watersheds (i.e. less than one
				  square mile) flow throughout the year. These streams may emanate from springs,
				  or in areas such as Cape Cod, they may draw upon a large regional groundwater
				  aquifer system. Regardless of watershed size, these streams are considered
				  perennial under the regulations if they are shown as perennial on USGS
				  topographic maps. For those streams shown as intermittent, or not shown at all,
				  they may be considered perennial if the watershed size is at least one-half
				  square mile and it meets either the STREAMSTATS or stratified drift provisions.
				  The stratified drift provisions have been broadened in the final regulations to
				  encompass the entire state rather than a more limited list of watersheds.
				  Streams that do not fit into these categories must be classified as
				  intermittent. Unfortunately, proving that a stream is perennial by direct
				  observation requires multiple observations made in the late summer and early
				  fall months over many years, and the Department could not craft a workable
				  provision to accommodate those timeframes.
B.
Extended Drought
.
The definition of "extended drought" has been amended to
				  coincide with an "Advisory" or more severe drought as declared by the
				  Massachusetts Drought Management Task Force in accordance with a statewide
				  drought management plan. This change was made on an emergency basis, effective
				  December 21, 2001, and is now incorporated into the permanent regulations. The
				  plan has five drought action levels based upon multiple indicators such as
				  stream flow, groundwater elevations, precipitation, snow pack, wild fire
				  danger, crop moisture availability, reservoir levels, and the Palmer Drought
				  Severity Index. The Task Force will issue written statements when a drought
				  develops, when drought levels change, and when the drought ends. Monthly maps
				  will be prepared by DEM detailing the geographic extent of the drought and the
				  corresponding drought level. Drought information is published on the web at
http://www.state.ma.us/dem/programs/rainfall/index.htm
.
Some commentators questioned whether the regulations should
				  be tied to a more severe drought level than "Advisory." Prior to promulgating
				  these final regulations, the Department conducted a return period analysis to
				  determine how often an Advisory level of drought would occur compared to a
				  drought declared under the original regulation's definition based solely on
				  precipitation. The analysis found that the probability of a drought declaration
				  at a number of locations under the new system is less likely, or statistically
				  the same, compared to the old definition. However, the geographic extent and
				  duration of the drought may increase under the new system, as it reflects the
				  time necessary for groundwater and stream flow levels to recover. The
				  Department is satisfied that the new statewide system more accurately portrays
				  stream flow conditions, will be more easily used, provide consistent analysis,
				  and will not lead to more frequent drought declarations than the original
				  regulations.
Many commentators expressed concern with the language
				  concerning withdrawals, impoundments, and diversions. The Department has
				  modified this language slightly in response to comments, and is also planning
				  to develop guidance on this issue. First, the Department has retained the
				  concept that the Legislature meant to protect rivers that would flow throughout
				  the year in their natural condition. Property owners cannot raise the
				  flashboards or otherwise manipulate the water flowing long enough to claim a
				  stream is intermittent and escape riverfront jurisdiction. Man-made changes in
				  stream flow should be investigated when streams that are predicted to flow
				  perennially are observed dry. However, the Department has added the word
				  "significant" to stress that the stream's apparent change in status (i.e. a
				  perennial stream is observed intermittent) must be directly related, and in
				  most cases, proximate, to the withdrawal, impoundment, or other flow reduction
				  or diversion. In other words, "but for" the withdrawal, impoundment, or other
				  flow reduction or diversion, the stream would be perennial. The regulation also
				  clarifies that the changes must be man-made.
PREFACE TO WETLANDS REGULATIONS RELATIVE TO MEAN ANNUAL HIGH
				  WATER, 2000 REGULATORY REVISIONS
Introduction
The Department of Environmental Protection promulgated
				  regulations on October 6, 1997 to implement the Rivers Protection Act
				  amendments to the Wetlands Protection Act. Since then, the Department has
				  gained considerable field experience and now recognizes that one aspect of
				  these regulations, determining the "Mean Annual High-Water (MAHW) Line," can be
				  difficult and confusing in the field. Locating the MAHW line is important
				  because it establishes the lower boundary of the Riverfront Resource
				  Area.
The Rulemaking Process
The Department established a technical advisory committee
				  drawn from the environmental and development communities, plus federal, state,
				  and municipal staff members, to develop improvements to the existing MAHW
				  regulation. The technical advisory committee met throughout the fall of 1999
				  and spring of 2000 to review scientific literature, analyze potential methods
				  for locating MAHW, draft a proposed regulation that was consistent with the
				  legislative definition, and field-test the proposed definition. The technical
				  advisory committee unanimously agreed upon the approach embodied in the new
				  MAHW regulation, and the Department thanks each member of the committee for
				  contributing so many hours in such a professional and dedicated manner.
The Department held five public hearings throughout the
				  Commonwealth on the draft regulation, and received public comment through
				  February 22, 2000. The new regulation is effective as of May 12, 2000.
Summary and Rationale of the Mean Annual
				  High-Water Regulations
The Legislature defined MAHW in the Rivers Protection Act as,
				  ".the line that is apparent from visible markings or changes in the character
				  of soils or vegetation due to the prolonged presence of water and that
				  distinguishes between predominantly aquatic and predominantly terrestrial
				  land."
The technical advisory committee and the Department first
				  agreed that the legislative definition focuses on field indicators as the
				  primary tool for locating the MAHW line. It requires us to find, ".a line that
				  is apparent from visible markings or changes in the character of soils or
				  vegetation." (emphasis added). Upon review of the scientific literature, the
				  technical advisory committee unanimously concluded that the concept of
				  "bankfull discharge," as evidenced by "bankfull field indicators," most closely
				  matched the legislative definition. In addition, our collective experience has
				  shown that boundaries based upon readily-observable field indicators are easier
				  to implement for conservation commissions and other parties than a methodology
				  that relies on complicated statistical computations.
"Bankfull discharge" corresponds to the elevation, or stage
				  of the river, that actively creates, modifies, and maintains the river's
				  channel. In the context of these regulations, the river's channel can be
				  described broadly as the cross-sectional area that carries the river's annual
				  high water flows, which typically occur in early spring. During bankfull
				  discharge, the water is moving sediment, forming or removing bars, forming or
				  changing bends and meanders, and generally doing work that results in
				  morphologic change to the river system. These morphologic changes to the river
				  system can be observed in the field. Bankfull field indicators include changes
				  in vegetation (usually changes in vegetational community), stain lines, top of
				  point bars (depositional features), changes in slope, changes in bank material,
				  and bank undercuts. The Department is releasing guidance materials concurrently
				  with the new regulation to assist conservation commissions and other parties in
				  identifying these features in the field.
The new regulation makes it clear that in most rivers, the
				  first observable break in slope will continue to indicate the MAHW line.
				  However, in some river reaches, characterized by features such as a low
				  gradient, meanders, oxbows, histosols, a lowflow channel, or poorly-defined or
				  nonexistent banks, the MAHW line will be evidenced by some combination of the
				  bankfull field indicators listed above. It is important to understand that no
				  one bankfull field indicator should be taken alone; multiple corroborating
				  features should be sought. Bankfull field indicators may be quite subtle in a
				  meandering river with a broad floodplain, or in a wetland stream, so multiple
				  observations along both sides of the river, combined with field indicators
				  located up and down the river reach, may be necessary.
For tidal rivers, the Legislature has defined MAHW to be the
				  mean high tide line. The MAHW regulations reference the existing description of
				  the mean high tide line found in the coastal section of the Wetlands Protection
				  Act Regulations at
				  310 CMR
				  10.23.
PREFACE: 1997 REGULATORY REVISIONS FOR THE RIVERS PROTECTION
				  ACT AMENDMENTS TO THE WETLANDS PROTECTION ACT
I.
Introduction
The Rivers Protection Act (St. 1996, c. 258), signed into law
				  August 7, 1996 and effective immediately, added a new resource area and
				  accompanying performance standards to the Wetlands Protection Act. The resource
				  area is called the "riverfront area" and extends 200 feet (25 feet in
				  municipalities with large populations and in densely developed areas) on each
				  side of perennial rivers and streams throughout the Commonwealth. Although
				  Massachusetts has almost 9000 miles of rivers, the riverfront area is less than
				  one percent of the state's total acreage. The purpose of the Rivers Protection
				  Act is to preserve the natural integrity of rivers and adjacent land for the
				  important values these areas provide to all citizens of the
				  Commonwealth.
Unlike earlier versions of the "Rivers Bill," the Rivers
				  Protection Act as enacted does not prohibit activities near rivers. Applicants
				  proposing work in the riverfront area must obtain a permit, called an Order of
				  Conditions, from the local conservation commission or from the Department of
				  Environmental Protection on appeal. Applicants must demonstrate that projects
				  meet two performance standards prescribed in the statute: that there are no
				  significant adverse impacts on the riverfront area to protect public and
				  private water supplies, wildlife habitat, fisheries, shellfish, groundwater,
				  and to prevent flooding, storm damage and pollution
and
there are no practicable and substantially
				  equivalent economic alternatives to the proposed work with less adverse effects
				  on these public interests.
II.
Regulatory Development Process
The Department established a Riverfront Advisory Committee to
				  participate in the development of its regulations. As required by the Rivers
				  Protection Act, the eight member committee included four representatives of
				  environmental organizations, a developer, and a representative for real estate,
				  agriculture and aquaculture interests. Three committee members owned land
				  within the riverfront area. The committee met biweekly from January through
				  April, 1997.
The Riverfront Advisory Committee provided valuable
				  perspectives on the issues raised by the statute and on the Department's
				  interim policy issued in November 1996 to provide guidance to commissions and
				  applicants between enactment of the statute and promulgation of regulations.
				  The Department also had the benefit of comments from other knowledgeable
				  individuals from the development, environmental, and legal communities. The
				  Department held seven public hearings in May 1997 and received over 1,200 pages
				  of comments from citizens, environmental organizations and development
				  interests.
The regulations were promulgated on July 25, 1997, with an
				  effective date of October 6, 1997. Because they provide a greater level of
				  detail than the Department's interim policy, the regulations may be helpful in
				  decision making for cases arising between August 7, 1996 and October 6, 1997.
				  As of October 6, 1997, the revised
				  310 CMR
				  10.00 must be used to implement the Rivers Protection
				  Act.
III.
Summary and Rationale of the
				  Regulations
The regulations reflect the Department's responsibility to
				  honor the legislative mandate to protect riverfront areas for their important
				  public values. The two performance standards and the definition of "river,"
				  which together provide this protection, are set forth in the statute. Wherever
				  possible, the Department emphasized ease of implementation to avoid unnecessary
				  delays for applicants and to reduce the administrative burden on conservation
				  commissions. The Department received comments expressing many conflicting views
				  of the legislative intent behind the Rivers Protection Act. The regulations are
				  designed to implement the statute by providing clear procedures and substantive
				  criteria to guide applicants, conservation commissions, and Department staff
				  from project design through the decision making process. The new provisions
				  governing riverfront areas are located at
				  310 CMR 10.58;
				  the variance provisions formerly at
				  310 CMR 10.58 and
				  10.36
				  have been moved to
				  310 CMR
				  10.05(10).
Definition of River.
The
				  Department's regulations reflect the broad definition of "river" presented in
				  the statute. Although many people think of rivers as relatively large bodies of
				  water as opposed to smaller streams, the statutory language clearly encompasses
				  all perennially flowing waters. The physical distinction between intermittent
				  and perennial streams is critical because it determines whether or not an area
				  is subject to jurisdiction. The Department decided to use United States
				  Geological Survey (U.S.G.S.) or other more recent maps provided by the
				  Department as presumptively showing perennial streams for three reasons. First,
				  maps offer a relatively accurate and convenient tool for applicants,
				  commissions, and interested citizens. Second, maps provide evidence that is
				  gathered and crosschecked over time, as opposed to one-time observations that
				  can easily be influenced by recent weather conditions. Third, the use of maps
				  will save most applicants time and money that would otherwise be spent
				  conducting case-by-case field investigations.
The regulations, however, allow applicants or others to
				  present evidence that the mapped information is inaccurate. Commissions should
				  still perform site visits and verify the location and status of rivers and
				  streams at project locations. In response to concerns about the burden on
				  commissions to rebut the presumption, the regulations specify that conservation
				  commissioners, commission staff, and Department staff are competent sources of
				  such evidence.
Definition of Mean Annual High
				  Water
. Mean annual high-water line is defined in the statute as
				  the line apparent from visible markings and changes in soils and vegetation
				  from the prolonged presence of water and which distinguishes between
				  predominantly aquatic and terrestrial land. Although the boundary of bordering
				  vegetated wetland is also determined by changes in soils and vegetation, the
				  mean annual high-water line is determined by characteristic features indicative
				  of fluvial processes.
The Department determined that in the vast majority of cases,
				  the mean annual high-water line specified as the boundary of the riverfront
				  area is coterminous with the upper boundary of the bank. The top of bank is
				  currently used to determine wetlands boundaries, and is relatively easy to
				  identify without expensive engineering calculations and without engendering
				  disputes. Using an existing wetlands boundary will benefit commissions and
				  applicants because they are already experienced in its identification and will
				  avoid the potential for confusion in using another distinct boundary. Some
				  commenters expressed concern about using the upper boundary of banks to
				  determine jurisdiction for low gradient rivers with wide areas of submergent or
				  emergent vegetation. The regulations clarify that the bank will be located on
				  the landward edge of such vegetation, and that U.S.G.S. stream gauge data may
				  be used to identify the annual flood level as an alternative to the first
				  observable break in slope.
Practicable Alternatives.
The Rivers
				  Protection Act requires applicants to demonstrate that there is no practicable
				  and substantially equivalent economic alternative to the proposed project with
				  less adverse impact on the protected interests. A "practicable and
				  substantially equivalent economic alternative" is defined in the statute as an
				  available and feasible alternative which will accomplish the project's purpose,
				  taking into account costs, logistics, the proposed use, and technology. The
				  Rivers Protection Act also specifies the scope of alternatives to be evaluated.
				  For activities associated with a single family house on a lot recorded prior to
				  August 7, 1996, the alternatives considered must be limited to the lot. For any
				  other activity, including the creation of a real estate subdivision, the area
				  under consideration must extend to the subdivided lots, any parcel out of which
				  the lots were created, any adjacent parcels, and any other land which can
				  reasonably be obtained.
The evaluation of alternatives to determine whether they are
				  practicable is called an "alternatives analysis." The text of the Rivers
				  Protection Act requiring evaluation of alternatives is quite similar to the
				  practicable alternatives analysis used for many years by the U.S. Army Corps of
				  Engineers for permits involving work in wetlands and waterbodies under Section
				  404 of the federal Clean Water Act. The Department reviewed federal regulations
				  and case law to interpret this performance standard, allowing for the
				  differences between the text of the Rivers Protection Act and the federal
				  guidelines. Although the word "avoid" is not used in either the federal or
				  state text, the effect of the practicable alternatives analysis and the purpose
				  of evaluating alternatives is to determine whether impacts to resource areas
				  can be avoided.
The Department's regulations address two concerns about the
				  practicable alternatives performance standard. First, the definition of
				  "practicable" in the Rivers Protection Act explicitly requires issuing
				  authorities to consider the costs of alternatives. The regulations provide
				  guidance on how costs should be taken into account in the decisionmaking
				  process. While issuing authorities may require the submission of financial data
				  to assess costs, the consideration of costs of alternatives should be limited
				  to a determination of whether costs are reasonable or prohibitive within the
				  context of the project purpose.
Second, the regulations limit the scope of the alternatives
				  analysis so that applicants will not be required to evaluate an unduly broad
				  range of project locations. The number of cases which will require off-site
				  alternatives analysis will be limited to larger projects and certain public
				  projects. Alternatives for many projects, including expansions, extend only to
				  adjacent lots. In response to concerns about conservation commission evaluation
				  of alternatives in other municipalities, the final regulations generally limit
				  the scope of alternatives to within municipal boundaries except when a broader
				  analysis is otherwise being conducted for an Environmental Impact Report or
				  404/401 permit.
No Significant Adverse Impact.
The
				  Rivers Protection Act requires an applicant to demonstrate that any work,
				  including proposed mitigation measures, will have no significant adverse impact
				  on the riverfront area to protect public and private water supplies,
				  groundwater, wildlife habitat, fisheries, shellfish, and to prevent flooding,
				  storm damage and pollution. In its regulations, the Department has chosen to
				  identify criteria to implement this standard, avoiding the unpredictability and
				  inconsistency of case-by-case review of projects without any guidelines.
The criteria include a limitation on alteration, a 100 foot
				  vegetated corridor, stormwater management, and provisions to protect wildlife
				  habitat. The Department also established separate criteria specifically for 25
				  foot riverfront areas. These criteria were selected to promote the benefits of
				  protecting the riverfront area, while ensuring flexibility for many projects.
				  While the criteria will restrict activities within riverfront areas, there is
				  no "prohibition" on development within the riverfront area. Issuing authorities
				  must allow the use of lots recorded before August 7, 1996 for single family
				  house projects. Full compliance with the criteria may also be relaxed to
				  accommodate a variety of circumstances, including limited projects,
				  redevelopment projects, and septic systems or stormwater management facilities
				  when alternative locations are not available.
The criterion of a 100 foot corridor of undisturbed
				  vegetation is based on the scientific literature which recognizes the
				  importance of naturally vegetated riparian areas for the reduction of nonpoint
				  source pollution and protection of wildlife habitat. Limitations on alterations
				  within the entirety of the riverfront area are justified by the need to protect
				  all eight interests of the Act. The limitation of 5000 square feet or 10%,
				  whichever is greater, applies to lots existing on the effective date of the
				  regulations and to entire subdivisions. The limitation of 10% for new lots
				  removes the incentive to create small lots in order to maximize the potential
				  for alteration of riverfront areas.
Many commenters requested enhanced protection of wildlife
				  habitat. Work may not impair the capacity of the riverfront to provide wildlife
				  and vernal pool habitat. A wildlife habitat evaluation may be required for
				  larger projects, and the regulations identify features of important riverfront
				  wildlife habitat. Certified vernal pools are protected at the same standard as
				  rare species habitat, but vernal pools which are not yet certified are also
				  protected.
Restoration and Other Mitigation
.
				  Redevelopment of previously developed riverfront areas brings opportunities for
				  restoration and other forms of mitigation. Rather than simply to stem the tide
				  of further deterioration of water quality, the regulations provide an
				  opportunity to improve our rivers by allowing issuing authorities to require
				  on-site restoration of riverfront areas in exchange for approving additional
				  development farther away from the river. Mitigation, such as preservation of
				  riverfront land or improving an existing adverse impact on-site or within the
				  watershed, also may be approved in exchange for additional development. The
				  regulations include ratios limiting the amount of additional development that
				  an issuing authority can permit to ensure that there will be no significant
				  adverse impact from these projects. Based on comments received on the proposed
				  regulations, the final regulations allow a broader range of redevelopment
				  projects to qualify for the restoration and mitigation option, and also clarify
				  the standards required of these projects. Restoration and other mitigation
				  opportunities offer applicants greater flexibility without compromising
				  environmental protection.
Limited Projects
. Limited projects
				  are categories of activities within the existing wetlands regulations which can
				  proceed at the discretion of the issuing authority without fully meeting the
				  resource area performance standards. Many limited projects are activities which
				  are important to public health, safety, and the environment, such as landfill
				  closures. The Department has interpreted the Rivers Protection Act as allowing
				  issuing authorities the discretion to permit limited projects within the
				  riverfront area.
The Department addressed limited projects in several ways. To
				  reduce discrepancies in the use of limited projects, the text has been revised
				  to guide the exercise of discretion for projects in any resource area. The
				  basic concepts of avoiding, minimizing, and mitigating impacts will provide
				  better protection of all resource areas. The new regulations also codify a
				  long-standing policy interpreting the limited project provision for road or
				  driveway access to uplands. These revisions will promote efficiency in the
				  administrative process and more predictable decisionmaking, benefiting
				  applicants as well as government. Finally, the regulations allow footpaths and
				  bikepaths as limited projects if they are designed to be compatible with
				  projected uses and the character of the particular riverfront area. Public
				  access and other water-based recreational facilities within the riverfront area
				  may be allowed under the existing limited project for construction and
				  maintenance of water-dependent uses.
Alterations for Minor Activities without
				  Review.
The existing wetlands regulations require applicants to
				  file a Notice of Intent for any alteration of a resource area and to obtain an
				  Order of Conditions for any work unless the issuing authority determines that
				  the area of the proposed work is not significant to any interest identified in
				  the statute. While the riverfront area is a resource area under the statute,
				  truly minor alterations will not jeopardize these interests. The Department has
				  determined that for these activities there will be no significant adverse
				  impact on the riverfront area and that there are no alternatives with less
				  adverse effect on the interests identified in the statute. The exclusion of
				  minor activities from review under the requirements for the riverfront area,
				  and also an exclusion from review for work in the buffer zone to other resource
				  areas, will minimize the administrative burden on issuing authorities by
				  reducing the number of projects subject to full application requirements and
				  will relieve some potential applicants of permitting responsibilities. While
				  some conservation commissions urged the Department to require review of these
				  activities or to adopt a notification procedure, the Department concluded that
				  the administrative burden of additional procedural requirements is not
				  justified. However, the categories of minor alterations have been carefully
				  circumscribed to avoid the potential for impacts to resource areas.
Building on Subdivision Lots.
Based
				  on the language of the statute, the Department extended the grandfathered
				  status for definitive plans to the road and infrastructure, the subject of the
				  Planning Board review, but not to future activities on the lots. The Department
				  has ensured that these lots can be developed for single family houses, provided
				  other legal requirements are met; the issue for review is the placement of
				  structures within the lot. The regulations also ensure that single family
				  houses can be built on lots recorded before the passage of the statute, and
				  limit the scope of alternatives that must be considered for new single family
				  lots. For subdivisions receiving approvals after August 7, 1996, the
				  regulations require a more limited scope of alternatives analysis if the land
				  was owned by the developer when the statute was passed.
Procedures for Applicants
. The
				  regulations allow applicants to follow the same procedures currently used under
				  the wetlands regulations. Requests for Determinations of Applicability may be
				  made for the riverfront area, a Notice of Intent must be filed for most
				  proposed activities, and an Order of Conditions will describe the requirements
				  for work. A Request for Determination also may be filed to obtain in advance an
				  identification of the scope of alternatives to evaluate for proposed work in
				  the riverfront area. The existing provisions in the regulations for appeals,
				  emergencies, enforcement, and variances apply to the riverfront area.
				  Continuation of these familiar procedures will benefit both applicants and
				  conservation commissions.
The Department is also revising its application forms to
				  improve their usefulness, and removing the forms from the regulations to allow
				  for periodic revisions. The Department will continue to provide forms required
				  for use by applicants. In addition, a new and optional procedure for applicants
				  to obtain a confirmation of a bordering vegetated wetlands delineation has been
				  created, with a fee to support the review responsibilities incurred by issuing
				  authorities.
Fees.
The Rivers Protection Act
				  required the Department to establish fees for work within the riverfront area.
				  Although applicants are reluctant to incur application expenses associated with
				  their projects, the availability of fees enhances the capacity of conservation
				  commissions to support professional staff, hire consultants, or engage other
				  assistance which can benefit applicants by reducing the potential for delays in
				  the permitting process. The Department set fees commensurate with the increased
				  workload for projects within the riverfront area, while recognizing some
				  efficiency when work is already proposed for another resource area. To assist
				  commissions with the review of difficult projects, applicants also may finance
				  the services of a mutually agreed upon consultant.
Appeals.
The Department recently
				  eliminated a backlog of wetlands adjudicatory hearing appeals by adopting
				  streamlined rules for administrative hearings, encouraging mediation, and
				  emphasizing pre-trial settlement discussions. In response to concern that a new
				  appeals backlog might arise from the caseload under the Rivers Protection Act,
				  the Department has incorporated several innovations to reduce the number of
				  appeals without jeopardizing due process or environmental protection. Examples
				  include the new guidance on the exercise of discretion for limited projects,
				  the exemption of some minor activities from review, and establishing that the
				  Department can issue a Superseding Order that simply affirms a local Order of
				  Conditions. By taking steps to make the administration of the Act less
				  susceptible to appeals and by using its resources more efficiently, the
				  Department can save applicants from long delays and save taxpayers money. The
				  Department is committed to allocating as many of its resources as possible to
				  training applicants, consultants, and commissions to promote fair and efficient
				  implementation of the new regulations.
310 CMR: DEPARTMENT OF ENVIRONMENTAL PROTECTION
PREFACE TO WETLANDS REGULATIONS RELATIVE TO PROTECTION OF
				  WILDLIFE HABITAT
1987 REGULATORY REVISIONS
I.
INTRODUCTION
Under a recent amendment (St. 1986, c. 262) to the Wetlands
				  Protection Act, M.G.L. c. 131, § 40, wildlife habitat is added to the
				  interests protected by M.G.L. c. 131, § 40. Wildlife habitat is defined in
				  M.G.L. c. 131, § 40 to mean:
"those areas subject to (M.G.L. c. 131, § 40) which due
				  to their plant community composition and structure, hydrologic regime or other
				  characteristics, provide important food, shelter, migratory or overwintering
				  areas, or breeding areas for wildlife."
Pursuant to the rulemaking authority set forth in M.G.L. c.
				  131, § 40, the Department of Environmental Protection is promulgating
				  additional regulations, after public comment, to protect this additional
				  interest.
II.
THE RULEMAKING PROCESS
During the entire period that its proposed regulations were
				  in preparation, the Department had the benefit of advice and consultation from
				  knowledgeable groups and individuals, most particularly representatives from
				  the development and environmental communities, as well as wildlife and wetland
				  scientists. Where consensus was attained and deemed consistent with the
				  Department's responsibilities under M.G.L. c. 131, § 40, the proposed
				  regulations reflected it; in other instances, the Department weighed
				  conflicting points of view and chose a course of action that in its judgement
				  best served both the public interests identified in M.G.L. c. 131, § 40
				  and private property rights. The proposed regulations were then subject to
				  public comment at four Public Hearings held around the state, as well as
				  through extensive written submittals. These comments were carefully weighed by
				  the Department and, in many cases, incorporated into a revised version of the
				  regulations. As required by M.G.L. c. 131, § 40, these regulations were
				  submitted to the Clerk of the Massachusetts House of Representatives for
				  forwarding to the Joint Committee on Natural Resources, 60 days prior to their
				  filing with the Secretary of State for final promulgation. The effective date
				  of these regulations is November 1, 1987.
To briefly summarize the lengthy process by which the
				  regulations were prepared; in the 1986 amendment to M.G.L. c. 131, § 40,
				  the Legislature mandated the establishment of a technical advisory committee
				  ("TAC") consisting of a university wildlife biologist; staff members from the
				  Department of Fisheries, Wildlife & Environmental Law Enforcement,
				  Department of Public Works, and Office of Coastal Zone Management; a member of
				  the Massachusetts Homebuilders Association; a member of the Massachusetts
				  Association of Conservation Commissions; a member of the Massachusetts Audubon
				  Society; a member of the National Association of Industrial Office Parks,
				  Boston Chapter; and a general contractor, to advise and assist the Department
				  in drafting proposed regulations. Numerous meetings of the TAC were held to
				  discuss key policy issues. In addition, a six person Scientific Advisory
				  Subcommittee was formed to identify the wildlife habitat characteristics and
				  functions of each wetland resource area, upon which scientific information the
				  proposed regulations were based. Many other scientists, consultants and
				  individuals were contacted informally by the Department during this time period
				  for their advice and opinions.
The Department proposed regulatory revisions on May 5, 1987,
				  and held three Informational Meetings around the state to explain the draft
				  regulations on May 12, 14 and 19; four Public Hearings to receive public
				  comment orally on May 26 and 28 and June 2 and 4; and accepted written comments
				  from the public on the proposed regulations until June 12, 1987. The
				  regulations reflect the benefit of these comments.
III.
THE GENERAL APPROACH
The regulations are based on a number of important
				  principles. The Department has attempted to keep the regulations from being
				  overly burdensome, complex or expensive for conservation commissions and
				  applicants, especially for small projects with minor effects on wildlife
				  habitat. No new fees are proposed in these regulations. The Department has also
				  tried wherever possible to maintain the existing regulatory structure, except
				  where protection of wildlife habitat requires procedures which are not needed
				  to protect other interests alone. Most importantly, the regulations are based
				  on the definition of wildlife habitat contained in M.G.L. c. 131, § 40
				  (see "I. INTRODUCTION" to this Preface).
Prior to enactment of the wildlife amendment to M.G.L. c.
				  131, § 40 by the Legislature, the Department and most of the other
				  interest groups which were party to the legislative debate agreed to the
				  "intent" of a "preamble", "explaining the effect of this amendment upon the
				  Wetlands Protection Act." Although not legally binding, the Department believes
				  that this "preamble" represents an accurate interpretation of the statutory
				  language (especially the statutory definition of "wildlife habitat") as well as
				  the legislative intent. Consequently, the Department has drafted these
				  regulations to be fully consistent with this "preamble", which is quoted as
				  follows in its entirety:
It is important to make clear what it means to have added the
				  wildlife habitat interest as an eighth interest in M.G.L. c. 131, § 40. It
				  does not mean that the geographic jurisdiction of the conservation commission
				  or the DEP is increased. The resource areas that are protectable under this
				  statute stay the same, only the reasons for their protection are different by
				  adding this wildlife habitat value. In other words, this amendment does not
				  make M.G.L. c. 131, § 40 a wildlife habitat protection statute. It is
				  still a wetlands protection statute. The presence of wildlife habitat on upland
				  (with no resource areas) does not give the conservation commission or the DEP
				  power to control the work therein not altering resource areas.
The addition of the wildlife habitat interest likewise does
				  not change the work or activities that are regulatable under the statute. There
				  still must be dredging, filling, removing or altering of a resource area to
				  trigger jurisdiction of the conservation commission or DEP. In other words, the
				  amendment does not increase the scope of activities regulatable, but rather
				  adds another reason for the conservation commission or the DEP to ask for
				  information about the work and set conditions.
The addition of the wildlife habitat interest also does not
				  change the role or authority of the conservation commission or the DEP in
				  regard to work in the buffer zone. The applicant still has his option to file
				  either a Request for Determination (RFD) or full application (NOI) and the
				  issuing authority still has the task of deciding if the proposed work will
				  alter resource areas. Commissions still may issue negative determinations if
				  satisfied that precautions in the project have been taken so that there will be
				  no alteration of resource areas. In other words, work in a wildlife habitat
				  found in the buffer zone (not altering resource areas) does not trigger
				  jurisdiction to require a full Notice of Intent.
The addition of the wildlife habitat interest does not mean
				  that the mere presence of wildlife in a resource area is enough to establish
				  habitat value. An amendment to the bill during passage makes clear that
				  something else is necessary, namely the presence of a 'plant community
				  composition and structure, hydrologic regime, or other characteristic'
				  providing significant features for wildlife. In other words, the amendment does
				  not mean that there is a wildlife habitat value to the resource area just
				  because some creatures have been seen there. Instead it is the presence of
				  plant community, hydrologic or other characteristics that is determinitive. The
				  statute protects habitat value not wildlife
per se
.
Furthermore, the presence of these characteristics
				  establishing wildlife habitat does not mean that it is automatic that every
				  resource area is significant to wildlife habitat. The amendment to the bill
				  during passage makes it clear that the features present must be enough to
				  'provide important food, shelter, migratory or overwintering areas, or breeding
				  areas for wildlife.' In other words, the definition of wildlife habitat sets a
				  threshold for a resource area to be significant for wildlife habitat. It must
				  be significant for the particular reasons stated in the definition: food,
				  shelter, migratory or overwintering areas, or breeding areas.
Each point in this "preamble" is reflected in these
				  regulations. The geographical jurisdiction of the regulations is in no way
				  increased beyond the resource areas as previously defined, despite the urging
				  of many individuals and organizations that the Department extend the
				  regulations to cover all "vernal pool" amphibian breeding areas, even those
				  outside current resource areas. The regulations do not change any rules
				  regarding uplands or buffer zones, nor do they "increase the scope of
				  activities regulatable".
Most importantly, the regulations follows a strict
				  interpretation of the statutory definition of "wildlife habitat", consistent
				  with the agreement expressed in the preamble. Unlike the other interests
				  protected under the M.G.L. c. 131, § 40, the term "wildlife habitat" is
				  defined in the legislation. Wildlife habitat means those resource areas which,
				  due to certain physical characteristics, provide "important" wildlife habitat
				  functions (
i.e.
, "important food, shelter, migratory or
				  overwintering areas, or breeding areas for wildlife"). Thus while resource
				  areas are presumed to be significant to the protection of other interests
				  whenever they play a role in protecting the interest, a particular site must
				  play a role in providing important wildlife habitat functions, and must do so
				  because of the presence of specific physical habitat characteristics, in order
				  to warrant a presumption of significance under the new wildlife
				  regulations.
The regulations specify what these physical habitat
				  characteristics are and what are (and are not) to be considered "important"
				  wildlife habitat functions in each resource area. This information is reflected
				  throughout the regulations: in the "Preamble", "Presumptions of Significance"
				  and "Performance Standard" contained in the regulations for each resource area,
				  as well as in the special provisions for "rare" wildlife species (
				  310 CMR
				  10.37 and
				  10.59
				  ) and, for inland resource areas, in
				  310 CMR
				  10.60 "Wildlife Habitat Evaluations". The
				  Department furthermore intends to amplify upon the complex wildlife habitat
				  characteristics and functions of resource areas through additional policy
				  guidances. It is only for specified habitat characteristics and the "important"
				  wildlife habitat functions they serve, that presumptions of significance and
				  performance standards are to be applied. These provisions reflect the following
				  understanding of the statutory definition of wildlife habitat:
A. By limiting the definition of wildlife habitat to include
				  only those areas which "due to (certain physical) characteristics" provide
				  "important" wildlife habitat functions, the Department believes the Legislature
				  meant to protect only those wildlife habitats which, though they may sometimes
				  be present elsewhere, are particularly prevalent and/or valuable in wetland
				  resource areas. The scientific literature indicates that virtually everything,
				  except concrete, provides habitat for at least some wildlife species, yet the
				  Department does not believe it was the intention of the Legislature to protect
				  lawns, cemetaries, golf courses, landfills, or wildlife habitats which typify
				  "upland" areas, just because they happen to be located in wetland resource
				  areas. Based on detailed scientific assessments of the wildlife habitats found
				  in each resource area, certain resource areas (or portions of resources areas)
				  which are generally lacking in special wetland wildlife habitat characteristics
				  and functions, are not presumed in the regulations to be significant to the
				  protection of wildlife habitat. For those resource areas which are presumed
				  significant, only specified wildlife habitat characteristics and functions are
				  protected.
B. By requiring the protection only of "important" wildlife
				  habitat functions (rather than wildlife, per se), the Department believes the
				  Legislature did not intend for the Department to try to save every food source,
				  breeding site, etc. for each individual animal. Instead, the Department
				  believes the Legislature meant to protect wetland habitat which is important to
				  wildlife from a regional or statewide perspective. Therefore, the regulations
				  allow alteration of small amounts of wildlife habitat in most resource areas.
				  For those portions of inland resource areas found to be significant to the
				  protection of wildlife habitat (except bordering vegetated wetlands), the
				  regulations reflect the Department's conclusion that small, one time
				  alterations of up to 10% of the remaining wetland wildlife habitat on a given
				  lot will not harm "important" wildlife habitat functions, and that temporary
				  disruptions of other wildlife habitat is permissible so long as its important
				  wildlife habitat functions are substantially restored or replicated. Certain
				  "water dependent" projects (which the Department believes will be relatively
				  uncommon in inland areas as compared to coastal areas) may also be allowed to
				  proceed at the discretion of the issuing authority under a reduced performance
				  standard without major impacts on "important" wildlife habitat functions of
				  wetland resource areas in the Commonwealth. Because most "important" wildlife
				  habitat in coastal areas is more limited than that in inland areas, the
				  Department has only set a reduced performance standard in some coastal resource
				  areas for "water-dependent projects", those uses and facilities which require
				  direct access to, or location in coastal waters and which therefore cannot be
				  located away from such waters. By requiring such projects to minimize adverse
				  effects on wildlife habitat, while allowing most other projects (no matter how
				  small) to have no adverse effect, "important" wildlife habitat functions of
				  coastal resource areas will be adequately protected. However, because wetland
				  wildlife habitat of rare, officially "state-listed" species is always
				  "important" in both coastal and inland areas, the regulations permit no adverse
				  effects whatsoever on this habitat..
Another alternative for protecting "important" wildlife
				  habitat functions would have been to protect only those specific sites which
				  are of a "high" value for wildlife. The Department considered, but ultimately
				  rejected this alternative. Unfortunately, what is excellent habitat for one
				  species is frequently inadequate for another. For this and other reasons,
				  scientists are currently incapable of setting objective standards for rating
				  the relative value to all wildlife (mammals, reptiles, birds, and amphibians)
				  of sites within most wetland resource areas. Furthermore, without a
				  comprehensive survey of all wetland wildlife habitat in the state (which would
				  be prohibitively time-consuming and expensive), it would be impossible to
				  design a cut-off point for determining when a site is or is not of sufficiently
				  high value to be considered "important". Instead, the regulations generally
				  require no adverse effects on all the "important" wildlife habitat functions
				  existing at each project site (except for certain small alterations or
				  specified project types in some resource areas). Those sites providing few
				  valuable wildlife habitat functions will simply have less to protect than sites
				  that are rich in important wildlife habitat functions..
C. By not defining the term "wildlife", the Department feels
				  the Legislature intended that no preference be given to any particular wildlife
				  species over any other . Consequently, the regulations protect equally all
				  mammals, birds, reptiles, and amphibians for which a resource area provides
				  important wildlife habitat functions. Fisheries (except for specified "rare"
				  species) are not directly protected by most of the regulatory revisions,
				  because current regulations already contain provisions protecting fisheries.
				  Since the habitat needs of most invertebrates overlap those of vertebrate
				  wildlife and fisheries, the Department felt it was not necessary to set
				  separate standards to protect invertebrates, unless they are officially
				  designated rare species in need of special protections. Furthermore, the goal
				  of protecting all wildlife species equally led the Department to promulgate
				  regulations which, within certain limits, require the maintenance of existing
				  wildlife habitat characteristics and functions, rather than allowing
				  development projects to substitute habitat characteristics which, while perhaps
				  helping some species, could harm others.
IV.
SUMMARY OF WILDLIFE
				  REGULATIONS
A.
Presumptions of Significance
. A
				  presumption is created that the following coastal resource areas are
				  significant to the protection of wildlife habitat: Land Under Water; Coastal
				  Beaches; Coastal Dunes; Barrier Beaches; Rocky Intertidal Shores; Salt Marshes;
				  and Land Under Salt Ponds. Presumptions of significance are also made for all
				  inland resource areas, though only for portions of Land Subject to Flooding.
				  For Bordering Land Subject to Flooding, only those areas are presumed
				  significant which have not been extensively altered by human activity;
				  furthermore, except for vernal pool habitat (which is critical to certain
				  amphibians), the presumption is limited to areas on the 10-year floodplain or
				  within 100 feet of the bank or bordering vegetated wetland (whichever is
				  further from the water body). Within isolated Land Subject to flooding, only
				  vernal pool habitat is presumed significant to the protection of wildlife
				  habitat. Vernal pools are presumed to exist, however, only when certified and
				  mapped by the Massachusetts Division of Fisheries and Wildlife.
Like the presumptions of significance found in current
				  regulations regarding other interests protected by M.G.L. c. 131, § 40,
				  presumptions regarding wildlife habitat are generalizations based on a generic
				  study of each resource area. (As noted above, however, unlike presumptions of
				  significance regarding other statutory interests, presumptions regarding
				  wildlife are predicated on a statutory definition which requires the presence
				  of certain physical characteristics providing important wildlife habitat
				  functions.) The prima facie force of the presumption can be overcome by the
				  introduction of sufficient evidence to the contrary; that is, by a showing that
				  the resource area in question functions atypically.
B.
Performance Standards
. For
				  coastal resource areas, little or no change in performance standards are made
				  for Dunes, Salt Marshes or Land Under Salt Ponds. This is because existing
				  standards for fisheries and other interests protected by M.G.L. c. 131, §
				  40 are generally adequate to protect wildlife habitat as well. Only minor
				  changes are made in performance standards for water-dependent projects on Land
				  Under the Ocean, Coastal Beaches, Barrier Beaches, and Rocky Intertidal shores.
				  New, stricter performance standards, however, are set for non-water-dependent
				  projects in these resource areas. Such projects may have no adverse effects on
				  specified wildlife habitat characteristics.
In addition, conservation commissions or the Department may
				  allow maintenance, repair, and/or improvement (but not substantial enlargement)
				  of certain projects such as existing roadways, structures and road drainage
				  facilities in coastal resource areas, subject to whatever conditions are deemed
				  appropriate.
For all resource areas (coastal and inland), no project may
				  have any adverse effect on the local population of a rare, "state-listed"
				  vertebrate or invertebrate animal species, where the project is located within
				  the habitat of such species. These habitats are only presumed to exist where
				  mapped by the Massachusetts Natural Heritage and Endangered Species Program.
				  These areas make up only a small percentage of the land subject to these
				  regulations.
For inland resource areas, no changes in performance
				  standards are made for bordering vegetated wetlands (with the exception of
				  special provisions for rare, state-listed species, described above), because
				  existing performance standards allow no large scale alteration of such
				  wetlands, and even small alterations (under 5,000 sq. ft.) must be replicated.
				  For other inland resource areas, project size "thresholds" of 10% of the
				  wildlife habitat on each lot (with a maximum threshold on each lot of 50 feet
				  of Bank and 5,000 sq. ft. of Land Under Water and Land Subject to Flooding) are
				  established, below which projects are allowed without being considered to
				  impair their capacity to provide important wildlife habitat functions. Such
				  thresholds do not apply to critical "vernal pool (amphibian) habitat" on Land
				  Subject to FLooding. Moreover, once this threshold of the wildlife habitat on a
				  lot has been altered after November 1, 1987, all future projects on that lot
				  (no matter how small) must meet the same performance standard as applies to
				  larger (above-threshold) projects: no adverse effects on wildlife habitat. This
				  performance standard (which applies to inland Banks, Land under Water, and
				  those portions of Land Subject to Flooding found to be significant to the
				  protection of wildlife habitat) forbids alterations of specified habitat
				  characteristics found at the site, insofar as such alterations will after two
				  (2) growing seasons substantially reduce the pre-project habitat value.
				  Applicants must present evidence from a wildlife biologist or similar
				  professional that this standard will be met. Replication of altered habitat
				  off-site is permitted, but under a number of strict conditions.
Just as the regulations impose less stringent performance
				  standards regarding protection of wildlife habitat on "water-dependent"
				  projects in coastal resource areas, the new inland regulations establish a
				  "limited project" status for water-dependent uses. As with other limited
				  projects in inland resource areas, the normal performance standards are
				  suspended and the issuing authority may issue an Order of Conditions along with
				  "such conditions as will contribute to the interests identified in M.G.L. c.
				  131, § 40" for water-dependent uses. However, unlike other limited
				  projects these uses remain subject to the existing performance standards for
				  bordering vegetated wetlands, flood control and storm damage prevention, and
				  they must minimize adverse impacts on other statutory interests for which each
				  affected resource area is found to be significant. This new limited project
				  status was deemed necessary by the Department in light of the significantly
				  stronger performance standards being imposed on most larger projects by the new
				  wildlife habitat regulations.
V.
ISSUES OF MAJOR CONCERN
Public comment on the Department's proposed lower
				  wetlands/wildlife regulations was extensive. While most commentators generally
				  supported the proposed regulations, there were also many suggested changes. The
				  following represents a summary of the most common issues of major concern, and
				  the Department's response thereto as reflected in the final regulations:
A.
Presumptions of Significance
.
				  There was some strenuous opposition to the establishment of presumptions of
				  significance regarding protection of wildlife habitat, based largely on the
				  language of the last paragraph of the "preamble" agreed to by numerous interest
				  groups (as well as the Department) prior to the legislative enactment of the
				  wetlands/wildlife amendment in 1986. Although this paragraph of the preamble
				  does not explicitly state that the signatories agreed that the Department would
				  not extend its practice of the use of presumptions of significance to the new
				  wildlife habitat interest, these commentators argued that such a result was
				  implied by the statement, "Furthermore, the presence of these characteristics
				  establishing wildlife habitat does not mean that it is automatic that every
				  resource area is significant to wildlife habitat."
The Department believes that a reading of the entire
				  paragraph of the preamble makes it clear that this language does not suggest
				  that resource areas should not be presumed significant to the protection of
				  wildlife habitat, but only that presumptions must be based strictly on the
				  presence of certain physical habitat characteristics providing specified
				  "important" wildlife habitat functions in each resource area:
Furthermore, the presence of these characteristics
				  establishing wildlife habitat does not mean that it is automatic that every
				  resource area is significant to wildlife habitat. The amendment to the bill
				  during passage makes it clear that the features present must be enough to
				  'provide important food, shelter, migratory or overwintering areas, or breeding
				  areas for wildlife.'
In other words, the definition of wildlife habitat
				  sets a threshold for a resource area to be significant for the particular
				  reasons stated in the definition: food, shelter, migratory or overwintering
				  areas, or breeding areas
. (emphasis added)
As noted in detail above, this is exactly what the Department
				  has done in creating the presumptions contained in these regulations and
				  certain thresholds below which wildlife habitat functions are irrebuttably
				  deemed not to b e important (with the exception of rare species habitat). As
				  with presumptions of significance regrading all other statutory interests, the
				  presumption for wildlife habitat is based on scientifically supported
				  generalities regarding each resource area, and may be overcome by clear
				  evidence that a specific project site acts atypically.
B.
Expansion of Jurisdiction
.
				  Certain parties suggested that the proposed regulations expanded the
				  jurisdiction of the regulations by adding what can be strict new performance
				  standards to certain resource areas which had previously been subject to less
				  strict standards. The Department disagrees. Adding a new interest to be
				  protected under M.G.L. c. 131, § 40 clearly requires new performance
				  standards in some resource areas, but in no case has the Department changed the
				  definition or boundaries of any resource area as previously defined, nor has it
				  changed any rules pertaining to the buffer zone or uplands. Furthermore,
				  although there were a very large number of comments asking the Department to
				  protect small, upland vernal pools, the Department has consistently rejected
				  this suggestion on the basis that such an action would expand the geographic
				  jurisdiction of conservation commissions and the Department, in contradiction
				  to the intention of most parties supporting the wetlands/wildlife amendment and
				  the Legislature itself.
C.
Vernal Pools
. On the issue of
				  vernal pools, the Department received two groups of comments. As noted directly
				  above, many individuals and organizations pressed the Department to protect all
				  vernal pools, including those outside currently defined wetland resource areas,
				  but this was rejected as an unauthorized expansion of jurisdiction. Many
				  parties, including the Department's own regional staff, noted that because they
				  are often very small in size and usually temporary in nature, the proposed
				  regulatory language on identifying vernal pools would lead to innumerable,
				  frequently insoluable disputes over the presence of such habitats on Land
				  Subject to Flooding. After extensive research on vernal pool identification
				  techniques, the Department concluded that it would be unfair to applicants to
				  retain proposed requirements that could force them to conduct difficult,
				  timely, expensive and often inconclusive searches for possible vernal pools.
				  Instead, the final regulations create a presumption that vernal pools are
				  present only when mapped, where such maps have been certified by the Division
				  of Fisheries and Wildlife. That Division has agreed to establish such a
				  certification program, which will require evidence of the breeding of amphibian
				  species that need vernal pools. Finally, scientific evidence was presented to
				  the Department that areas immediately surrounding vernal pools generally serve
				  all the important nonbreeding habitat functions of amphibians which require
				  vernal pools for breeding. Consequently, the regulations contain performance
				  standards protecting the area within 100 feet of the boundaries of vernal
				  pools.
D.
Floodplains
. Perhaps the most
				  controversial provisions in the proposed regulations were those protecting
				  floodplains (Bordering Land Subject to Flooding). On the one hand, there were
				  many comments urging the Department to protect all wildlife habitats (including
				  fields) throughout the 100 year floodplain, except for those portions altered
				  by human activity. On the other hand, others suggested that the Department has
				  no basis for proposing to presume that woodlands (or other defined areas) on
				  the entire 100-year floodplain were significant to the protection of
				  "important" wildlife habitat functions. The Department recognized some merit in
				  each of these contentions, and incorporated aspects of both in the final
				  regulations.
As noted above, presumptions of significance are based on
				  scientifically grounded generalizations on how resource areas typically
				  function; however, regarding protection of wildlife habitat, they are also
				  limited to those wetland habitats which, due to certain physical
				  characteristics, provide "important" functions for wildlife
				  (
i.e.
, those "special" qualities which, though they may be
				  present in uplands, are particularly prevalent or valuable in wetland resource
				  areas). The Preamble describing important wildlife habitat functions of
				  floodplains in
				  310 CMR
				  10.57(1)(a)(3)  indicates
				  that these functions stem from five major factors: frequent flooding, close
				  proximity to water bodies, moistness of soils, the vegetative corridor which
				  aids movement of wildlife to and from as well as along water bodies, and the
				  "edge" effect which causes wildlife to thrive in the area where two different
				  habitat types meet (
e.g.
, where water bodies or bordering
				  vegetated wetlands meet other habitat). Such habitat clearly is not limited to
				  woodlands, but rather extends to fields and other areas which have not been so
				  altered by human activities as to effectively eliminate their special wetland
				  habitat value. The final regulations reflect this principle. It is also true
				  that the five key factors which provide "important" wetland wildlife habitat
				  functions are generally much more prevalent on the lower floodplain (that
				  closest to the water body) than the upper floodplain. Indeed, as one moves away
				  from the water body and bordering vegetated wetland into the infrequently
				  flooded areas of the 100-year floodplain, the habitat becomes increasingly
				  indistinguishable in its vegetative and hydrologic characteristics from upland
				  areas.
Therefore, in the final regulations the Department determined
				  that a presumption of significance for wildlife habitat was warranted only for
				  the lower floodplain (except for vernal pools, which are clearly essential for
				  certain amphibians wherever they appear on the floodplain). The lower
				  floodplain is defined as areas on the 10 year floodplain or within 100 feet of
				  the bank or bordering vegetated wetland, whichever is further from the water
				  body or waterway. "Important" floodplain habitat on the upper floodplain may
				  also be protected on a case by case basis where evidence of its existence has
				  been demonstrated, though this area is not presumed to be significant to the
				  protection of wildlife habitat.
E.
Thresholds
. The Department
				  proposed the creation of project size thresholds for three resource areas
				  (inland Banks, Land Under Water, and Land Subject to Flooding) below which
				  alterations are not deemed to have an adverse effect on the protection of
				  important wildlife habitat functions. Though there were objections to this
				  concept, the Department found, as explained in detail above, that use of
				  thresholds is the most scientifically valid and least complex method of
				  protecting "important" wildlife habitat in these resource areas, while allowing
				  small, unimportant alterations (
i.e.
, unimportant from a
				  regional or statewide prospective). Many commentators expressed concern that
				  although the proposed threshold alterations may appear small individually,
				  repeated undertakings of threshold projects on the same property could cause
				  large cumulative impacts on wildlife habitat. In response to these comments,
				  the Department has added a provision insuring that such small alterations will
				  not be allowed, cumulatively, to have a major impact on important wildlife
				  habitat functions. The thresholds may only be applied once per lot after the
				  effective date of the wildlife regulations. This rule regarding cumulative
				  impacts applies only to the protection of wildlife habitat on inland Banks,
				  Land Under Water and Land Subject to Flooding. The Department takes no position
				  at this time as to whether this is the appropriate method of addressing
				  cumulative impact issues regarding limited projects or performance standards in
				  effect prior to the promulgation of the new regulations protecting wildlife
				  habitat. There were also numerous comments that the proposed thresholds were
				  too small to allow for certain projects which must necessarily be located on or
				  near water -- for example bridges, marinas, wastewater treatment plants, etc.
				  Rather than raising the thresholds for all projects, however, the final
				  regulations take cognizance of these water-dependent uses by creating a new
				  "limited" project category for such uses (except those in bordering vegetated
				  wetlands) with their own performance standards. To balance the net effect on
				  important wildlife habitat functions, we have tightened the thresholds for
				  non-water-dependent uses on inland resource areas (except bordering vegetated
				  wetlands) to no more than 10% of those portions of an owner's lot found to be
				  significant to the protection of wildlife habitat (the maximum limits of 50
				  linear feet of Bank and 5,000 sq. ft. of Land Under Water or Land Subject to
				  Flooding, contained in the proposed regulations, were retained in the final
				  regulations).
F.
Rare Species
. Most commentators
				  strongly supported protection for rare species, but a number of technical
				  changes were suggested and incorporated into the final regulations. Applicants
				  with proposed projects on "Estimated Habitat Maps" may, if they wish, contact
				  the Natural Heritage and Endangered Species program 90 days before filing their
				  Notice of Intent and receive a response within 45 days, so as to facilitate
				  project designs which will meet rare species performance standards. In all
				  cases, the Heritage Program will have at least 30 days to respond to
				  notification that a proposed project is on the Estimated Habitat map, and no
				  Order of Conditions may be issued before that time.
G.
Wildlife Habitat Evaluations
. A
				  number of commentators found Section 10.60 (which sets standards for
				  determining whether "above threshold" projects on inland Banks, Land Under
				  Water, or Bordering Land Subject to Flooding will adversely effect wildlife
				  habitat) to be confusing. The final regulations, we believe, are clearer. The
				  basic standard for determining adverse effects is whether the project would
				  substantially reduce specified important wildlife habitat functions. Standards
				  for restoration and replication of wildlife habitat were also clarified.
				  Although there were some comments in opposition to allowing off-site
				  replication, we believe that the performance standards for replication are
				  sufficiently stringent to protect wildlife habitat, especially since off-site
				  replication above 5,000 sq. ft. of bordering vegetated wetlands (the most
				  valuable wildlife habitat) remains prohibited under the stringent performance
				  standards contained in the present regulations. Furthermore, an Order of
				  Conditions may require that replicated habitat in fact meets the standard of no
				  substantial reduction in habitat value for an indefinite period in the future,
				  so that further efforts can be required if initial replication is
				  unsuccessful.
PREFACE TO WETLANDS REGULATIONS RELATIVE TO
				  RIGHTS OF WAY MANAGEMENT
1987 REGULATORY REVISION
In 1983, the Massachusetts Pesticide Control Act, M.G.L. c.
				  132B, was amended to require notification of conservation commissions prior to
				  application of herbicides on rights of way. Many commissions became aware for
				  the first time that application of herbicides on rights of way may result in
				  alteration of wetlands and, with the exception of exempt utilities, may require
				  action under the M.G.L. c. 131, § 40. On July 18, 1986, the Department
				  issued a final decision after adjudicatory hearing in DEP Hearing Docket Nos.
				  83-28 and 83-35 (Clinton and Leverett) finding that the application of specific
				  herbicides by the railroads to track and ballast within 100 feet of wetland
				  areas would alter those wetlands and was therefore subject to jurisdiction
				  under M.G.L. c. 131, § 40, requiring the filing of Notices of Intent with
				  the local conservation commissions.
The Department of Food and Agriculture (DFA) initiated a
				  Generic Environmental Impact Report (GEIR) evaluating alternatives for rights
				  of way management. A technical advisory task force of environmentalists,
				  agencies and rights of way managers assisted in the GEIR preparation and, based
				  on results of the study, recommended to the Secretary of Environmental Affairs
				  a framework for a coherent state-wide rights of way regulatory program. DFA
				  published draft regulations to implement this program in 1986 and received
				  extensive public commentary. Final regulations,
				  333 CMR
				  11.00, became effective on July 10, 1987.
The DFA regulations require persons proposing to apply
				  herbicides to rights of way to first receive approval of a five year Vegetation
				  Management Plan (VMP) and Yearly Operating Plan (YOP). These regulations
				  identify certain "sensitive areas", including wetlands and public and private
				  surface and groundwater supplies, where the application of herbicides is, in
				  most instances, prohibited, and areas adjacent to the sensitive areas where use
				  of herbicides is curtailed.
DEP worked closely with DFA to include provisions which give
				  maximum protection for water supplies and provide protection for wetlands at
				  least equal to that provided under the M.G.L. c. 131, § 40 and
				  310 CMR
				  10.00. To eliminate duplicate review under M.G.L. c.
				  131, § 40, DEP has adopted changes to the wetlands regulations which allow
				  herbicide applications on rights of way in accordance with the DFA regulations
				  without filing a Notice of Intent under the M.G.L. c. 131, § 40. However,
				  non-exempt applicants will still be required to file a Request for
				  Determination of Applicability to the appropriate conservation commission to
				  establish boundaries of wetlands on or near the right of way. Specifically,
				  these regulations presume that work performed in accordance with a VMP and YOP,
				  as may be required under DFA regulations, will not alter an area subject to
				  protection under M.G.L. c. 131, § 40.
During the public comment period on its proposed regulations,
				  the Department identified several issues of major concern. After consideration
				  of all comments, the Department has determined that, except for minor points of
				  clarification and the addition of an automatic expiration date, no further
				  changes in the regulations are warranted at this time. A discussion of these
				  issues follows.
A.
Presumption vs. Limited Project
.
				  Several commentators suggested that conservation commissions should retain the
				  authority to review each herbicide application on rights of way through the
				  usual Notice of Intent process. These regulations create a presumption that
				  herbicide application carried out in accordance with an approved VMP and YOP
				  under the DFA regulations will not alter wetlands and that the filing of a
				  Notice of Intent is therefore not required. This procedure was established
				  pursuant to the recommendation of the GEIR task force which states:
The regulations which provide for approval of Vegetation
				  Management Plans by the Department of Food and Agriculture should be
				  conditioned on review and approval by the Department of Environmental
				  Protection (DEP) of those portions of the Plans that deal with wetlands. The
				  DEP should be required to certify to the DFA that these portions of the Plans
				  will result in compliance with the substantive and procedural provisions which
				  protect the interests of the M.G.L. c. 131, § 40. If the regulations are
				  so drawn, activities under a Plan approved by DEP would not constitute an
				  alteration of wetlands as defined under
				  310 CMR
				  10.00.
Since the DFA regulations provide that DEP is a member of the
				  VMP advisory panel which reviews and makes recommendations on the approval of
				  VMPs, the GEIR task force recommendations have been fully implemented.
				  Therefore, the Department has determined that it would be duplicative to
				  require the filing of individual Notices of Intent in each municipality for
				  each application of herbicides to rights of way.
B.
Adequacy of Setback from
				  Wetlands.
The DFA rights of way regulations prohibit application
				  of herbicides on or within ten feet of wetlands and strictly limit herbicide
				  application from ten feet to 100 feet of wetlands. Many commentators questioned
				  the adequacy of these setback requirements and suggested that a 50 or 100 foot
				  no spray zone would be more appropriate. Several commentators suggested that
				  the proposed setback requirements were inconsistent with the Department's
				  adjudicatory hearing decision in the Clinton and Leverett cases.
The no spray zone surrounding wetlands is necessary for three
				  reasons: to compensate for mapping errors, to compensate for applicator errors
				  and to assure that herbicides will not migrate into wetlands after application
				  on the adjacent uplands. During the public comment period, the Department
				  received no evidence demonstrating that the ten-foot setback established in the
				  DFA regulations will not be adequate. The DFA regulations establish a procedure
				  for selecting a limited number of herbicides that may be applied in the limited
				  spray zone (from 10 to 100 feet from wetlands) which is adjacent to the no
				  spray zone. Herbicides that will be selected for use in these limited spray
				  zones under the DFA regulations are those which available data demonstrate will
				  not migrate further than ten feet.
The applicators have argued that they can maintain a level of
				  accuracy in mapping of wetlands and in application of herbicides to assure that
				  herbicides will not be inadvertently applied within ten feet of wetland areas.
				  The Department is not convinced that these claims are unreasonable; however, in
				  order to confirm their accuracy, the Department has included in the final
				  regulations an automatic expiration date two years from the effective date,
				  which is coterminous with the expiration date of the DFA regulations. During
				  the two-year effective period of these regulations, the Department expects
				  applicators to conduct studies monitoring herbicide application operations and
				  to submit a report concerning impacts of herbicide application on wetlands
				  under these new regulations detailing the accuracy of wetlands mapping, the
				  accuracy of herbicide application, and the extent of herbicide migration. The
				  results of this study will provide a basis for recommendations by the
				  Department for amendments to the DFA regulations and a decision on
				  reauthorization of these amendments to the Department's wetland
				  regulations.
Finally, the Department does not find the setbacks
				  requirements established in the DFA regulations to be inconsistent with its
				  decision in the Clinton and Leverett cases. In that decision, the Department
				  assumed a worst-case analysis in terms of an herbicide known to be highly
				  mobile which was applied to the track and ballast areas adjacent to wetlands.
				  The Department found, based on the particular facts of these cases and the
				  particular herbicide proposed for application that there would be a migration
				  of that herbicide into the wetlands from application within the 100-foot buffer
				  zone that would be sufficiently concentrated to cause alterations of the
				  wetlands plants. However, the DFA rights of way management regulations set up a
				  procedure for identification of herbicides which are relatively immobile and
				  which are preapproved for application on the buffer zone in order to avoid
				  alteration of wetlands plants. Furthermore, guidelines for application of the
				  selected herbicides will also be established. Finally, no herbicides may be
				  applied within ten feet of wetland areas. In light of the strict controls
				  placed on application of herbicides within the 100-foot buffer zone under the
				  DFA regulations, the Department finds that adoptions of the proposed regulatory
				  scheme is fully consistent with its previous adjudicatory hearing decision in
				  the Clinton and Leverett cases.
C.
Impacts of Herbicides Application on Wildlife
				  Habitat.
The Department is currently developing regulations under
				  M.G.L. c. 131, § 40 to protect wildlife habitat. The effective date of
				  these regulations is November 1, 1987. One commentator expressed concern
				  regarding the impact of herbicide application on wildlife habitat in wetlands,
				  and particularly on the habitat of rare, "state-listed" wildlife species. As
				  discussed above, the Department has determined that the DFA regulations provide
				  for protection of wetlands from alterations due to herbicide application.
				  However, the 0FA regulations do not include floodplains in their definition of
				  wetlands, although those regulations do prohibit herbicide application within
				  10 feet of any standing or flowing surface water. Beyond that, there is no
				  specific protection of wildlife habitat, including rare species, in floodplain
				  areas.
The Department is concerned that the DFA regulations do not
				  specifically address protection of wildlife habitat in floodplains, in
				  particular those rare, "state-listed" wildlife species. Therefore, as a member
				  of the VMP advisory panel, the Department will review VMPs for potential effect
				  on wildlife habitat and specifically will recommend disapproval of any VMP that
				  will have an adverse effect in areas mapped by the Natural Heritage and
				  Endangered Species Program as habitat of any rare, "state-listed" wildlife
				  species. Furthermore, the Department expects applicators to incorporate into
				  the previously discussed two-year monitoring study a section detailing the
				  effects of herbicide application on wildlife habitat in floodplains and on the
				  habitat of rare, "state-listed" wildlife species. The Department will use the
				  results of this study as the basis for recommending any amendments to the DFA
				  regulations and a decision on reauthorization of these amendments to the
				  Department's wetlands regulations.
PREFACE TO THE WETLANDS REGULATIONS
1983 REGULATORY REVISIONS
I.
INTRODUCTION
Under the provisions of the Wetlands Protection Act, M.G.L.
				  c. 131, § 40 ("M.G.L. c. 131, § 40"), no person may remove, fill,
				  dredge or alter certain resource areas without first filing a Notice of Intent
				  and obtaining an Order of Conditions. The Act requires that any order so issued
				  must contain conditions sufficient to preserve and promote the following public
				  interests: the protection of public or private water supply and groundwater
				  supply, the enhancement of flood control and storm damage prevention, the
				  prevention of pollution and the protection of fisheries and land containing
				  shellfish.
Pursuant to the rulemaking authority set forth in M.G.L. c.
				  131, § 40, the Department of Environmental Protection first adopted
				  wetlands regulations in 1974, amending them in 1977 and again in 1978. After
				  extensive review, the Department is now issuing a comprehensive revision of its
Wetlands Regulations
,
				  310 CMR
				  10.00. Not only has Part I,
Regulations
				  for all Wetlands
, been completely rewritten, but a new Part III
				  has been added:
Additional Regulations for Inland
				  Wetlands
,
				  310 CMR 10.51 et
				  seq. Other than minor changes in format, however, no revisions have been made
				  to Part II,
Additional Regulations for Coastal
				  Wetlands
,
				  310 CMR 10.21 et
				  seq. In the Department's judgment, the Part II regulations have worked well, so
				  much so that their salient elements -
e.g.
, the use of
				  presumptions of significance and performance standards - have been incorporated
				  in Part III.
II.
THE RULEMAKING PROCESS
During the entire period that its regulations were in
				  preparation, the Department had the benefit of advice and consultation from
				  knowledgeable groups and individuals, most particularly representatives from
				  the development and environmental communities, civil engineers and wetlands
				  scientists. Where consensus was attained and deemed consistent with the
				  Department's responsibilities under M.G.L. c. 131, § 40, the regulations
				  reflect it; in other instances, the Department weighed conflicting points of
				  view and chose a course o f action that in its judgment best served both the
				  interests identified in M.G.L. c. 131, § 40 and private property
				  rights.
To briefly summarize the lengthy process by which these
				  regulations were prepared; during a large part of 1979 a special task force
				  comprised of representatives of the environmental groups, the developers,
				  general contractors, utilities, the Greater Boston Chamber of Commerce, land
				  use consultants, the Executive Office of Communities and Development, the
				  Attorney General's Office and the Department met on a regular basis and
				  ultimately produced a working set of draft regulations, much of which is
				  incorporated in the regulations now being promulgated. Certain issues remained
				  unresolved, however, and in the Fall of 1980 a smaller group was formed to
				  assist the Department in preparing its public hearing draft. This group - -
				  which consisted of a wetlands scientist from the University of Massachusetts, a
				  civil engineer with extensive wetlands experience, an environmental attorney,
				  the general counsel for the Home Builder's Association of Massachusetts, a
				  senior staff member from the Department's Division of Wetlands Protection and
				  the Division's Director -- met on a number of occasions to discuss the
				  remaining issues and to provide the Department with the points of view of the
				  various constituencies represented.1
On May 25, 1981, the Department issued its proposed
				  regulations for public comment. Public information meetings were held
				  throughout the state during the first two weeks of June, and were closely
				  followed by public hearings.2 In addition to
				  testimony taken during the hearings, the Department received and reviewed 142
				  letters containing approximately 900 separate comments on various aspects of
				  the proposed regulations.
To assist the Department in weighing these comments, in
				  resolving the remaining scientific and engineering issues and in preparing its
				  final draft, a Wetlands Technical Review Group was established, consisting of
				  representatives from the Division of Wetlands Protection, the Division of Fish
				  and Wildlife, the Division of Water Pollution Control, the Department's
				  Metro-Boston/Northeast Region, the Office of Coastal Zone Management, the
				  University of Massachusetts and a number of engineering consulting firms.
				  Another advisory group was created to assist the Department in making final
				  revisions to the many forms required for administration of M.G.L. c. 131,
				  § 40, forms that are now set forth at 310 CMR 10.99. Finally, in an effort
				  to more accurately assess the impact of the new regulations on development in
				  Massachusetts, the Division of Wetlands Protection and the MEPA unit of the
				  Executive Office of Environmental Affairs jointly reviewed all Environmental
				  Notification Forms filed between October 1, 1980 and September 21, 1981,
				  establishing the precise extent to which the projects involved would experience
				  greater or lesser regulatory control under the new regulations.
III.
THE GENERAL APPROACH
Above all, the regulations are intended to put an end to the
				  confusing, inconsistent and sometimes unnecessary regulatory practices that
				  have attended administration of M.G.L. c. 131, § 40 in the past,
				  especially with respect to the issue of jurisdiction. At one extreme, it has
				  been argued by those espousing a very restrictive interpretation of M.G.L. c.
				  131, § 40 that jurisdiction is limited to only those activities that are
				  undertaken within the boundaries of the areas specified in M.G.L. c. 131,
				  § 40. This is erroneous, in the Department's view, for a close reading of
				  M.G.L. c. 131, § 40 indicates that regulation extends not only to such
				  activities but to all work, regardless of where it is located, that has the
				  demonstrable effect of removing, filling, dredging or altering an area subject
				  to protection under M.G.L. c. 131, § 40.
1 In addition, throughout the
				  entire rulemaking process successive drafts of the regulations were distributed
				  to a broad range of agencies, groups and individuals for their comment. Input
				  was sought and received from the Executive Office of Communities and
				  Development, the Department of Environmental Management, the Department of
				  Public Works, the Department of Agriculture, the Massachusetts Coastal Zone
				  Management Office, the MEPA unit of the Executive Office of Environmental
				  Affairs, the Joint Committee on Natural Resources and Agriculture, the
				  Governor's Development Office, the Greater Boston Chamber of Commerce, the Home
				  Builders Association of Massachusetts, Associated General Contractors of
				  Massachusetts, Construction Industries of Massachusetts, New England Power
				  Company, Boston Edison Company, New England Legal Foundation, Massachusetts
				  Association of Professional Foresters, Massachusetts Association of
				  Conservation Commissions, Massachusetts Forests and Parks
				  Association/Environmental Lobby of Massachusetts, Massachusetts Audubon
				  Society, the Conservation Law Foundation of New England and a number of private
				  engineering and land use consulting firms. The Department is grateful for the
				  time and effort expended by these groups, and to a significant extent the
				  proposed regulations reflect their insights, expertise and sound
				  counsel.
2 Public information meetings were
				  held in Lakeville (June 2, 1981), Holyoke (June 3, 1981), Worcester (June 8,
				  1981) and Lexington (June 17, 1981). Public hearings were held in Lakeville
				  (June 17, 1981), Holyoke (June 18, 1981), Worcester (June 22, 1981) and Boston
				  (June 23, 1981).
At the other extreme, it has been the Department's experience
				  that considerable upland acreage has been unnecessarily regulated by local
				  conservation commissions on the basis of highly questionable assumptions with
				  respect to the anticipated impact of a proposed project on a protected area
				  located some distance away. Some projects have been subject to regulation in
				  their entirety, even though only a portion of the proposed work is adjacent to
				  a wetland or adjacent to land subject to flooding. Similarly, entire projects
				  have on occasion been subject to unnecessary and costly delay because a portion
				  of the site is adjacent to a wetland, even though no actual work is proposed
				  within 100 feet of that area. Finally, in some instances projects have been
				  regulated even though no part of the site is in or even adjacent to an area
				  subject to protection under M.G.L. c. 131, § 40.
In short, under current regulatory practices a substantial
				  amount of the upland acreage still available for development in the
				  Commonwealth is subject to preconstruction review of doubtful legal and
				  practical validity.3 It is the Department's view
				  that in the vast majority of cases it is unnecessary to regulate projects
				  outside land subject to flooding and beyond 100 feet from freshwater wetlands
				  bordering water bodies, provided that the wetlands themselves are left intact
				  in order to attenuate project impacts.
It is also the Department's view that while engineering
				  solutions can protect the statutory interests at stake in most projects located
				  in or near banks, floodplains and land under waterways and water bodies, this
				  is not the case with bordering freshwater wetlands. The complex natural
				  functioning of these wetlands cannot be replicated, and no amount of
				  engineering will enable such areas to be filled or substantially altered
				  without seriously impairing the statutory interests they
				  serve.4 The regulations now promulgated reflect both
				  this conclusion and the Department's concern with overregulation of uplands;
				  while placing strict limits on those areas to be subject to preconstruction
				  review, the regulations substantially increase the protection to be provided
				  them.
Thus for the development community the most troublesome
				  aspect of the regulations has been that in a majority of cases major
				  alterations of freshwater wetlands bordering on water bodies would be greatly
				  restricted or prohibited. According to the U.S. Soil Conservation Service
				  estimates, however, these areas represent only 4.36 percent of the total land
				  and water area of the state, or approximately 352,975 acres. A large portion of
				  this area is already unbuildable because it is in public or quasi-public
				  ownership for open space purposes,5 because natural
				  limitations such as the depth of organic soils make building
				  impractical6 o r
3 The Department estimates that as
				  much as 10,000 acres of upland may be unnecessarily regulated each year.
4 In issuing its proposed
				  regulations for public comment, the Department specifically requested
				  interested parties to comment on this position and on a suggested alternative
				  that would leave the issuing authority with discretion to set conditions for
				  work in bordering vegetated wetlands. Nothing was submitted in response or
				  emerged in the course of further review of the question to alter the
				  Department's original conclusion that there is no technical basis for
				  conditioning work in bordering vegetated wetlands. See Section V.C., however,
				  for a discussion of certain limited alterations of these wetlands that the
				  Department has concluded can be carried out without impairment of their
				  function.
5 The United States Soil
				  Conservation Service estimates that approximately 60,000 acres of the
				  freshwater wetlands in Massachusetts are in public or quasi-public
				  ownership.
6 According to soil studies done
				  by the U.S. Soil Conservation Service, three percent of the total land and
				  water area of Massachusetts is freshwater wetlands underlain by highly
				  compressable organic materials (peat, muck, and shallow and deep marsh). Thus
				  approximately 242,882 acres or 68.81 percent of the Commonwealth's bordering
				  freshwater wetlands is already greatly limited if not unavailable for
				  development. because existing local and federal laws already restrict building
				  in these areas
.7 On the other hand, as
				  previously indicated the development community gains a significant decrease in
				  regulation of adjacent uplands, along with a substantial increase in the
				  clarity, certainty and consistency of decision-making.
For the environmental community, the most troublesome aspect
				  of the regulations has been the fact that there would be a significant loss of
				  control over work proposed in adjacent uplands. What the environmental
				  community and the general public gain, on the other hand, is that under the
				  revised regulations freshwater wetlands which border water bodies remain
				  substantially intact. Jurisdiction continues to be asserted over work proposed
				  within 100 feet of bordering wetlands when it appears that such work will alter
				  the wetland. Beyond that distance, however, and beyond the boundary of land
				  subject to flooding, preconstruction review is not required because the
				  Department has determined it to be unlikely that the work will cause impacts
				  that cannot be sufficiently attenuated by the wetland system itself.
IV.
SUMMARY OF THE REGULATIONS
The promulgated regulations, in many of their particulars,
				  represent a departure from existing standards and procedures. In other
				  respects, these regulations codify for the first time administrative practices
				  that over the years have evolved in the course of the regulatory work performed
				  by the Department's wetlands staff and local conservation commissions. As noted
				  above, these regulations are intended above all to promote clarity, certainty
				  and consistency in decision-making, both on the local level and on appeal to
				  the Department. Accordingly, the regulations address with great specificity the
				  three major issues that in the Department's experience are at the heart of much
				  of the past regulatory confusion: the question of jurisdiction, the question of
				  a resource area's significance and the question of the extent to which work is
				  to be conditioned (
i.e.
, the performance standards to be
				  applied).
A.
Jurisdiction
In the past, a major item of concern for developers, home
				  builders and private property owners has been the fact that the wetlands
				  regulations did not provide clear and workable guidance as to just what areas
				  were subject to regulation. As a result, jurisdiction has been asserted
				  inconsistently by local conservation commissions, and on occasion in excess of
				  their statutory mandate; indeed, the Governor's Commission to Simplify Rules
				  and Regulations has identified this issue as a major target for regulatory
				  reform.8
7 Examples include local zoning
				  and non-zoning wetlands by-laws, local flood plain zoning, the U.S. Army Corps
				  of Engineers "404" permit program and the Federal Emergency Management Agency's
				  ("FEMA") flood insurance program. FEMA estimates that over 40,000 acres in
				  Massachusetts are in the floodway, much of which is wetland. No development is
				  permitted in the floodway that will increase flood levels during the 100-year
				  flood, a requirement that in most cases amounts to a prohibition on
				  building.
8 See Report of the Governor's
				  Commission to Simplify Rules and Regulations Recommendation No. 11:
				  "Quantitative thresholds for delimiting significant wetlands subject to the law
				  must be incorporated into the regulations." The Commission goes on to recommend
				  (1) that regulated wetlands should contain at least 50 percent or more of
				  indigenous wetlands plants, a limitation that the Department concurs in and has
				  incorporated in its regulations at
				  310
				  CMR 10.55(2)(c), and (2)
				  that minimum or lower level thresholds be established for the water bodies
				  specified in M.G.L. c. 131, § 40, thresholds that now can be found in the
				  revised regulations in both the definitions section,
				  310 CMR 10.04, and in
				  Part III.
Accordingly, the new promulgated regulations clarify
				  jurisdiction by providing explicit definitions and boundaries for each of the
				  resource areas identified in M.G.L. c. 131, § 40; as M.G.L. c. 131, §
				  40 requires, work within these areas cannot go forward without the filing of a
				  Notice of Intent and the issuance of an Order of Conditions. In addition,
				  because it is the Department's judgment that work undertaken within 100 feet of
				  bordering vegetated wetlands has a very high likelihood of adversely affecting
				  those ecologically sensitive areas, the regulations require that anyone
				  contemplating such work must file a Request for a Determination of
				  Applicability with the conservation commission in order to insure that prior to
				  commencement of the work an informed and public decision will be made as to
				  possible impacts.9 Finally, the regulations make
				  clear that work outside the resource areas and outside the 100-foot buffer zone
				  surrounding bordering vegetated wetlands can proceed without preconstruction
				  review; jurisdiction over such work can be asserted only upon a showing that it
				  has actually altered a resource area.
B.
Significance
Clearly defining the resource areas and their boundaries, of
				  course, is but the first step; regulation of work within such areas can be
				  justified only if the area contributes in some significant way to the interests
				  identified in M.G.L. c. 131, § 40. In order to guide conservation
				  commissions in making this determination, the Department has studied each of
				  the resource areas generically, and has developed presumptions of significance
				  for each.10 These presumptions can be overcome by a
				  showing that the resource area in question functions atypically; their role in
				  the regulatory process is only to provide a formal statement of value and to
				  serve as a device by which decision-making, especially on the local level, can
				  be influenced so as to insure that each resource area is accorded its proper
				  ecological value, no more or no less. The use and derivation of these
				  presumptions of significance are discussed further in Section V of this
				  Preface.
C.
Performance Standards
Finally, general performance standards have been developed
				  for each of the resource areas, standards that are to be utilized by the
				  conservation commissions and Department staff in drafting orders of conditions
				  once an area has been determined significant to one or more of the interests
				  set forth in M.G.L. c. 131, § 40. In general, the standards are intended
				  (1) to maintain the channel carrying capacity of banks and land under waterways
				  and water bodies, (2) to preserve the flood storage capacity of floodplains and
				  (3) to prevent major alterations of core bordering vegetated wetlands
				  (
i.e.
, the portion of those wetlands bordering waterways and
				  water bodies within which wetlands vegetation clearly predominates).
9 The buffer zone concept has been
				  used by conservation commissions and the Department's wetlands staff for years;
				  its inclusion in the regulations is therefore no more than a codification of
				  past practices. As the regulations make clear, however, jurisdiction does not
				  automatically extend outward 100 feet from the edge of a bordering vegetated
				  wetland; although some conservation commissions have taken this position in the
				  past, there is nothing in M.G.L. c. 131, § 40 to support it. Ultimately,
				  the buffer zone filing requirement is only a device by which local conservation
				  commissions can be informed of work which in the Department's experience is
				  sufficiently close to vegetated wetlands to pose significant potential for
				  adverse impact. A notice of intent may be required for such work, but only
				  after a determination has been made that the work will alter the neighboring
				  wetland. For a further discussion of this issue, see Section V.A. of this
				  Preface.
10 Land subject to flooding, for
				  example, has been found to be significant to flood control and storm damage
				  prevention. See
				  310 CMR
				  10.57(1)(a)  and
				  10.57(1)(b).
				  Bordering vegetated wetlands, on the other hand, have been found significant to
				  all of the interest identified in M.G.L. c. 131, § 40. See
				  310
				  CMR 10.55(1).
V.
ISSUES OF MAJOR CONCERN
In soliciting public comment on its proposed regulations, the
				  Department identified a number of issues that were of particular concern and
				  that had generated the most debate during its deliberations and preparation of
				  earlier drafts. After consideration of all comments and extended consultation
				  with the Technical Review Group, final regulations have now been prepared and
				  promulgated. For some of these major issues, significant changes have been
				  made; for others, the Department found no reason to alter its original
				  position. A discussion of each of these issues follows.
A.
Regulation of Work Within the 100-Foot Buffer
				  Zone
It has been the Department's experience that any project
				  undertaken in close proximity to a wetlands resource area has a high likelihood
				  of resulting in some alteration of that area, either immediately, as a
				  consequence of daily operation of the completed project. The problem becomes
				  particularly acute where bordering vegetated wetlands are involved; inadvertent
				  damage to these sensitive areas can easily occur and in many instances is
				  irreparable. Accordingly, the adopted regulations require that any person
				  intending to perform work within 100 feet of a bordering vegetated wetland must
				  submit a Request for a Determination of Applicability to the local conservation
				  commission.11 In this way the commission has an
				  opportunity to review the proposed project and to determine whether any
				  alteration of the neighboring wetland will occur. If such a determination is
				  made, then the project will require the filing of a Notice of Intent, just as
				  if it were proposed for inside the wetland itself.
Of course, anyone contemplating a project within 100 feet of
				  a bordering vegetated wetland can forego this preliminary determination by
				  simply filing a Notice of Intent, an option that may be appropriate in those
				  cases where it is obvious that the proposed work will indeed have an impact on
				  the wetland. Equally, where the applicant proposes to take appropriate
				  engineering measures to prevent impact on a neighboring wetland (and fully
				  documents such measures in the Request for Determination of Applicability)
				  there is no legitimate basis for requiring a Notice of Intent.
The proposed regulations called for the filing of a Notice of
				  Intent whenever a conservation commission determined that work within a buffer
				  zone would be "likely to alter" a neighboring wetland. Considerable opposition
				  was encountered to this standard, primarily from those who feared that such
				  language would encourage conservation commissions to assert jurisdiction over
				  work in the buffer zone even in cases where the likelihood of impact was so
				  remote as to be negligible. The Department stands by its experience that work
				  performed in close proximity to wetlands often has an impact on them, but in
				  order to insure that jurisdiction is asserted only in those cases where the
				  likelihood of impact has been clearly and unquestionably established, the
				  language of
				  310 CMR 10.02(2)(b)
				   has been tightened from "likely to alter" to
				  "will alter." In making this change, the Department seeks only to emphasize
				  that jurisdiction is not to be automatically asserted over work in the buffer
				  zone; it is still the intent of the regulations that whenever it is
				  demonstrated that work in a buffer zone will have an impact on a neighboring
				  wetland a Notice of Intent will be required and an appropriate Order of
				  Conditions obtained.
11 Under M.G.L. c. 131, § 40,
				  any person may request the conservation commission to determine whether its
				  provisions are "applicable to any land or work thereon." The procedures for
				  obtaining such a determination are set forth in
				  310 CMR
				  10.05(3).
Some commentators have also questioned the Department's
				  authority to establish a buffer zone, citing the recent Appeals Court case of
Town of Rutland v . Fif e
, Mass. App. Adv. Sh. (1981)
				  308.12 Such objections, however, misconstrue the
				  intended nature and function of the buffer zone; as noted above, its purpose is
				  not to expand jurisdiction automatically beyond the boundaries of bordering
				  vegetated wetlands, but to provide a mechanism by which local conservation
				  commissions can be notified of projects located outside these boundaries but
				  sufficiently close thereto to pose a potential environmental threat. Only in
				  the event that the conservation commission concludes that the proposed project
				  will alter the wetland is a Notice of Intent required.
Indeed, the concept of a buffer zone is hardly novel;
				  although its precise origins are obscure, it has been informally applied for
				  years by conservation commissions and the Department's wetlands staff. If
				  anything, the regulations will put an end to the misconception, apparently
				  still held by some commissions, that jurisdiction under M.G.L. c. 131, §
				  40 extends 100 feet beyond wetlands boundaries, irrespective of whether work in
				  that zone will have any impact on the wetland.
In order to lessen the burden on persons planning projects
				  within the buffer zone, the information required of them has been kept to a
				  minimum. See Form 1, Request for a Determination of Applicability, 310 CMR
				  10.99. At the applicant's option, of course, supplementary information can be
				  submitted to describe the manner in which proposed preventive measures will
				  operate to insulate the wetland from damage and to demonstrate why no
				  alteration of the wetland is likely.
B.
Regulation of Work at Distances Greater Than
				  100 Feet From Bordering Vegetated Wetlands
A number of commentators questioned the Department's decision
				  to limit the buffer zone to 100 feet and to require no preconstruction review
				  for projects beyond that zone. They point to instances in which construction
				  activity taking place well beyond the boundaries of a wetland has had an
				  adverse impact on it, and emphasize the irreparable damage that such work can
				  cause. Whatever protective zone is established will by its very nature be
				  somewhat arbitrary, however, and in the Department's judgment and experience
				  the likelihood of impact becomes so attenuated at distances greater than 100
				  feet that preconstruction review can no
12 The Department questions
				  whether the original opinion in
Rutland v. Fif e
was in any
				  way relevant to the validity of the 100-foot buffer zone contained in its
				  regulations. In any event, the issue is now moot; on motion of the Attorney
				  General's Office, the Appeals Court modified its opinion by adding the
				  following footnote:
We do not decide the question whether work must be done in a
				  wetland in order to constitute alteration of that wetland. Footnote, corrected
				  page 309.
Under M.G.L. c. 131, § 40, the filing of a Notice of
				  Intent is required whenever proposed work will "remove, fill, dredge or alter"
				  a resource area. There is nothing in the text of M.G.L. c. 131, § 40 to
				  indicate that such work can be regulated only when it takes place within the
				  borders of a resource area, nor in the Department's judgment would such a
				  limitation be appropriate; as noted above, the effects of construction well
				  beyond the border of a wetland will often cause significant and irreparable
				  damage to that area. longer be justified.13
				  Accordingly, projects undertaken beyond the buffer zone are subject to
				  regulation only when alteration of the wetland actually occurs,
				  310 CMR
				  10.02(2)(c). Furthermore, it
				  is the Department's expectation that the regulatory scheme it has adopted will
				  provide a clear incentive for developers to stay far removed from wetlands,
				  since projects undertaken beyond the buffer zone will thereby avoid
				  preconstruction review.
C.
Performance Standards: Bordering Vegetated
				  Wetlands
As noted above, performance standards similar to those
				  developed by the Department for coastal wetlands have been incorporated in Part
				  III of the regulations for each of the inland resource areas identified in
				  M.G.L. c. 131, § 40. When an Order of Conditions is drafted by either a
				  local conservation commission or the Department these standards will provide
				  the general guidelines by which the proposed work is to be conditioned. In the
				  case of bordering vegetated wetlands, as defined in
				  310
				  CMR 10.55, the Department has concluded that
				  once such an area is determined to be significant to one or more of the
				  interests specified in M.G.L. c. 131, § 40 any alteration or destruction
				  of that area will impair if not eliminate its capacity to contribute to the
				  protection of those interests. Accordingly, the performance standards for
				  bordering vegetated wetlands allow work in those areas only under very narrowly
				  defined circumstances.
Several commentators have questioned whether the Department
				  has the authority, through its regulations, to limit construction activities in
				  this manner; to the extent that prohibition is allowed at all, they argue, it
				  is only pursuant to the Wetlands Restriction Act, M.G.L. c. 131, §
				  40A.14 There are a number of responses to this
				  argument, and because the performance standards for bordering vegetated
				  wetlands are at the very heart of the Department's regulations, they will be
				  discussed in some detail.
First, it should be noted that to the extent that the
				  regulations can be characterized as prohibiting construction, it is only with
				  respect to the most ecologically sensitive of the many resource areas
				  identified in M.G.L. c. 131, § 40. In all other areas, the regulations now
				  make clear, work can go forward under performance standards that are explicit
				  in the protective measures that must be taken but are by no means prohibitive
				  in their impact on development. It is only in bordering vegetated wetlands, the
				  Department has concluded, that the interests of M.G.L. c. 131, § 40 cannot
				  be protected other than by leaving the existing wetland plant community intact.
				  While retention and detention basins and compensatory storage measures can
				  replicate the flood control value of bordering vegetated wetlands, there are no
				  engineering solutions currently
13 At one point in its
				  deliberations, the Department considered the possibility of employing a matrix
				  approach to work done outside of but in close proximity to a wetlands boundary,
				  utilizing certain factors to arrive at a buffer distance that would vary with
				  local topography and project size. This approach was ultimately discarded as
				  far too complex and cumbersome for applicants to deal with and conservation
				  commissions to administer.
14 As with the buffer zone, the
				  stringent performance standards for bordering vegetated wetlands can hardly be
				  characterized as revolutionary. Under the present regulations pertaining to
				  salt marshes, the coastal equivalent of bordering vegetated wetlands, no
				  project may be allowed that will destroy any portion of a salt marsh,
				  310 CMR
				  10.32(3). Similarly, under
				  the present 310 CMR 10.2(27) an Order of Conditions "shall regulate or prohibit
				  the (proposed) activity". See also letter of April 26, 1976, from the Chief of
				  the Attorney General's Environmental Protection Division to all Conservation
				  Commissions, written in the aftermath of
MacGibbon v. Board of Appeals
				  of Duxbury
, 369 Mass. 512 (1976) and concluding that in our view,
				  therefore, municipalities may continue to protect wetlands by the enactment of
				  conservation bylaws under the Zoning Act and by the imposition of conditions or
				  the prohibition of alteration of wetlands under M.G.L. c. 131, § 40.
				  available that can replace the capacity of such wetlands to renovate water
				  quality or to provide food, cover and habitat for
				  fisheries.15
In addition, the Department has defined the boundaries of
				  bordering vegetated wetlands areas in a conservative manner, so that only the
				  most essential inner reaches of these systems are subject to the strict
				  performance standards; under
				  310
				  CMR 10.55(2)(c)  "the
				  boundary of bordering vegetated community consists of the wetlands plant
				  species identified in M.G.L. c. 131, § 40." Compared to the expansive and
				  often ad hoc boundary decisions occasioned by the previous regulations, the new
				  regulations amount to a significant increase in the land area available for
				  development.
Finally, after review of the comments and consultation with
				  the Technical Review Group, the Department has identified two further means by
				  which slight intrusions at the periphery of subject wetlands can be allowed
				  without impairment of the functions they serve. Both such exceptions to the
				  general prohibition on work in bordering vegetated wetlands have been carefully
				  circumscribed, and are available only at the discretion of the issuing
				  authority. The first, addressed at
				  310
				  CMR 10.55(4)(b), allows the
				  loss of up to 5000 square feet of subject wetlands when the wetland habitat is
				  replaced in accordance with the strict standards set forth in
				  310
				  CMR 10.55 (4 )(b )(1 )- (7 ). The second
				  provision permits the filling of linear wetland formations of less than 500
				  square feet, where such formations extend from the main body of subject
				  wetlands into adjacent uplands. These formations characteristically occur along
				  the edges of wetland systems in the glaciated northeast, and pursuant to
				  310
				  CMR 10.55(4)(c)  they may be
				  filled in those cases where the issuing authority decides that a project cannot
				  otherwise go forward. In the Department's judgment, any such exception must be
				  carefully conditioned by the issuing authority but is nevertheless appropriate
				  because the narrow linear configuration of these formations means that (1) they
				  represent a very small percentage of the surface area of subject wetlands
				  within the state, (2) they can be distinguished clearly from the main body of
				  subject wetlands, thus providing a definite limit to the amount of filling
				  allowed and (3) they tend to divide otherwise buildable lots into parcels too
				  small for practical use.
For the foregoing reasons, the Department concludes that its
				  performance standards for bordering vegetated wetlands will not only preserve
				  and protect the critical functions provided by this type of resource, but will
				  not unduly impair development in the Commonwealth, a conclusion buttressed by
				  the comprehensive review of past Environmental Notification Forms undertaken
				  jointly by the Division of Wetlands Protection and the MEPA Unit of the
				  Executive Office of Environmental Affairs.16
15 Because of the extensive
				  comments the Department received on its proposed performance standards for
				  bordering vegetated wetlands, the issue was subjected to intense scrutiny by
				  the Technical Review Group during the post-public hearing phase of this
				  rulemaking. After extended deliberation, the Technical Review Group unanimously
				  agreed that current research supports the position taken by the Department that
				  the functions served by bordering vegetated wetlands cannot be replicated in
				  their totality be engineering means.
16 See letter of February 2, 1982
				  from Samuel Mygatt, Executive Director of the MEPA Unit to Anthony Cortese,
				  Commissioner of the Department. In concluding his report, Mr. Mygatt makes the
				  following observations:
First, the proposed regulations are extremely clear and easy
				  to apply, and in almost all instances, their effect on a proposed project is
				  readily predictable. This is in marked contrast to the present regulations.
				  Secondly, the treatment of the "Buffer Zone" will be strong inducement to
				  project proponents to carefully design their projects to minimize impacts on
				  nearby wetland areas. Third, the proposed regulations will constrain
				  suprisingly little present development in Massachusetts.
Of course, minimal impact on the ability to develop private
				  property is no defense to the claim that the Department is acting
ultra
				  vires
; if prohibition of certain activities is not necessary to
				  effectuate the purposes of M.G.L. c. 131, § 40 or is not authorized
				  thereunder, then it is irrelevant that the strict performance standards of
				  310
				  CMR 10.55 apply to a comparatively small
				  portion of the total land area subject to regulation under M.G.L. c. 131,
				  § 40. For the reasons detailed above, however, the Department has
				  concluded that destruction of bordering vegetated wetlands must be curtailed if
				  the interests identified in M.G.L. c. 131, § 40 are to be protected; it
				  therefore only remains to be determined whether the language of M.G.L. c. 131,
				  § 40 allows such protective measures.
Under M.G.L. c. 131, § 40, once a resource area is
				  determined to be significant to one or more of the specified interests, the
				  conservation commission (or the Department on appeal) is directed to issue an
				  order imposing "such conditions as will contribute to the protection of the
				  interests described herein, and all work shall be done in accordance
				  therewith." There is certainly nothing in this language to indicate that in the
				  appropriate case the interests may not be protected by prohibition, and as a
				  general proposition of law it has been repeatedly recognized that the power to
				  regulate implies the power to prohibit.17
The Department finds further and explicit support for its
				  position in
Commissioner of Natural Resources v. S. Volpe and
				  Co.
, 349 Mass. 104 (1965), which arose under M.G.L. c. 130, §
				  27A, a predecessor to the present Wetlands Protection Act. Under M.G.L. c. 130,
				  § 27A, any person proposing to undertake work in a coastal wetland was
				  required to file a notice of intent with the Director of Marine Fisheries; if
				  the director determined that the wetland contained shellfish or was necessary
				  to protect marine fisheries, he was authorized to "impose such conditions on
				  said proposed work as he may determine necessary to protect such shellfish or
				  marine fisheries, and work shall be done subject thereto," language that is
				  virtually identical to that of the present Wetlands Protection Act. Pursuant to
				  this authority, the director prohibited the filling of a large marsh in
				  Wareham, an order that the Supreme Judicial Court concluded was lawful and
				  consistent with the language of M.G.L. c. 130, § 27A.
Id
.
				  at 111. Finally, in
Lovequist v. Conservation Commission of the Town of
				  Dennis
, Mass. Adv. Sh. (1979) 2210, a local floodplain by-law
				  empowered the town's conservation commission to deny permission for any project
				  that would harm "the environmental quality of either or both the subject lands
				  and contiguous lands." The by-law was attacked as being inconsistent with the
				  Wetlands Protection Act, a challenge that was dismissed by the Supreme Judicial
				  Court on a number of grounds, including the fact that "pursuant to (the
				  Department's wetlands regulations) conservation commissions for almost five
				  years have had a prerogative to prohibit construction which might injure
				  wetlands areas."
Id
. at 2219.
Nor is there anything in the Wetlands Restriction Act, M.G.L.
				  c. 131, § 40A, that would preclude exercising the power of prohibition
				  under the Wetlands Protection Act. Under the Wetlands Restriction Act the
				  Department of Environmental Management ("DEM") is authorized to adopt orders
				  "regulating, restricting or prohibiting (the) dredging, filling, removing or
				  otherwise altering or pollution (of) inland wetlands." The legislature thus
				  provided DEM with the same broad range of regulatory options that are possible
				  under the Wetlands Protection Act - regulation, restriction or prohibition -
				  and if DEM has chosen to adopt a policy of prohibition this choice should
				  certainly not operate to preclude the Department from acting similarly in the
				  appropriate situation; if anything, DEM's program confirms the Department's
				  judgment and experience with respect to the level of protection necessary to
				  preserve the ecological functions of bordering vegetated wetlands. The
				  Department notes that the DEM restriction program is a coordinated regional
				  approach to entire watershed
17
In John Donnelly and
				  Sons, Inc. v. Outdoor Advertising Board 369
Mass. 206, 214 (1975), for
				  example, the Supreme Judicial Court upheld a local ordinance prohibiting all
				  off-premise advertising, an ordinance that was passed pursuant to an Article of
				  Amendment to the Massachusetts Constitution that authorized the regulation and
				  restriction of such advertising but was silent as to outright prohibition.
				  systems, and views its own program as the local complement thereof. In
				  addition, due to limitations on resources and finances, the DEM program has
				  thus far been able to address the wetlands resources of only a small number of
				  communities; pending completion of the DEM effort, it is all the more important
				  to insure that the most critical of the Commonwealth's wetlands resources not
				  be further destroyed.
D.
Presumptions of Significance
As noted above, Part III of the newly promulgated regulations
				  contains rebuttable presumptions of significance for each of the inland
				  resource areas identified in M.G.L. c. 131, § 40. They are based on the
				  Department's extensive experience in administering its wetlands protection
				  program and on the recommendations of recognized science and engineering
				  experts from both the consulting and academic communities. While it is the
				  Department's judgment that the resource areas are so likely to be significant
				  to the interests indicated in the revised regulations that the presumptions are
				  justified, the prima facie force of each can be overcome by the introduction of
				  sufficient evidence to the contrary.
E.
Definition of "Stream"
During the public comment period the environmental community
				  repeatedly expressed concern that under the proposed regulations intermittent
				  streams throughout the Commonwealth would no longer be subject to jurisdiction.
				  This has never been the Department's intention, and the definition has
				  consequently been clarified to indicate that intermittent streams are included
				  within the definition, except those portions that are upgradient of all
				  wetlands. (See 310 CMR 1 0.04, definition of stream. ) This provides a clear,
				  practical cut-off point for distinguishing between true streams and small
				  drainage channels which flow in direct response to precipitation.
F.
Identification and Regulation of Land Subject
				  to Flooding
The public hearing draft made a distinction between bordering
				  land subject to flooding (
i.e.
, flood plains) and isolated
				  land subject to flooding (
i.e.
, trapped drainage areas), set
				  forth methods for determining the boundaries of each, and, with respect to
				  bordering land subject to flooding, required compensatory storage for all
				  storage volume that would be lost. The Technical Review Group unanimously
				  endorsed this approach, but did make several recommendations for refinement
				  which have been incorporated into the adopted regulations. These include (1) a
				  provision allowing any party to challenge the accuracy of the boundary of the
				  100-year flood as derived from the National Flood Insurance Program profile
				  data, and (2) clarification of the definition of compensatory storage. See
				  310 CMR
				  10.57.
G.
Use of the Standard "in the judgment of the
				  issuing authority
"
Several commentators objected to the above language, which is
				  used throughout the regulation in characterizing the various decisions that
				  must be made by the issuing authority. Their argument is that such language
				  appears to authorize a totally subjective judgment, but similar language in
				  local ordinances has been upheld in court against just such a challenge. The
				  use of this language is not intended to give conservation commissions or the
				  Department any more discretionary authority than they now have under law and
				  these regulations; indeed, each of the decisions they must make has been
				  carefully circumscribed by the precise definitions and explicit performance
				  standards set forth in the regulations. The Department's intention in utilizing
				  this language is to make clear that where discretionary authority is warranted
				  it is to be exercised by the issuing authority and not by project opponents or
				  proponents.
H.
Enforcement Orders
310 CMR 10.08
				  sets forth the procedures with respect to enforcement orders, to which some
				  parties have objected because there is no explicit authorization for the
				  issuance of such orders in M.G.L. c. 131, § 40. Conservation commissions
				  have been issuing cease and desist orders for years, typically when work is
				  commenced in a wetland without first obtaining an Order of Conditions. This
				  emergency authority is clearly necessary, for significant and irreversible
				  damage can be done to such areas if a conservation commission's only recourse
				  under such circumstances is to institute legal
				  proceedings.18
According to M.G.L. c. 131, § 40, "rules and regulations
				  shall be promulgated by the commissioner to effectuate the purposes of this
				  section." Under M.G.L. c. 21A, § 2(28), the Department shall "promulgate
				  rules and regulations necessary to carry out (its) statutory responsibilities."
				  Given the fragile and irreplaceable nature of wetlands, the emergency power to
				  stop a project that is in violation of M.G.L. c. 131, § 40 or these
				  regulations is both necessary an consistent with statutory authority. To the
				  extent that a landowner wishes to challenge the jurisdiction of the
				  conservation commission or the grounds upon which an enforcement order was
				  issued, he may go to Superior Court and seek immediate injunctive
				  relief.
I.
Work Pending Appeals
In order to lessen the nuisance potential of frivolous
				  appeals, which often serve no purpose other than to frustrate meritorious
				  projects, the regulations permit work to proceed, at the applicant's risk, 35
				  days after a negative determination of applicability by the conservation
				  commission, even if an appeal has been taken to the Department. Similarly, work
				  may proceed at the applicant's risk immediately following a negative
				  determination by the Department, even if a request for an adjudicatory hearing
				  has been filed.
				  310 CMR
				  10.05(3)(d). It should be
				  noted that this ability to perform work in the face o f an appeal is limited to
				  situations involving determinations of applicability; under M. G.L. c. 131,
				  § 40, as the Department interprets it, no work can proceed pursuant to an
				  order to conditions once a request for a superseding order has been filed or,
				  in the case of a superseding order, once a request for an adjudicatory hearing
				  has been filed.
VI.
STUDY GROUP
The Department has made a major effort to consider all of the
				  impacts of these revised regulations on both wetlands and development in the
				  Commonwealth. There is no way to know with certainty how any new regulations
				  will work in all situations until there has been significant experience in
				  their implementation. To insure that they work the way they are intended the
				  Department plans to set up a study group composed of representatives from the
				  environmental, development and consulting communities to monitor the effects o
				  f the regulations during the first year of their implementation. The study
				  group will be charged with the responsibility of making recommendations to the
				  Department should they determine after their one year review that further
				  amendments are necessary.
18 Indeed the Department and the
				  Attorney General's Office jointly issued a report entitled "Recommended
				  Procedures for Enforcement of the Wetlands Protection Act, Mass. M.G.L. c. 131,
				  § 40, for Conservation Commissions," dated January 17, 1977, which
				  included a sample cease and desist order similar to this enforcement
				  order.
PREFACE TO WETLANDS REGULATIONS RELATIVE TO FEES 1989
				  REGULATORY REVISION
I.
INTRODUCTION
A.
Authority to Set Fees
.
				  Recognizing that conservation commissions and the Department of Environmental
				  Protection need adequate resources to act expeditiously on filings under the
				  Wetlands Protection Act, M.G.L. c. 131, § 40, ("M.G.L. c. 131, § 40")
				  without compromising the quality of their decisions, the Legislature amended
				  M.G.L. c. 131, § 40 during the Summer of 1988. St. 1988, c. 202,
				  §§ 26 and 30 require the implementation of a sliding scale fee
				  schedule for filing Notices of Intent, in order to defray state and local costs
				  of administering the Wetlands Protection Act. The Act was further amended by
				  St. 1989, c. 287, § 54 which requires that fifty percent of any Notice of
				  Intent filing fee in excess of $25 shall be made payable to the Commonwealth of
				  Massachusetts and the remainder shall be made payable to the city or town in
				  which the work is proposed.
In addition, the enabling legislation of the Executive Office
				  of Administration and Finance, M.G.L. c. 7, § 3b as amended by St. 1988,
				  c. 236, § 10, requires agencies which provide services of benefit to
				  individuals to charge a fee commensurate with the cost of providing that
				  service.
The wetlands fee system is codified at
				  310 CMR
				  10.00 WETLANDS PROTECTION (DEP) and
				  801 CMR
				  4.00 RATES (ADMINISTRATION & FINANCE). Department
				  wetland regulations contain procedures and instructions regarding the fees
				  established by Administration and Finance. Persons filing documents under the
				  Wetlands Protection Act are advised to consult both regulations.
B.
Purpose of Fee System
. The
				  purpose of the fee system is to defray local and state costs of administering
				  the Wetlands Protection Act. The fee structure is intended to ensure that
				  conservation commissions and the Department will have the resources to provide
				  detailed project review and to issue regulatory decisions within required time
				  frames.
C.
Disposition of Notice of Intent
				  Fees
. For each Notice of Intent, the applicant must submit half of
				  the fee in excess of $25 to the DEP Lock Box and the balance to the city or
				  town in which the work is proposed.
II.
SUMMARY OF REGULATIONS
A.
Notice of Intent Fees
. An
				  applicant must submit the correct fee amount in order to meet the minimum
				  submittal requirements for a Notice of Intent. Fifty percent of the fee in
				  excess of $25 is paid to the DEP Lock Box. The remainder must be paid to the
				  city or town where the work is proposed. If the conservation commission or the
				  Department determines that an incorrect amount has been paid and has issued
				  notification to the applicant, the filing is deemed incomplete and the time
				  period for action is stayed. Once the correct fee amount has been paid and the
				  filing is deemed complete, the time period for action will resume.
The list of project categories and associated fees can be
				  found at
				  801 CMR
				  4.02(310).
				  310 CMR 10.03(7)(c)
				   describes all the activities in each fee
				  category. The filing fee is based on the project design as it is described in
				  the initial Notice of Intent filing and applies only to activities proposed in
				  areas subject to juristiction under M.G.L. c. 131, § 40. If the project is
				  scaled down during the review process, the applicant does not receive a refund
				  on any portion of the fee originally filed since the conservation commission
				  and the Department have already spent the time reviewing the original
				  proposal.
B.
Disputes Regarding Amount of Notice of Intent
				  Fee
. Should the conser-vation commission determine at any time
				  during its deliberations that the incorrect fee amount has been paid by the
				  applicant, the commission should notify the applicant and the Department.
				  Further action on the filing is stayed until the correct fee has been paid. The
				  applicant then may choose to pay the balance assessed by the commission without
				  disputing it, pay the disputed amount (half to the Department and half to the
				  city or town), or file a Request for Determination of Applicability. If the fee
				  originally filed by the applicant is affirmed in a Final Order, the applicant
				  is entitled to request a refund of the disputed amount, one half each from the
				  Department and from the city or town.
If the applicant files a Request for Determination pursuant
				  to a Notice of Insufficient Filing Fee, the Determination issued by the
				  conservation commission, or by the Department on appeal, is determinative
				  regarding the filing fee. During the processing of the Determination, action on
				  the Notice of Intent is stayed.
C.
Fees for Actions by the
				  Department
. Actions by the Department for which fees are assessed
				  are specified in
				  801 CMR 4.02(310)
				   and include Requests for Superseding
				  Determinations of Applicability, Requests for Superseding Orders of Conditions,
				  Claims for Adjudicatory Hearings, Requests to Intervene in an Adjudicatory
				  Hearing, and Requests for Variances.
These fees shall be paid directly to the DEP Lock Box with a
				  photocopy of the Request for Departmental Action Fee Transmittal Form
				  accompanying the appeal. The Department will not proceed with review until
				  receiving evidence that such fee has been paid.
D.
Exemptions
.
				  801 CMR 4.02(310)
				   provides for certain exemptions to wetland
				  filing fees.
PREFACE TO THE WETLANDS REGULATIONS RELATIVE TO TECHNICAL
				  CHANGES 1992 WETLANDS PROTECTION ACT REGULATORY REVISIONS (
				  310 CMR
				  10.00 )
NOTE: The following is a preface to, but does not form a part
				  of, the Wetlands Protection Act Regulations (
				  310 CMR
				  10.00 ).
Definition of Pond
. The proposed
				  redefinition of the term "pond" in
				  310 CMR
				  10.00 is being undertaken in order to clarify the
				  intention of the Department to include those water bodies which were created by
				  means other than by impoundment. A recent judicial decision,
Warcewicz
				  v. DEP
, 410 Mass. 548, 574 N.E. 2d 364 (1991), rendered a strict
				  interpretation of the current definition of pond which limited the jurisdiction
				  of the Wetlands Protection Act with respect to man-made ponds to only those
				  ponds created by damming or impoundment. The proposed regulatory amendment is
				  intended to extend the protection afforded by the Wetlands Protection Act (the
				  "Act") to those non-impounded man-made surface water bodies which serve to
				  protect the interests of the Act and function as wetland resources. In the case
				  of gravel pits and quarries, the jurisdiction of the proposed regulations is
				  intended only to apply to those ponds in which mining operations have ceased
				  for five or more consecutive years.
Rare Species
. The regulatory
				  revisions are primarily administrative in nature, with slight subtantive
				  changes intended to clarify the regulations. The revised regulations (
				  310 CMR
				  10.37,
				  10.59
				  and 10.99 ) eliminate the prior process whereby applicants with projects on the
				  "Estimated Habitat Maps" of rare, state-listed animal species were required to
				  file an "Appendix A" with the state Natural Heritage and Endangered Species
				  Program prior to filing a Notice of Intent (NOI) with the conservation
				  commission. Instead, a copy of the fully completed NOI itself will need to be
				  filed with the Heritage Program (sent in such a manner that delivery will be
				  made within two days of the filing of the NOI with the conservation commission
				  and DEP). This change is designed to save time and paperwork for the applicant,
				  while providing the Heritage Program with more detailed information on the
				  project to assist it in its role of advising commissions on protection of rare
				  species.
Changes in
				  310 CMR
				  10.00, and particularly in the 310 CMR 10.99 "General
				  Instructions" for the Notice of Intent, seek to clarify that any project
				  subject to the filing of a Notice of Intent (even such a project in the buffer
				  zone) is required to notify the Heritage Program if it is on the Estimated
				  Habitat Map. The performance standard, which seeks to protect rare species
				  habitat only in wetland resource areas (not buffer zones), would not change.
				  However, the language of the instructions clarifies that it is the conservation
				  commission and DEP (not the applicant) which determines whether a buffer zone
				  project (or any other project) would adversely affect the resource area
				  habitat.
Form Changes
. As noted directly
				  above, some revisions have been made in the Notice of Intent, Abbreviated
				  Notice of Intent, and the General Instructions forms (along with the deletion
				  of the Appendix A form) which were necessitated by changes in the rare species
				  procedures (discussed directly above). In addition, forms found in 310 CMR
				  10.99 may look slightly different from the previous versions, particularly due
				  to deletion of logos from the tops of some forms, as well as changes in type
				  faces, and pagination. This was necessitated by our transfering the forms to a
				  computer format. However, there have been no substantive changes to the forms
				  except for those referred to in the first sentence of this paragraph.
RESPONSE TO PUBLIC COMMENTS RELATIVE TO 1992 TECHNICAL
				  CHANGES TO THE WETLANDS PROTECTION ACT REGULATIONS (
				  310 CMR
				  10.00 )
NOTE: The following Response to Public Comments does not form
				  a part of the Wetlands Protection Act Regulations (
				  310 CMR
				  10.00 ).
Introduction
. In February, 1992, the
				  Department of Environmental Protection proposed a number of revisions to the
				  Wetlands Protection Act Regulations (
				  310 CMR
				  10.00 ). Because certain of these revisions could
				  arguably result in a weakening of specific, existing regulatory standards, the
				  Department filed an Environmental Notification Form (ENF) as required under the
				  Massachusetts Environmental Protection Act (MEPA). Since those revisions were
				  proposed, and the EN F on them filed, the Department has recieved a great deal
				  of public comment. Based on that comment, the Deparatment intends to promulgate
				  final regulations which are considerably different from those originally
				  proposed. For this reason, the Department has withdrawn the ENF previously
				  filed under MEPA, and plans to refile the ENF with regard to its revised
				  proposals on agriculture and aquaculture, Areas of Critical Environmental
				  Concern, dam safety/lake drawdowns and airport tree clearing. However the new
				  ENF will not cover those proposed regulatory changes which we view as being
				  primarily technical in nature. These technical changes, discussed below, are
				  being promulgated at this time.
Definition of Pond
. Public response
				  to the proposed regulatory amendment to redefine pond included comments from 20
				  communities, three public agencies, five special interest groups, three
				  consultants, seven individuals, and one private company. The majority of
				  comments supported the proposed changes. However a substantial number of
				  comments suggested that the proposed language be further amended.
The proposed amendments contained in the public comments
				  primarily related to the issues of:
1. clarifying the definition of man-made basins which are
				  exempt;
2. defining what is meant by "natural conditions";
3. redefining "drought"; and
4. clarifying what is meant by "inactive" gravel pits. As a
				  result of these comments, the proposed definition of pond has been further
				  amended in the following respects.
In order to clarify the exemption for "impervious retention
				  basins" originally proposed in subsection (b) of the proposed definition, the
				  exclusive reference to retention basins was eliminated and the proposed
				  language was amended to reference all "impervious man-made basins" be they
				  retention basins or otherwise. This more comprehensive phrase is intended to
				  include those man-made structures which were created for a specific purpose and
				  which were not created to provide all the functions which are provided by
				  natural wetland systems.
Many comments were received referring to the difficulty of
				  determining what is meant by "natural conditions" in the sentence: "Ponds shall
				  contain standing water under natural conditions, except during periods of
				  extended drought". Rather than attempt to further define what is meant by
				  "natural conditions", the proposed language was amended to delete the reference
				  to this phrase. As a result, ponds shall be required to contain water under any
				  conditions except during periods of extended drought. Additional comments were
				  received which suggested changes to the definition of "extended drought".
				  Further research on this point revealed that there is no more acceptable
				  definition of drought than that which exists in the current regulations. As a
				  result, the definition of drought contained in this portion of the regulations
				  was not amended.
In order to clarify the reference of the exclusion of gravel
				  pits contained in subsection (c), this section was further amended to
				  specifically reference "individual gravel pits...". Due to the extensive nature
				  of some graveling operations, this clarification is specifically intended to
				  include those individual gravel pits which, although located on the same
				  property as a larger graveling operation, have been abandoned and inactive for
				  five or more consecutive years.
Fees
. Public comment ran the gamut
				  on this issue, from oppostion to lowering of specific fees to proposals to
				  exempt certain projects and parties from fees entirely. Regarding our proposal
				  to lower the fee for new agriculture/aquaculture projects, we believe this is
				  justified for two reasons:
a) the majority of such projects are quite small and require
				  a relatively short time for review, and b) the Commonwealth has an interest in
				  reducing unnecessary burdens on an already hard pressed agricultural industry
				  in order to keep farming viable in the state.
Rare Species Procedures
. Public
				  comments were overwhelmingly supportive of the proposed deletion of the
				  "Appendix A" and the substitution o f submitting a completed Notice of Intent
				  (NOI) to the Natural Heritage & Endangered Species Program when a project
				  is proposed within estimated rare species habitat. A few changes in the
				  regulation as originally proposed were made in response to public
				  comment:
It was clarified that the NOI to be sent to the Heritage
				  Program must include all plans, reports and other materials required to be
				  filed with the conservation commission.
Because of the statutory requirement that hearings on NOIs be
				  held within 21 days and decisions made within 21 days after the hearing, it is
				  impossible to create a perfect procedure for ensuring that the Heritage Program
				  has adequate time to make its determination on rare species without delaying
				  the permitting process. In the final regulations, we allow applicants to send
				  the NOI to the Heritage Program "via the U.S. Postal Service by express or
				  priority mail (or otherwise sent in a manner that guarantees delivery within
				  two days)", so long as evidence of such mailing is included with the NOI
				  submitted to the commission and DEP. This was done to ensure that project
				  proposals are not delayed by the rare species regulatory requirement, while at
				  the same time providing the Heritage Program with adequate time to review rare
				  species impacts. It is important to note that if a project proponent refuses to
				  extend a public hearing in a case where the Heritage Program has not yet issued
				  its determination on rare species at the time of the hearing, the conservation
				  commission is still free to consider the Program's determination if it is
				  received within 21 days after the close of the hearing. Thus a wise applicant
				  will generally agree to a hearing extension, so that he or she can have a
				  chance to respond after the Heritage Program's determination has been received
				  by the commission.
The word "delineated" was deleted in reference to Estimated
				  Habitat Maps because the boundaries of such maps are estimated, and not clearly
				  delineated.
Finally, it was noted in the NOI Instructions that rare
				  species performance standards apply except in Designated Port Areas and where a
				  Variance has been issued.
Prefaces for Former Revisions to Wetland
				  Regulations
. Public comment generally supported the concept of our
				  retaining in the regulations the information contained in the Prefaces to past
				  regulatory revisions. It was felt that this information provided invaluable
				  guidance to conservation commissions and applicants alike regarding regulatory
				  intent and interpretation. Therefore, the Preface to the most recent regulatory
				  revisions will always appear at the beginning of the regulations, while the
				  older Prefaces will hereinafter be printed as Appendices to the
				  Regulations.
PREFACE TO 1993 REGULATIONS REGARDING NORMAL MAINTENANCE AND
				  IMPROVEMENT OF LAND IN AGRICULTURAL USE
NOTE: The following is a preface to, but does not form a part
				  of, the Wetlands Protection Act Regulations (
				  310 CMR
				  10.00 ).
Massachusetts is struggling to preserve both its dwindling
				  agricultural base and its remaining wetlands. Both are threatened. While many
				  agricultural practices are compatible with wetlands protection, some can result
				  in temporary or permanent losses of key wetlands functions, such as flood
				  control and pollution attenuation. The Wetlands Protection Act is intended to
				  ensure that these functions are protected through regulatory review and
				  permitting.
At the same time, because wetlands are such an integral part
				  of many farming operations, requirements for environmental review could
				  significantly reduce their economic viability. The Legislature has recognized
				  the value of preserving agriculture in Massachusetts by including in the
				  Wetlands Protection Act exemptions for normal maintenance and improvement of
				  land in agricultural use, including cropland and pastureland. These exemptions
				  recognize that some farming practices will affect wetlands from time to
				  time.
In an effort to keep these competing interests in balance,
				  the Legislative exemptions are limited to ongoing agricultural operations. That
				  is, if tilling or harvesting is being conducted at the present time in or near
				  wetlands, that work and any current work related to production of that
				  agricultural commodity need not go through regulatory review. At the same time,
				  the Legislature recognized that expanded or new agricultural activities,
				  because they can result in new temporary or permanent impacts to wetlands,
				  should be subject to review to ensure that they are conducted in the most
				  environmentally sound manner possible.
The distinction between ongoing work on or related to land in
				  agricultural production, and agricultural expansion, has not been sufficiently
				  clear to farmers or to conservation commissions. The Department of
				  Environmental Protection (DEP) has attempted to clarify the exemptions through
				  policy. In 1991, the Legislature determined that stronger measures to reduce
				  this confusion were necessary and it enacted legislation directing DEP to
				  develop new, clearer regulations.
In response to that mandate, DEP has adopted the following
				  regulations. They make it clear that normal maintenance and improvement of land
				  in agricultural use is exempt from the Wetlands Protection Act and is not
				  subject to regulations adopted pursuant to the Act -provided that the
				  activities fall within the newly-adopted definitions. No Determination of
				  Applicability is required for exempt activities; however, the Determination of
				  Applicability process is intended for use when there is doubt as to whether or
				  not an activity is exempt. Nothing in
				  310 CMR
				  10.00 changes the need to independently evaluate
				  whether permits are required under federal laws such as Sections 401 and 404 of
				  the Clean Water Act.
310 CMR
				  10.00 represents the collective input of dozens of
				  farmers, environmentalists, many state and federal agencies, advocacy groups,
				  and other concerned citizens. Most notable in this process were the efforts of
				  the Farmland Advisory Committee, established by the legislation as an ongoing
				  advisory body, and the Joint Committee on Agriculture and the Environment.
				  These groups worked diligently with DEP and the Department of Food &
				  Agriculture (DFA) to develop regulations that are sensitive to the need s of
				  farmers while preserving valuable wetlands.
DEP believes that, while the appropriate regulatory balance
				  has been achieved, the regulations cannot be specific enough to address all
				  circumstances. Everyone involved in developing
				  310 CMR
				  10.00 believes that their successful implementation
				  will depend largely on continuing efforts to provide education and outreach to
				  conservation commissions and the agricultural community, as well as a good
				  measure of common sense applied by all concerned.
310 CMR
				  10.00 refers to a cooperative process in which certain
				  projects can proceed only if the proponent has prepared a farm Conservation
				  Plan approved by the United States Department of Agriculture, Soil Conservation
				  Service (SCS). This process requires cooperation between the Department and
				  SCS, and that cooperation is formalized by a written Memorandum of
				  Understanding between the two agencies. Copies of the Memorandum of
				  Understanding can be obtained from the Department.
In order to ensure that
				  310 CMR
				  10.00 achieves its goals, the Secretary of
				  Environmental Affairs added conditions in her ENF Certificate (EOEA #9266)
				  requiring DEP and the Department of Food and Agriculture (DFA) to convene an
				  independent monitoring committee. DEP and DFA will chair a group of
				  representatives of the agricultural and environmental communities to oversee
				  the implementation of
				  310 CMR
				  10.00, to monitor the effects on both wetlands and
				  agriculture in the Commonwealth, and to provide recommendations for possible
				  further revisions at the end of a three year period.
This committee will evaluate cumulative impacts of exempt
				  activities. The Committee should develop a system for gathering information by
				  which it can assess the cumulative impacts of activities such as those listed
				  at
				  310 CMR 10.04
				  (
Agriculture
)(c)(1) (b, c, d, e, and g). Such a system
				  could include, for example, notice from farmers that certain activities have
				  been conducted.
PREFACE TO WETLANDS REGULATORY REVISIONS
				  EFFECTIVE JANUARY 1, 1994 REGARDING LANDFILL CLOSURES, AIRPORT SAFETY, DAM
				  SAFETY, WATER
SUPPLY DEVELOPMENT, CLEANUP OF OIL &
				  HAZARDOUS MATERIALS,
AND EMERGENCY CERTIFICATION
				  PROCEDURES
310 CMR
				  10.00
NOTE: The following is a preface to, but does not
				  form a part of, the Wetlands Protection Act Regulations (
				  310 CMR
				  10.00 )
.
The Department of Environmental Protection has promulgated
				  regulations creating five new "limited projects". All five have in common the
				  fact that the types of projects covered are, by nature, important to the
				  protection of public health, safety and/or the environment. The five new
				  provisions apply to projects designed to promote, respectively, closure of
				  solid waste landfills, airport safety, dam safety, development of safe drinking
				  water supplies from groundwater, and cleanup of releases of oil and hazardous
				  materials.
The purpose of the new regulations is to ensure that such
				  projects, insofar as is practicable: avoid adverse impacts on wetland resource
				  areas, and where avoidance is not practicable, minimize and mitigate such
				  impacts.
Prior to the effective date of these new limited projects
				  (January 1, 1994), such projects, if not able to meet normal Wetlands
				  Protection Act regulatory standards, were required to obtain a variance from
				  the Commissioner of the Department -- a more expensive and time consuming
				  procedure than the normal Notice of Intent procedure. Establishment of limited
				  project status means returning to the local conservation commissions the
				  authority to review and condition these types of projects.
EMERGENCY CERTIFICATIONS
(
				  310 CMR 10.06(5)
				   )
The Department has made revisions to Emergency Certification
				  procedures, some of which affect only projects to contain and clean up spills
				  of oil and/or hazardous materials (OHM). These are discussed in the OHM section
				  of this preface, below. The Department also has changed an important Emergency
				  Certification provision which applies to all emergency projects, not just OHM
				  sites (
				  310 CMR 10.06(5)
				   ). This change specifically gives the
				  Department the authority to review denials and failures to act by conservation
				  commissions on requests for emergency certification. This regulatory revision
				  simply reflects the existing statutory right that exists under the Wetlands
				  Protection Act:
"If the conservation commission ... fail(s) to act favorably
				  within 24 hours of receipt of a request for certification of an emergency
				  project, said project may be so certified by the commissioner (of DEP) or his
				  designee."
LANDFILL CLOSURE LIMITED PROJECT
(
				  310 CMR 10.24(7)(c)(4)
				   and
				  10.53(3)(p)
				   )
This new limited project is designed to facilitate the
				  closure of landfills adjacent to wetlands while ensuring that wetland impacts
				  are avoided or minimized. The limited project regulation contains a detailed
				  list of conditions for eligibility. Landfill closures eligible for limited
				  project status are restricted to those mandated by the Department of
				  Environmental Protection in accordance with the requirements of
				  310 CMR
				  19.00. Limited project provisions do not apply to the
				  construction of new landfills or to the expansion or modification of existing
				  landfills. In addition, a DEP policy has been adopted to establish an internal
				  review procedure for evaluating landfill closure alternatives to ensure that
				  wetland resource area impacts are, to the extent practicable, avoided and, to
				  the extent such impacts cannot be avoided, minimized and mitigated. Copies of
				  the policy can be obtained from the Departament's Division of Wetlands &
				  Waterways, One Winter Street, Boston, MA 02108.
AIRPORT SAFETY/VEGETATION REMOVAL LIMITED
				  PROJECT
(
				  310 CMR 10.24(7)(c)(5)
				   and
				  10.53(3)(n)
				   )
This new limited project covers tree clearing around airports
				  and is intended to allow selective vegetation management in wetland resource
				  areas for maintenance of safe airport landing zones. Activities under this
				  limited project provision are limited to those required to be undertaken in
				  order to comply with certain regulations of the Federal Aviation Administration
				  (FAA). The provision does not apply to the construction of new airport
				  facilities or to the expansion of existing airport uses that alter wetlands. A
				  five year vegetation management plan must be included in the Notice of
				  Intent.
In order to ensure that minimal wetland impacts will result
				  from this type of project, a Generic Environmental Impact Report (GEIR) was
				  prepared by the Massachusetts Aeronautics Commission and Massport (Final
				  Generic Environmental Impact Report for Vegetation Removal in Wetlands at
				  Public Use Airports, EOEA No. 8978, August 31, 1993). The GEIR presents
				  substantial information regarding this class of projects and should be used to
				  supplement the limited project regulation in order to identify the types of
				  information to be provided in a Notice of Intent and the types of conditions
				  that should be incorporated into the Orders of Conditions for applicable
				  projects. Conservation Commissions and applicants are especially encouraged to
				  refer to the GEIR's "WETLAND IMPACT EVALUATION CHECKLIST for vegetation removal
				  at airports" found in Chapter 6 of the GEIR. Copies of the GEIR can be obtained
				  from the Massachusetts Aeronautics Commission, 10 Park Plaza, Room 6620,
				  Boston, MA 02116-3966.
The Massachusetts Secretary of Environmental Affairs has
				  certified that the GEIR "adequately and properly complies with the
				  Massachusetts Environmental Policy Act" and regulations. In that certification,
				  however, the Secretary required that "the DEP, along with Massport and the MAC
				  (Mass. Aeronautics Commission), prepare and file a new Generic Environmental
				  Notification Form (ENF) in two years.... The objective of that ENF will be to
				  evaluate the effectiveness of this new provision, and to provide all those
				  involved with the opportunity to evaluate it based on actual field
				  experience."
The Secretary went on to say in her certification that the
				  GEIR did not deal adequately with the idea of mitigation banking and that this
				  issue should be dealt with in much greater depth in the next GEIR. The
				  Commonwealth has since initiated a feasibility study of wetlands banking. For
				  this reason, the limited project just promulgated does not now include
				  mitigation banking in its list of possible mitigation measures to be considered
				  by project applicants.
PUBLIC GROUNDWATER SUPPLY LIMITED
				  PROJECT
(
				  310 CMR 10.53(3)(o)
				   )
This new limited project is designed to permit the
				  development of safe public drinking water supplies from groundwater, while
				  ensuring that wetland impacts are avoided or minimized. Except for exploration
				  projects, eligibility for limited project status is restricted to projects
				  approved by the Department of Environmental Protection in accordance with the
				  provisions of the Public Water Supply Source Approval Process pursuant to
				  310 CMR
				  22.21 and/or the Water Management Act, M.G.L.
				  c. 21G. A DEP policy has been adopted to establish an internal review procedure
				  for evaluating water supply development alternatives to ensure that wetland
				  resource impacts are, to the extent practicable, avoided and, to the extent
				  such impacts cannot be avoided, minimized and mitigated. Copies of the policy
				  can be obtained from the Department's Division of Wetlands & Waterways, One
				  Winter Street, Boston, MA 02108.
DAM SAFETY/LAKE DRAWDOWN LIMITED
				  PROJECT
(
				  310 CMR 10.53(3)(i)
				   & (m))
The purpose of this limited project is to provide a
				  reasonable balance between dam safety and wetland protection interests, and to
				  ensure that safety-related "drawdowns" of water levels in dammed impoundments
				  do not drain wetlands for any longer a period than necessary. This has been
				  accomplished in two ways.
First, the existing limited project for maintenance, repair
				  and improvement of "structures" (
				  310 CMR 10.53(3)(i)
				   ) has been amended to specifically include
				  dams and reservoirs. Both drawdowns and refilling of dams pursuant to dam
				  repair are now covered. Second, a new limited project (
				  310 CMR 10.53(3)(m)
				   ) has been created for drawdowns that occur
				  in response to orders or other recommendations from the Department of
				  Environmental Management's Office of Dam Safety (DEM).
In extreme emergency situations, DEM orders immediate
				  drawdown of water levels to protect public safety. Such drawdowns are
				  statutorily authorized to occur without prior filing of a Notice of Intent
				  (M.G.L. c. 253, §§ 44 through 50). More commonly, however, DEM tries
				  to identify unsafe dams well in advance of the point where they pose an
				  imminent threat. When DEM identifies such an unsafe dam, it usually sends a
				  request to the dam owner to "certify as to the safety" of the dam. These DEM
				  "recommendation letters" usually include recommended response actions, but they
				  do not order any specific response action, such as dam repair. In response, dam
				  owners generally seek to draw down water levels to lessen stress on the dam.
				  However, drawdowns made in response to DEM "recommendation letters" may not be
				  undertaken without first filing a Notice of Intent and receiving an Order of
				  Conditions.
Such drawdowns clearly "alter" wetlands and frequently alter
				  more than 5,000 square feet of bordering vegetated wetland. Particularly if the
				  drawdowns are allowed to continue for extended periods, they can result in
				  significant adverse impacts. Yet drawdowns are often critical for dam safety
				  purposes. For this reason, the new wetlands limited project has been
				  established to allow drawdowns made in response to DEM "Orders" and
				  "Recommendation Letters" to occur in two circumstances:
1. Where the drawdown is to occur for a limited time in order
				  to render the dam safe until repairs can be made. In this circumstance, DEM has
				  agreed in a Memorandum of Understanding (MOU) with DEP to issue a finding, on a
				  case by case basis, establishing a reasonable period of time in which the
				  drawdown and repair are to be completed. Such a finding by the DEM Office of
				  Dam Safety should be included by the applicant with a Notice of Intent for this
				  type of project.
2. Where DEM has found that the drawdown is necessary for
				  public safety, and that it is not economically feasible at the time of such
				  finding to repair the dam. Again, DEM has agreed in its MOU with DEP to issue
				  such findings in writing, and to send copies to the conservation commission and
				  DEP. DEM will generally find repair to be infeasible when the cost of the
				  repair exceeds the value of the property containing the dam, except where the
				  dam owner derives other financial benefits from the dam. DEM also has agreed in
				  its MOU with DEP to issue a "superseding" finding of economic feasibility upon
				  request of any person, organization, or agency if warranted by changed
				  circumstances (
e.g.
, change in dam ownership, commitment by
				  another person or group to finance the repair in whole or in part,
etc
.). When a DEM finding of economic infeasibility has been
				  issued, conservation commissions may grant an Order of Conditions for up to
				  three years for the drawdown, and may extend or reissue an Order as many times
				  as necessary so long as repair continues to be economically infeasible.
This limited project provision should ensure that all
				  drawdowns related to dam safety are permissible under
				  310 CMR
				  10.00, while limiting their duration to the time it
				  takes to repair the dam, unless such repair is economically infeasible. By
				  establishing this limited project, the Department hopes to create a clear
				  mechanism whereby both dam owners and third parties are encouraged to take all
				  reasonable actions to alleviate adverse impacts from dam safety-related water
				  level drawdowns.
LIMITED PROJECT AND EMERGENCY CERTIFICATION
				  PROCEDURES FOR RESPONSE ACTIONS TO RELEASES OF OIL AND/OR HAZARDOUS
				  MATERIALS
(
				  310 CMR 10.06(3)
				   & (7), 10.24(7)(c)(6), and
				  10.53(3)(q))
On July 31, 1993, the Department issued a new set of
				  regulations governing cleanups of oil and/or hazardous materials (OHM) ( 310
				  CMR 40.0000 ). The Department now has revised its Wetlands Protection Act
				  Regulations (
				  310 CMR
				  10.00 ) to provide greater consistency and ease of
				  administration in applying 310 CMR 40.0000 and
				  310 CMR
				  10.00 while ensuring that the interests of the
				  Wetlands Protection Act are protected to the greatest extent practicable. (A
				  short summary of 310 CMR 40.0000 is available from the Department's Divison of
				  Wetlands and Waterways, One Winter Street, Boston, MA 02108.)
The Department has adopted a new wetlands "limited project"
				  for OHM release response actions that are necessary to protect health, safety,
				  public welfare, and/or the environment, but that cannot meet current wetland
				  regulatory standards without obtaining a variance. Standards for the limited
				  project are similar to, though considerably more detailed than, the Wetlands
				  variance standards.
The Department also has amended the Wetlands emergency
				  procedures as they relate to remediation of OHM spills in order to ensure that
				  these procedures don't result in unnecessary delays and exacerbation of
				  critical toxic pollution problems.
New Wetlands Regulation Limited Project for Oil
				  and/or Hazardous Materials Release Response Actions
Because cleanup s of oil and/or hazardous material (OHM)
				  releases are critical for the protection of health, safety, public welfare, and
				  the environment, the Department believes that they should be allowed to go
				  forward so long as, to the maximum extent practicable: adverse impacts to
				  wetlands are avoided and, to the extent this is not possible, such adverse
				  impacts a r e minimized and mitigated .
310 CMR 40.0000 gives responsible parties (RPs) a number of
				  alternatives for dealing with oil and hazardous material releases. Immediate
				  Response Actions (IRAs) are generally required to be implemented on an
				  emergency basis, and thus would normally be reviewed under the emergency
				  certification provisions of the Wetland Regulations (see discussion of
				  emergency certifications in this Preface, below).
Any other measure implemented pursuant to 310 CMR 40.0000
				  that can meet normal Wetland regulatory performance standards will continue to
				  be governed by those standards and will not be eligible for limited project
				  status. Furthermore, any measure undertaken pursuant to 310 CMR 40.0000 that is
				  not needed to eliminate significant risk to health, safety, public welfare or
				  the environment (
i.e.
, measures designed solely to reach
				  "background" levels of pollution) will not be eligible for limited project
				  status (see the language in parentheses in the first paragraph of
				  310 CMR 10.24(7)(c)(6)
				   and
				  10.53(3)(q)
				   ).
Limited project status may be needed, however, for response
				  actions such as Release Abatement Measures (RAMs), even though they are
				  designed for relatively minor levels of contamination. RAMs can have large
				  wetland impacts:
e.g.
, diverting contaminated ground or
				  surface water in a manner that drains wetlands, building an access road through
				  a wetland in order to reach a work site,
etc
. It should be
				  noted that RAMs -- and all other remediation and containment measures except
				  IRAs and Comprehensive Response Actions (described in the next paragraph) --
				  are not mandated, although they are allowed, by 310 CMR 40.0000.
Only Comprehensive Response Actions (CRAs) -- and not RAMs or
				  other remedial actions -- are required under 310 CMR 40.0000 to be selected on
				  the basis of an alternatives analysis that gives significant consideration to
				  wetland impacts. Therefore, selection of the particular CRA technology or
				  methodology (
e.g.
, pump and treat, dredge and fill,
etc
.) may be made without performing the additional
				  alternatives analysis normally required under provisions of
				  310 CMR
				  10.24(7)(c)6.a. and
				  10.53(3)(q)1. However, the design, construction, implementation, and operation
				  of all OHM-related limited projects, including CRAs, RAMs,
etc
., must meet specific performance standards, including
				  maximum practicable avoidance, minimization and mitigation of adverse wetland
				  impacts (see
				  310 CMR
				  10.24(7)(c)6.b. and
				  10.53(3)(q)2.).
Finally, it is important to note that since only the most
				  seriously contaminated sites will have BWSC oversight, the language of the
				  limited project gives conservation commissions and the DEP Wetlands Program the
				  authority to deny limited project status for any proposed project that clearly
				  does not comply with 310 CMR 40.0000. Needless to say, such a conclusion will
				  generally be very difficult to reach for persons who don't have considerable
				  expertise in oil or hazardous materials issues, and the Department does not
				  anticipate that claims of compliance with the standards of 310 CMR 40.0000 will
				  be rejected by conservation commissions or the Wetlands Program in many cases.
				  The Wetlands Program does intend, however, to work with DEP's Bureau of Waste
				  Site Cleanup to examine projects applying for limited project status if it has
				  reason to believe the project was not selected or designed in compliance with
				  310 CMR 40.0000.
Revisions in Wetland Emergency Procedures Regarding
				  Releases of OHM
310 CMR 40.0000 allows certain Immediate Response Actions
				  (IRAs) to commence prior to written approval, and in some cases up to 24 hours
				  before oral approval from BWSC, "where the delay involved in notifying and
				  obtaining approval from the Department would substantially exacerbate release
				  or site conditions or endanger health, safety, public welfare or the
				  environment." Consequently, the revised regulations state (see revisions to
				  310 CMR 10.06(7)
				   ) that projects in these two categories
				  shall be given up to 48 hours (but never more than 24 hours after BWSC has
				  orally approved commencement of the work) to make a request for a Wetlands
				  Emergency Certification with the conservation commission. Work on these types
				  of projects is allowed to continue pending a decision on the request for
				  Emergency Certification by the conservation commission or the DEP Wetlands
				  Program on appeal. In cases where a conservation commission denies, or fails to
				  act within 24 hours of a requests for Emergency Certification for these types
				  of projects, the DEP Wetlands Program will review requests for emergency
				  certification and issue a decision within seven days. It should be noted,
				  however, that all of these types of emergency projects will have received at
				  least oral approval from the Department's Bureau of Waste Site Cleanup within
				  24 hours of commencement.
Immediate Response Actions which are not so urgent as to be
				  eligible for oral approval from BWSC are not be covered by the special
				  provisions stated in the preceding paragraph. However, all emergency
				  certifications granted for Immediate Response Actions are valid for up to 60
				  days, rather than the 30 day maximum for non-hazardous waste emergency projects
				  (see revisions to
				  310 CMR 10.06(3)
				   ). The Department is doing this to make the
				  Wetland Protection Act Regulations more consistent with 310 CMR 40.0000, and to
				  encourage quick OHM clean-ups without excessive process.
To determine whether, and under what conditions, the
				  Department's Bureau of Waste Site Cleanup (BWSC) has given written or oral
				  approval to an Immediate Response Action, conservation commissions can call
				  DEP's BWSC release notification unit the appropriate DEP regional office. If
				  that office is closed, a person from that unit can be paged by calling the
				  Massachusetts State Police at 617-566-4500. The current phone numbers for the
				  Department's regional offices are: Northeast: 617-935-2160; Southeast:
				  508-946-2700; Central: 508-792-7650; and Western:
				  413-784-1100.