Revised Wetlands Regulations

February 2005Advisories

The Massachusetts Department of Environmental Protection has revised its wetlands regulations intended to streamline the process for certain work which is unlikely to have an adverse environmental effect and to limit appeal rights by opponents who may be seeking to delay a project. Both of these changes are welcome changes for developers. These changes will also allow DEP and local Conservation Commissions to direct their resources to more pressing areas, such as enforcement. The regulations are effective March 1, 2005. However, the changes regarding the streamlined process seem to have been adopted only on an experimental basis, since they are set to expire on March 1, 2008.

Procedures Simplified for Buffer Zone Work Beyond 50 Feet from Resource Area

Since 1999, DEP has had a Policy in effect under which, based on DEP’s experience with activities in the buffer zone of wetlands resource areas,created a rebuttable “presumption” that projects occurring exclusively within the buffer zone which retained a 50-foot wide area of undisturbed vegetation along the wetlands resource area and met certain other criteria would be allowed to proceed under a Negative Determination of Applicability. This meant that the projects were required to file a Request for Determination of Applicability with a local Conservation Commission, but that the Conservation Commission would issue a determination that the proposed activity was unlikely to alter a wetlands resource. The “buffer zone” for most wetlands resource areas is the area extending 100 feet from the wetlands resources.

The new Regulations essentially codify the Policy as a formal regulation, establish standards for work in the buffer zone and simplify the procedure. The new procedure for work in the area 50-100 feet from the wetlands resources will now proceed according to the following steps:

  • The proponent will submit an Abbreviated Notice of Resource Area Delineation,rather than a Request for Negative Determination of Applicability. In order to qualify for this new procedure, the applicant must show that the work meets the following criteria: (1) the work must be more than 50 feet away from wetlands resource areas; (2) the work must incorporate stormwater management; (3) the entire buffer zone must not border sensitive areas called Outstanding Resource Waters and must not contain estimated wildlife habitat for endangered species; and (4) the work must provide erosion control during construction.
  • Abutters are notified of the proposed Notice of Resource Area Delineation.
  • The Conservation Commission issues an Order of Resource Area Delineation which is recorded. The Order is subject to appeal as is also currently the case for all orders issued by a conservation commission. The Order will be valid for three years, and may be extended for up to an additional three years. Work which does not qualify for the new procedure will continue to be subject to the older process of the filing of a Determination of Applicability to clarify jurisdiction. In addition, the new regulations clarify that the potential for adverse effect on wetlands will vary with the extent of the work, the proximity to the resource area, and the characteristics of the buffer zone such as the presence of steep slopes.