The Massachusetts Wetlands Protection Act, MGL Ch. 131, Section 40, and its Regulations, 310 CMR 10.00 establish the jurisdictional boundaries and performance standards for real property development activities that are adjacent to, or within wetlands resources identified in the Act. Mere presence or existence of wetlands resources within or adjacent to a proposed development area does not automatically preclude the development activity. There are several wetlands resources that are identified in the Act. However, the more common and frequent ones that are found in inland (non-coastal) areas are bordering vegetated wetlands (BVW); isolated land subject to flooding (ILSF); bordering land subject to flooding (BLSF); inland bank of an intermittent stream; and riverfront areas associated with perennial streams. In this post, I’d like to focus our attention only on the BVW. The BVW resource as defined in the Act is that area where 50 percent or more of the existing plant community is identified in the Act as being wetlands plants (facultative wet or obligate wet), supported by hydrology and soils–and the term “bordering” signifies the wetlands as lying adjacent to a stream (intermittent or perennial). The Act empowers local Conservation Commissions and the Massachusetts Department of Environmental Protection (DEP) to regulate any development activities that are within an actual BVW resource and all activities that are located in the upland area that lie within 100 feet of the BVW boundary. Very often, the 100 foot line that defines the outer edge of that area within 100 feet of the BVW boundary is described as the “100 foot buffer line”. The term “buffer” is often understood and literally interpreted as a protective area that should not be disturbed by any development or site activities! This interpretation has often caused a lot of problems for both new members on a Commission and the general public; for often I hear people at some public hearings questioning a Commission as to why they are even considering permitting a project inside the “100 foot BVW buffer zone”. The proper regulatory description or terminology that should be ascribed to the 100 foot BVW buffer zone is the “100 foot jurisdictional boundary” because that is the proper phraseology! The Act simply empowers local Conservation Commissions and the DEP to regulate work or development activities within the jurisdictional boundary, it does not mandate a 100 foot separation distance between BVW resource and site development activities, nor does it preclude activities from occurring within the area. However, some local Conservation Commissions have been able, through the Home Rule, to adopt local wetlands bylaws that establish an actual minimum buffer zone between site activities and BVW boundaries, over and above the requirements set forth in MGL Ch. 131, Section 40, and 310 CMR 10.00. It is therefore incumbent upon project developers and their consultants to check whether a local wetlands bylaw or ordinance is applicable in their community of interest before incurring large expenditures that could potentially prove futile! The more we understand the regulations and their terminologies, the better equipped we are to work with them.
By
Azu Etoniru, P.E., P.L.S.