Berkshire Conservation Agent Program

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Berkshire Conservation Agent Program
presents

• 2005 changes to the
• Wetland Regulations
• 310 CMR 10.00

Through a grant from the Berkshire Environmental
Fund
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NOTE This presentation contains extensive
additional material in the speaker notes. To
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Why were the changes made?

• Research showed loss of wetlands from unpermitted
  alterations
• DEP wanted to decrease time spent on permits for
  work in buffer zone and increase time on
  enforcement and outreach
• To increase protection with an incentive based
  setback of 50 for work in the buffer zone
  projects may then qualify for simplified review
  the new review process with less opportunities
  for appeals can only appeal the delineation

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What are the changes?

• Simplified review process
• Standards for Work in the Buffer under an NOI
• Minor Activities
• Fees and time frames
• Stormwater Management
• Professionals for resource area delineations and
  certifications
• Bordering Vegetated Wetlands
• Extensions
• Enforcement
• Appeals for Superceding Permits, Adjudicatory
  Hearings and Variances
• Abutter Notification and Owner Permission

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What are the eligibility requirements for
Simplified Review?See 310 CMR 10.02(2)(b)2.

• 2. Activities within the buffer zone of any
  inland resource area as specified in 310 CMR
  10.51 through 10.60 and outside any areas
  specified in 310 CMR 10.02(1) are not subject to
  further regulation under M.G.L. c. 131, 40,
  provided
• a. The applicant certifies at the time of filing
  an Abbreviated Notice of Resource Area
  Delineation that any work will comply with 310
  CMR 10.02(1)(b)2.a. through j. and, if not, the
  applicant will file a Notice of Intent or Request
  for Determination of Applicability and receive a
  negative Determination of Applicability or an
  Order of Conditions prior to any work
• b. The boundary of any resource area
  specified in 310 CMR 10.02(1) adjacent to the
  project site is confirmed through an Order of
  Resource Area Delineation. The Order shall also
  confirm that the requirements of 310 CMR
  10.02(2)(b)2.c., d., and e., are met

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310 CMR 10.02(2)(b)2. continued

• c. The buffer zone does not contain slopes
  greater than 15 prior to any work

This diagram is on the ANRAD Instructions, at the
proper scale
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310 CMR 10.02(2)(b)2. continued

• d. The buffer zone does not contain estimated
  wildlife habitat which is identified on the most
  recent Estimated Habitat Map of State-listed Rare
  Wetlands Wildlife of the Natural Heritage and
  Endangered Species Program
• e. The buffer zone where the work is proposed
  does not border an Outstanding Resource Water
  (i.e., certified vernal pools, public water
  supplies or inland ACECs, as identified in 314
  CMR 4.00)
• f.   At a minimum, no work, including any
  alteration for stormwater management, is proposed
  in the 50-foot wide area in the buffer zone along
  any resource area

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310 CMR 10.02(2)(b)2. continued

• g.   The amount of impervious surface shall not
  exceed 40 of the area of the buffer zone between
  50 and 100 feet from any resource area or the
  amount of existing impervious surface, whichever
  is greater, no impervious surface or any other
  alteration is allowed within the 50 foot area of
  the buffer zone along the resource area

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310 CMR 10.02(2)(b)2. continued

• h.   Erosion and sedimentation controls are
  installed and maintained at the limit of work or
  at least 50 feet from the resource area,
  whichever is farther away, sufficient to prevent
  sediment from reaching resource areas during
  construction. The applicant shall provide
  written notification to the conservation
  commission one week prior to commencement of work
  to allow verification that erosion and sediment
  controls are properly installed.
• i.   Stormwater is managed according to standards
  established by the Department, if applicable, and
  the conservation commission concurs. The
  Stormwater Management Plans shall also show that
  the requirements of 310 CMR 10.02(2)(b)2.f., g.
  and h., have been met and the conservation
  commission concurs. The applicant shall identify
  the type of project on the Abbreviated Notice of
  Resource Area Delineation to allow the
  conservation commission to verify the
  applicability of the stormwater management
  standards. If the conservation commission does
  not concur, it shall specify the standards or
  requirements that are not met and the applicant
  shall file a Notice of Intent. Any stormwater
  management structures shall be operated and
  maintained, as a continuing condition, to ensure
  that the system functions as designed

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310 CMR 10.02(2)(b)2. continued

• j.   No Notice of Intent or Request for
  Determination of Applicability may be filed for
  work within the 50-foot wide area in the buffer
  zone along the resource area during the
  three-year term of an Order of Resource Area
  Delineation, or any extended Order, or until the
  applicant receives a Certificate of Compliance,
  whichever is later. Subsequent work within the
  50-foot wide area shall be subject to the
  provisions of 310 CMR 10.53(1).

The rest of the presentation covers the other
changes in the regulations, not just simplified
review.
Standards for Work in a Buffer Zone Under an RDA
or NOI See 310 CMR 10.53(1)
For work in the buffer zone subject to review
under 310 CMR 10.02(2)(b)3., the issuing
authority shall impose conditions to protect the
interests of the Act identified for the adjacent
resource area. The potential for adverse impacts
to resource areas from work in the buffer zone
may increase with the extent of the work and the
proximity to the resource area. The issuing
authority may consider the characteristics of the
buffer zone, such as the presence of steep
slopes, that may increase the potential for
adverse impacts on resource areas. Conditions
may include limitations on the scope and location
of work in the buffer zone as necessary to avoid
alteration of resource areas. The issuing
authority may require erosion and sedimentation
controls during construction, a clear limit of
work, and the preservation of natural vegetation
adjacent to the resource area and/or other
measures commensurate with the scope and location
of the work within the buffer zone to protect the
interests of the Act. Where a buffer zone has
already been developed, the issuing authority may
consider the extent of existing development in
its review of subsequent proposed work and, where
prior development is extensive, may consider
measures such as the restoration of natural
vegetation adjacent to a resource area to protect
the interest of the Act. The purpose of
preconstruction review of work in the buffer zone
is to ensure that adjacent resource areas are not
adversely affected during or after completion of
the work.
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Minor ActivitiesSee 310 CMR
10.02(2)(b)1.a. - g.
1.   Minor activities within the buffer zone and
outside any areas specified in 310 CMR
10.02(1)(a) through (e) are not subject to
regulation under M.G.L. c. 131,
40 a.   Unpaved pedestrian walkways for private
use b.   Fencing, provided it will not
constitute a barrier to wildlife movement
stonewalls stacks of cordwood c.   Vista
pruning, provided the activity is located more
than 50 feet from the mean annual high water line
within a riverfront area or from bordering
vegetated wetland, whichever is farther.
(Pruning of landscaped areas is not subject to
jurisdiction under 310 CMR 10.00.) d.   Plantings
of native species of trees, shrubs, or
groundcover, but excluding turf lawns e.   The
conversion of lawn to uses accessory to
residential structures such as decks, sheds,
patios, and pools, provided the activity is
located more than 50 feet from the mean annual
high-water line within the riverfront area or
from bordering vegetated wetland, whichever is
farther, and erosion and sedimentation controls
are implemented during construction. The
conversion of such uses accessory to existing
single family houses to lawn is also allowed.
(Mowing of lawns is not subject to jurisdiction
under 310 CMR 10.00) f.   The conversion of
impervious to vegetated surfaces, provided
erosion and sedimentation controls are
implemented during construction
and g.   Activities that are temporary in nature,
have negligible impacts, and are necessary for
planning and design purposes (e.g., installation
of monitoring wells, exploratory borings,
sediment sampling and surveying).
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FEES AND TIME FRAMES

• Category 2j added or 6 (e.g. the determination
  of whether a stream is perennial or intermittent
• Category 6 Changed from a fee only for each foot
  of bvw delineation to each foot of any resource
  area delineation under ANRAD. Fee calculated by
  adding fees for each resource area. Limit is 200
  for sfh and 2000 for all others.
• Changed where fees are listed from 801 CMR
  4.02(310) to 310 CMR 4.00
• Fees basically doubled effective October 8, 2004
• Under fees 310 CMR 4.00 set time limits

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Stormwater

• Codified at 10.05(6)(b)

Professionals for Resource Area Delineations and
Simplified Review Certifications

• 10.05(4)(h) added that cc can require delineation
  or Simplified Review certification be done by
  professional with relevant experience
• 10.05(6)(d) cc can only extend resource area
  delineation ORAD after written confirmation from
  professional with relevant experience that the
  delineation has not changed

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BVW

• Added sequencing (Avoid, minimize, mitigate)
  Standard to BVW 5,000 sf provision at
  10.55(4)(b)7.

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Extensions

• 10.05(8) changed to add that cc can deny
  extension and require a new ANRAD
• 10.05(8)(5) added that cc can deny extension of
  OOC or ORAD when resource area delineation has
  changed
• 10.05(6)(d) added that extension of ORAD requires
  written confirmation from professional that
  delineations have not changed
• 10.05(8)(5) added that cc can deny extension of
  ORAD when certification under SR is no longer
  valid

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Enforcement

• Removed words but not limited to
• Included failure to comply with DOA or complete
  work described in a DOA as a violation
• Added violations for making false, inaccurate, or
  misleading statements in any certification,
  including certification under 10.02(2)(b)2.
• Added violation for failure to comply with any
  certification on project plans or eligibility
  under 10.02(2)(b)2.
• Added violation for leaving unauthorized fill or
  failing to restore illegally altered land to its
  original condition, or the continuation of any
  other activity in violation of MGL Ch 131 section
  40
• Gives access rights to site for Con Com, agents
  and DEP, subject to constitutional limitations.

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Appeals 310 CMR 10.05(7)

• Aggrieved person can request superceding DOA
  was only for Orders
• Added ORAD to permits that can be appealed used
  to only say OOC.
• Limits DEP review to delineation only for ANRADS
  (but says also to any other requirements subject
  to confirmation under 10.02(2)(b)2.
• DEP may confirm line by site visit
• Changed site visits on appeals to may (not shall)
  be done
• Must have prior participation to request
  adjudicatory hearing
• no adjudicatory hearing required before getting
  variance, will notice environmental monitor and
  hold public hearing on any variance

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Abutter Notification and Owner Permission

• Under 10.05(4)(a) Notices of Intent (this
  includes ANRADS and ANOIS) added requirement to
  get owner permission before filing (except on
  Great Ponds)
• Also added requirements for abutter notification