Friday, January 11, 2008
How to avoid ConsCom trouble when working near wetlands
Conservation Commission (Cons Com) Enforcement Orders are unsettling for both the board that issues them and the party that receives them. Fortunately, the resulting unpleasantness is clearly preventable. Hence the New Year seems a good time to suggest that the homeowner who is contemplating a springtime project that involves outdoor construction, increased recreational spaces or a landscape spruce-up, do a little homework.
What areas are protected?
First, do you know whether there are any "areas subject to protection" as specified under the Massachusetts Wetland Protection Act (WPA) in the vicinity of the proposed improvements? That is, are there any lakes, ponds, rivers, streams, floodplains, swamps or other Wetland Resource Areas in or abutting your property? Most common in Carlisle are swampy areas, mostly adjacent to open bodies of water or streams, and officially termed Bordering Vegetated Wetlands (BVWs).
These protected areas may or may not be visibly wet, yet have sufficient groundwater to support characteristic vegetation and soils. Typical greenery may include red maple, high bush blueberry, alders, azaleas, willows, spice bush, sphagnum moss, skunk cabbage, etc. In other words, the true nature of a BVW may not be obvious to anyone but a trained wetland scientist.
Under the provisions of the WPA, these wetland resources fall under the jurisdiction of the local Conservation Commission, overseen by the Massachusetts Department of Environmental Protection (DEP). Any activities such as digging, filling, grading, clearing or landscaping within a 100-foot buffer zone surrounding a lake, pond or BVW, or a 200-foot Riverfront Area extending along a river or perennial stream, require a permit from the local commission. Floodplains and isolated areas subject to flooding do not possess buffer zones but must not in themselves be altered.
Let us say that there is a small pool or seasonal wet area on your property. Is it substantial enough to be characterized as Isolated Land Subject to Flooding (ILSF) or is it perhaps a Vernal Pool (a strictly defined seasonal breeding ground for amphibians and other invertebrates) or perhaps even as a pond with a buffer zone? Often only a trained observer can determine its status. The same is true of the identification of a small stream as either "perennial," and thus having a Riverfront Area, or "intermittent" and offering no problem.
CRs, easements may limit work
Ignorance of the presence of a wetland resource area is not the only hazard facing the do-it-yourselfer. Carlisle is fortunate enough to have a substantial network of conservation lands, trail easements and areas governed by either public or private Conservation Restrictions (CRs). Should private structures, landscaping activities or a child's play area inadvertently intrude onto such legally protected real estate, that too can lead to costly and time-consuming action against the violator. Again, a simple trip to the ConsCom office can usually confirm boundaries, identify CRs, or even uncover unsuspected deed restrictions.
Low tolerance for violations
Above all, the prudent homeowner will turn a deaf ear to the know-it-all who advises that he or she not "invite trouble" by contacting the commission but "Just do what you want: they will never know the difference." Should the violation not be spotted immediately, it can still come back to haunt the perpetrator even years later. Sympathetic as the commissioners may be at that time toward a seemingly innocent violator, they are legally charged to enforce the law, preserve the town's natural resources and require remediation of damage done.
Assuming that the prospective applicant has checked with the commission, found that the proposed work would occur within a wetland resource area or its buffer zone, but still wants to proceed with the project, what happens then? There are two possible approaches available, and both require a public hearing, abutter notification and a plan of attack.
Does WPA apply?
The first is the Request for Determination of Applicability (RDA). The RDA is used to confirm that the proposed work falls within the commission's jurisdiction and to determine whether it will have sufficient impact to require more detailed information and oversight. If ConsCom members give a Negative Determination, the applicant may proceed without further paperwork and with a minimum of ConsCom guidance.
When to file a Notice of Intent
If the verdict is a Positive Determination, the applicant must file a Notice of Intent (NOI), requiring a second public hearing, abutter notification and a more detailed plan. For this reason, applicants proposing a large or more complicated project usually choose to bypass the RDA and go directly to the NOI, thus saving some cost and time.
The NOI calls for accurate delineation of wetland boundaries (as determined by a certified wetland scientist) and detailed engineering specifications. Once the commissioners are satisfied that they have sufficient information to make a decision, the public hearing is closed. Within three weeks they will announce an approval, or rarely a denial. The latter can be challenged by the applicant and occasionally reversed by the state DEP.
A vote to approve is accompanied by an Order of Conditions (OOC) that will govern how the project is to be carried out. The OOC can also be referred to the DEP in hopes of receiving a Superseding Order of Conditions (SOC), but this is rarely done. Assuming that all has gone smoothly, the successful applicant has three years in which to finish the project and request a Certificate of Compliance (COC) from the commission.
The plan as approved, including the procedures specified in the OOC, must be followed to the letter by the applicant unless he subsequently files an Amended NOI. Unapproved deviations can be considered a violation and will trigger a demand for compliance or a formal Enforcement Order, again punishable by a fine, and a request to restore the damage to the resource area and its buffer zone. An Enforcement Order is not subject to reversal by the DEP and can be challenged only by a court action, in which an unsuccessful plaintiff must pay the court costs.
Compliance with the provisions of the WPA and other related statutes such as the Massachusetts Endangered Species Act and the Carlisle Scenic Roads Bylaw saves the homeowner time, money and unwelcome notoriety: they also save hours of town employee time (and that means taxpayer money), to say nothing of the cost of legal wrangling and civic confrontation. The ConsCom office is there to help.
© 2008 The