UMASS/AMHERST 315Dbb01bfl353?4 ;A^5. s/Uo.^f as • ' 7 2^ > Farming in Wetland Resource Areas: A Guide to Agriculture and the Massachusetts Wetlands Protection Act ■"*c lii1-**; '■ » ■'■■■ « "^^y-re33 -«m. -.v.. /J/irfy Ahhtrom January 1994 Commonwealth of Massachusetts Department of Environmental Protection Department of Food and Agriculture Farming in Wetland Resource Areas: A Guide to Agriculture and the Massachusetts Wetlands Protection Act Andy Ahlstrom January 1994 Commonwealth of Massachusetts Department of Environmental Protection Department of Food and Agriculture Farming in Wetland Resource Areas: A Guide to Agriculture and the Massachusetts Wetlands Protection Act January 1994 Produced by: Massachusetts Department of Environmental Protection Massachusetts Department of Food and Agriculture In collaboration with: Cape Cod Cranberry Growers Association Committee on Agriculture and the Environment Cooperative Extension Service, University of Massachusetts Farmland Advisory Committee Massachusetts Association of Conservation Commissions Massachusetts Audubon Society Massachusetts Farm Bureau Federation New England Small Farm Institute United States Department of Agriculture, Soil Conservation Service Project Coordinator: Kathryn Z. Ruhf New England Small Farm Institute Belchertown, Massachusetts Cover drawing by Andy Ahlstrom is reproduced with the permission of the Izaak Walton League of America. Page Design and Layout: Karen Walsh Peterson, Department of Environmental Protection Commonwealth of Massachusetts William F. Weld, Governor Executive Office of Environmental Affairs Trudy Coxe, Secretary Department of Environmental Protection Daniel S. Greenbaum, Commissioner Thomas Powers, Deputy Commissioner Arleen O'Donnell, Assistant Commissioner Department of Food and Agriculture Jonathan L. Healy, Commissioner Overview Wetland and water resources are found on many Massachusetts farms. These resource areas include streams, ponds, bogs, marshes, swamps, floodplains, isolated land subject to flooding, wet meadows, salt ponds, salt marshes, land under the ocean, and fish runs, among others. Agricultural activities are subject to the jurisdiction of the Massachusetts Wetland Protection Act when they occur within the resource areas (and their 1 00 foot buffer zones) defined in the Act. Many normal farming activities, including activities related to forestry, are exempt from regulation under the Wetlands Protection Act. Others require a certain level of review by local Conservation Commissions. The provisions of the Wetlands Protection Regulations that cover exempt and regulated agricultural activities are the subject of this Guide. This Guide is intended to: • Clarify the areas of a farm that are subject to the jurisdiction of the Wetlands Protection Act. • Explain which activities, when located in areas that are subject to the jurisdiction of the Wetlands Protection Act, are exempt from review. Explain the procedures and conditions for meeting the requirements for an exemption. Describe the permitting process for non-exempt activities that do require regulatory review. • Provide information about wetland resources and values. Provide information about agricultural practices and values. • Provide resource and referral information. This Guide focuses on the regulations that concern agriculture and wetland resource areas in Massachusetts. It does not cover every detail and it is not to be construed as policy. Finally, it offers suggestions for how those concerned with farming and with wetlands can help to preserve both. ii Farming in Wetland Resource Areas (1/94) Preface and Acknowledgements This Guide is intended to give a better understanding of the Agricultural Exemption to the Massachusetts Wetlands Protection Act (WPA) to the farming community, wetlands regulators, and the general public. It includes information about farming practices and wetland resources and is designed to help those affected by Massachusetts General Laws Chapter 131, Section 40, to approach and interpret those portions of the Wetlands Protection Regulations that deal with agriculture and aquaculture. The binder format allows for the addition of new and revised sections as they become available. For example, relevant DEP program policies, SCS standards, and related regulatory or informational materials may be included later. Please note: revised forestry and aquaculture provisions of the Wetlands Protection Regulations have not been promulgated and are not included in this January, 1994 publication; they will be published at a later date. Please insert those sections into the binder as you receive them. This document should be used as a guide and as a source of information. It does not answer all questions and therefore it should be accompanied by a close reading of the Wetlands Protection Act and Regulations themselves. Please remember that this document is only a Guide and should not be construed as DEP policy. Successful implementation of the Agriculture Exemption to the Wetlands Protection Act will require communication and information sharing among those concerned with protecting both agriculture and wetland resources. To keep this Guide easy to follow, fine detail has been avoided. Readers who need greater detail and want to learn more about the Wetlands Protection Act and about agriculture may turn to the many resources listed in this Guide. (Please see Appendix A: Resources and References.) This Guide reflects the hard work and thoughtful contributions of many people. The support and input of the collaborating agencies and organizations and other reviewers, editors, and support staff are gratefully acknowledged. Funding for this project was provided by the Massachusetts Department of Environmental Protection and the Massachusetts State Office of the U.S.D.A. Soil Conservation Service. Farming in Wetland Resource Areas (1/94) iii Table of Contents Chapter One: Introduction 1-1 Background 1-1 The Importance of Wetlands 1-3 Wetlands Values and Functions 1-3 Flood Control and Prevention of Storm Damage 1-4 Protection of Water Supplies and Prevention of Pollution 1-4 Protection of Fisheries and Wildlife Habitat 1-4 Protection of Recreational and Aesthetic Resources and Enhancement of Property Values 1-5 Resource Areas and Public Interests: Charts and Illustrations 1-6 Inland Wetland Resource Areas 1-6 Coastal Wetland Resource Areas 1-7 Public Interests Served by Wetlands 1-8 Wetlands Protection and Conservation Commissions 1-9 Overview of the Wetlands Protection Act 1-9 The Agriculture Provisions of the Wetlands Protection Act 1-9 The Local Conservation Commission 1-10 Understanding Agriculture in Massachusetts 1-12 What You Can Do 1-14 Conservation Commissioners 1-14 Farmers 1-14 Chapter Two: Working with the Regulations 2-1 Approaching the Exemption 2-1 Agriculture 2-1 Components of the Exemption „ 2-1 Work 2-1 Normal 2-1 Maintenance 2-2 Improvement 2-2 Land In Agricultural Use (LIAU) 2-3 Conditions 2-6 General conditions 2-6 Specific conditions 2-6 Selected Exempt Activities 2-7 Field Edges 2-7 Squaring Off a "Field Boundary" 2-8 Substantial Fill 2-8 The 4,000 S.F. Limit for Construction of Farm Structures 2-9 The Agriculture Exemption and Conservation Plans 2-10 Overview 2-10 Farmers, Conservation Commissions, and Conservation Plans 2-10 Exempt Water-Management Projects 2-11 Non-Exempt Water-Management Projects 2-12 Chart of Activities That May Require a Conservation Plan 2-14 Determining Jurisdiction 2-15 Requests for Determination 2-15 Delineating Bordering Vegetated Wetlands on Farms 2-17 iv Farming in Wetland Resource Areas (1/94) Table of Contents I Table for Determining Jurisdiction 2-18 The Emergency Provision [310 CMR 10.06(6)] s . 2-19 Enforcement 2-21 Section 401 Water Quality Certification Program 2-23 Chapter Three: The Soil Conservation Service and Conservation Planning 3-1 The Soil Conservation Service, Conservation Districts, and Conservation Plans 3-1 The United States Soil Conservation Service and Conservation Districts 3-1 The SCS-Assisted Conservation Plan 3-1 The Field Office Technical Guide: A Guide to Good Conservation 3-4 The Federal Farm Bills and Massachusetts Farmers 3-5 Where to Find Assistance 3-6 Chapter Four: Practices and Terms 4-1 Introduction 4-1 General Farming Practices and Terms 4-2 Cranberry Practices and Terms (with diagrams of cranberry bog system) 4-10 Appendices A-l A. Resources and References A-l Soil Conservation Service Field Offices and District Conservationists A-L Department of Environmental Protection: Boston and Regional Offices (Commonwealth of Massachusetts) A-2 Department of Environmental Management, Division of Forests and Parks (Commonwealth of Massachusetts) A-3 | Massachusetts Association of Conservation Commissions (MACC) and MACC West A-4 Cape Cod Cranberry Growers Association A-4 Massachusetts Aquaculture Association A-4 Massachusetts Forestry Association A-4 Massachusetts Audubon Society A-4 University of Massachusetts, Cooperative Extension System A-4 Department of Food and Agriculture (Commonwealth of Massachusetts) A-5 New England Small Farm Institute A-6 Massachusetts Society of Municipal Conservation Professionals A-6 Massachusetts Farm Bureau Federation A-6 Army Corps of Engineers (United States) A-6 Conservation Districts in Massachusetts A-6 Resource Conservation and Development Areas A-8 Massachusetts Association of Professional Foresters A-8 Division of Fisheries and Wildlife (Commonwealth of Massachusetts) A-8 Natural Heritage and Endangered Species Program (Massachusetts Division of Fisheries, Wildlife, and Environmental Law Enforcement) A-9 Agricultural Composting Association A-9 B. The Wetlands Protection Act and Agriculture Regulations A-l 1 Wetlands Protection Act (Massachusetts General Laws Chapter 131, Section 40) A-ll Definition of Agriculture [310 CMR 10.04( Agriculture)] A- 16 \ Agricultural Emergency [310 CMR 10.06(6)] A-21 The Agricultural Limited Projects [310 CMR 10.53(3)(a, b, and c)] A-23 Farming in Wetland Resource Areas (1/94) Table of Contents l The Conservation Plan Limited Project [310 CMR 10.53(5)] A-25 C. Memorandum of Understanding .,.,.... A-26 D. Chapter 141 of the Acts of 1991 (Establishing the Farmland Advisory Committee) A-30 E. SCS Technical Guide Standards: A Sample A-31 F. SCS Farm Conservation Plan: A Sample A-35 G. Monitoring Committee Information Collection Form A-43 H. Case Studies A-45 » VI Farming in Wetland Resource Areas (1/94) Chapter One: Introduction Background Chapter One: Introduction Background Wetlands Protection Act Farmland Advisory Committee In Massachusetts, both farmland and wetland resources are recognized as interests vital to the Commonwealth. Both are threatened. In 1972, the Massachusetts Legislature enacted the first (and still one of the strongest) wetlands protection laws in the nation. In passing the Wetlands Protection Act, Massachusetts General Laws, Chapter 131, Section 40 ("WPA"), the Legislature recognized that farming and forestry are important public values and should not be regulated to the same extent as other activities. Accordingly, the Wetlands Protection Act exempts "work performed for the normal maintenance or improvement of land in agricultural and aquacultural use" from review. This statutory language clearly and explicitly limits the exemption to normal activities that occur on land currently IN agricultural use and does not include activities that would bring new land into agricultural use. Nevertheless, the interpretation of this exemption and the Wetlands Protection Regulations [310 CMR 1 0.04( Agriculture)] that define it have been unclear to both farmers and regulators. In 1991, the Legislature enacted legislation that had been filed by farming organizations directing the Department of Environmental Protection (DEP) to establish a Farmland Advisory Committee (FAC) to advise DEP on clarifying the exemption. The FAC is composed of two farmers, one representative each from the University of Massachusetts Cooperative Extension (CES) and the USDA Soil Conservation Service (SCS), and a Conservation Commissioner knowledgeable about farming. The FAC met with DEP, the Massachusetts Department of Food and Agriculture (DFA), the Committee on Agriculture and the Environment (an advisory group to DEP that is composed of representatives of agricultural and environmental interests), and other environmental, farming, and forestry groups. After 19 months, the FAC proposed that DEP - with the advice and consent of the Commissioner of DFA - adopt amendments to the Wetlands Protection Regulations that would clarify the exemption. Public hearings were held and new Wetlands Protection Regulations pertaining specifically to agriculture (not including aquaculture and forestry) were promulgated in May, 1993. Sections pertaining to aquaculture and to forestry will be amended at a later date. Participants in the process acknowledged, however, that these regulatory changes, standing alone, would not be adequate to educate people about the specific terms of the Agriculture Regulations. It was agreed that both regulators and the regulated community could benefit from increased awareness and communication about farming and wetlands - that old stereotypes, attitudes, and conflicts must be reshaped by up-to-date information about farming practices, policies that promote resource stewardship and sustainability, and dialogue between farmers and regulators. Clarifying the Agriculture Exemption has been a difficult task. The new Agriculture Regulations are not meant to expand or contract the intent of the statute or the previous regulations, but rather to allow clear, consistent, and uniform administration of this portion of the law. They are designed to reduce ambiguity by providing abundant examples, more detailed definitions and, in some cases, observable, measurable standards. In addition, they have been restructured Farming in Wetland Resource Areas (1/94) 1-1 Chapter One: Background Introduction to some degree. For example, new agricultural emergency and "limited project" provisions have been added. Sunset Provision The new Agriculture Regulations have a three year "sunset" provision so that they will expire unless they are reauthorized at the end of three years (May 20, 1996). Before the new Agriculture Regulations may be reauthorized, they must be reviewed by a Monitoring Committee, which will recommend any changes to DEP and the Secretary of Environmental Affairs. Participation in the work of the Monitoring Committee is strongly encouraged. Farmers, Conservation Commissioners, and technical assistance personnel may contact Monitoring Committee members to provide substantive and anecdotal information about the exemption, any permit, or related matters. (Appendix G contains a form to help shape your data collection. It might be useful to file such records in the back of this Guide.) ' (, <>: 1-2 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction The Importance of Wetlands The Importance of Wetlands Wetlands Values and Functions Wetlands in Massachusetts range from broad floodplains along the Connecticut and other rivers to beaches, salt marshes, and dune systems along the coast; to bogs in Southeastern Massachusetts; to freshwater marshes and wet meadows throughout the state; to the most common type of wetland in Massachusetts, the seasonally-flooded wooded swamp. Wetlands are areas where water is at, near, or above the surface of the ground often enough for hydric soils to form and/or for wetland plants to grow. In the Wetlands Protection Act, the term "wetland" includes not only the vegetated wetlands we typically think of - such as marshes, swamps, and bogs - but banks, dunes, beaches, and land under bodies of water (lakes, ponds, rivers, and streams). Land subject to flooding, sometimes called the "floodplain," is an area that experiences surface flooding during storms, periods of excessive rain, or spring snow melt. Floodplain areas can be "bordering" in that they are found along rivers and streams or occur adjacent to lakes and ponds. On the other hand, they can be "isolated" from a body of water and occur in an isolated depression or a closed basin. In addition, floodplain areas along the coast are subject to tidal flooding. The areas described above are referred to as "resource areas" in the Wetlands Protection Act. Definitions of these resource areas for regulatory purposes are found in the Act and its accompanying regulations. In the not very distant past, wetlands were considered to be nothing more than mosquito-breeding wastelands with no practical value unless they were filled. Consequently, over half of the wetlands in the United States - and nearly 30% in Massachusetts - already have been destroyed or severely degraded, largely due to human activities such as road construction, agriculture, non-point pollution sources (including highway and pesticide run-off), land development, dredging, and antiquated mosquito control methods. Historically, the conversion to agriculture has been a major cause of loss of wetlands in Massachusetts. Because of their flat terrain, rich organic soils, and proximity to water, many wetland areas have been desirable for farming. Much of the conversion occurred before the importance of wetlands was recognized or regulated. Because so much of the state's wetlands has been lost, the remaining wetland resource areas have enhanced public value. In the last few decades, scientists have discovered that wetlands have tremendous ecological and economic value (and that mosquitoes can be controlled without destruction of wetlands). In fact, wetlands left in their natural state have been shown to be far more cost-efficient than any human invention in: Flood control and prevention of storm damage. Prevention of pollution. Protection of public and private ground and surface water supplies. Protection of fisheries and wildlife habitat. Protection of recreational, aesthetic, and property values. Farming in Wetland Resource Areas (1/94) 1-3 Chapter One: Introduction The Importance of Wetlands Flood Control and Prevention of Storm Damage Wetlands and other floodplain areas provide temporary storage for flood water that has risen above the bank of a river or stream or the basin of a lake, pond, or isolated depression. They allow flood waters to recede slowly, releasing water by evaporation, by percolation into the soil, and through flow downstream. When wetlands and other floodplain areas hold water, they decrease downstream flood crests and the rate at which the water flows. Protection of Water Supplies and Prevention of Pollution Protection of Fisheries and Wildlife Habitat Thus, these low floodplain areas act as buffers and prevent storm damage to nearby lands, roads, and buildings. These functions minimize the need for extensive engineering systems such as riprap and seawalls. In addition, vegetated banks bind soil, preventing erosion caused by runoff or the flow of surface water. Filling a floodplain reduces its storage capacity, restricts the flow of water, and causes flood waters to rise higher and move faster. This can result in greater erosion and downstream flooding. Unfortunately, there are too many examples of houses flooded and even lives lost through the cumulative effects of filling floodplains over the years. Floodplain maps issued by the Federal Emergency Management Agency (FEMA) under the National Flood Insurance Program show the floodplains associated with major streams. Unfortunately, the maps are not complete and many floodplain areas are not indicated. If property lies near a stream or in a low-lying area, there is a chance that part of the property is flood-prone. In some cases, the flood elevation on the property must be calculated by a professional engineer. Directly or indirectly, wetlands often are sources of public or private water supply. Some wetlands serve to recharge groundwater aquifers. In addition, surface water runoff collects in streams; the streams, in turn, flow to reservoirs. Isolated depressions also collect surface runoff and hold water when groundwater is high. These depressions often act as important areas for recharging groundwater. Nutrients carried by flood waters and deposited on the floodplain create a rich soil. Wetlands can purify the water they receive, serving as natural settling ponds where soils and vegetation can trap sediments. These sediments bind and, in some cases, chemically break down pollutants into non-toxic compounds. For example, the sediments beneath marsh vegetation absorb chlorinated hydrocarbons and heavy metals such as lead, copper, and iron. Wetlands also retain nitrogen and phosphorus compounds which, in large amounts, can lead to nuisance plant growth in both fresh and coastal waters. Some nutrients and toxic substances are held for long periods in plant roots and soil. Others are held by plants during the growing season and then released as the plants decay in the fall and winter - a time when they are less likely to degrade water quality. Vegetation also stabilizes banks, thereby protecting water quality by decreasing erosion and siltation. Wetland vegetation provides nesting sites and protective cover to many types of wildlife. Floodplains along rivers and streams are wildlife corridors, providing food, access to water, routes for migration, overwintering areas, shelter, and breeding areas. Vernal pools - important breeding sites for amphibians - often occur in wetlands and floodplains. Wetlands and floodplains also provide habitats for a high percentage of rare species. Plants growing along a bank or at the water's edge may make tubers and berries 1-4 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction The Importance of Wetlands Protection of Recreational and Aesthetic Resources and Enhancement of Property Values and also may provide shelter for wildlife that moves between wetland areas. Some submerged, rooted vegetation in water bodies is eaten by waterfowl and mammals. Some invertebrates eaten by wildlife attach their eggs to this vegetation and feed and bask on living and dead plants. Wetlands, whether within or adjacent to water bodies, provide food, shade, breeding habitat, and cover for fish. Wetland vegetation supports a wide variety of insects, reptiles, amphibians, mammals, and birds. It also supports food for game fish such as large mouth bass, bluegill, and pickerel. After normal rainfall, banks hold water in a channel, maintaining a depth that insures cool temperatures for fish in hot weather. Steep or overhanging banks often have undercuts where fish hide. Shellfish beds and commercial and recreational fisheries are dependent on good water quality and healthy coastal and inland wetlands. When such areas are paved, graveled, filled, excavated, or otherwise altered, these habitat functions are lost. Degradation of fisheries and the loss of rare species are, to a great extent, related to loss of wetlands and filling of natural floodplains. The Commonwealth's wetlands provide recreational and aesthetic value to its citizens daily - such as opportunities for hiking, fishing, boating, and other activities. The tourism industry relies on these recreational opportunities as well as on the varied terrain, open spaces, and scenic countryside offered by our water- based resources. One study of the Charles River Basin found an acre of wetlands to be worth an average of $170,000 to the public (based on the wetland functions listed above, as well as their role in increasing property values and providing a variety of recreational uses). Using a conservative estimate of wetlands value of $100,000 per acre, the cumulative worth of the over 500,000 acres of wetlands in Massachusetts is 50 billion dollars. Unfortunately, many of these important wetland functions are not perceived as a direct benefit to the individuals who own wetlands. Therefore, destruction of wetlands may make economic sense to a landowner, but it does not make economic sense to the citizens as a whole - particularly not to the neighbor whose land is flooded, to fellow townspeople whose water rates are raised due to contaminated or depleted water supplies, or to those citizens throughout the many towns in the watershed whose jobs in the tourism and fishing industries are lost by continuing wetland destruction and degradation. ) Farming in Wetland Resource Areas (1/94) 1-5 Chapter One: Introduction The Importance of Wetlands Resource Areas and Public Interests: Charts and Illustrations Inland Wetland Resource Areas (Original: Clearwater Estates. MA Dept. of Environmental Protection, 1987) t c 00 C o o V 5* CO c o "S o m D>3 o © .S> m > £ < 1-6 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction The Importance of Wetlands Coastal Wetland Resource Areas (Both figures from A Guide to the Coastal Wetlands Regulations. 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S =3 e ° c wa&^osoaa0©© — OmCDHCDOCCCO-lO-J-JU. © >» ^ O o CD © "2 - 3" £©<%■ = © a © a CB "O -* a _ c c ^ c 9 ~ " 3 ° ~ z rj © e < ■* ■© "O "O _j c w c *- = © O a O £ CO CO -J CO u 3 CO cs a £ T3 .£ 15 CO o ■ o O -J o o a o o > c o 3 a c • ■I © s « JZ w •> a a >. -1 co — S "0 IS C E s ° £■ " o •o J2 — a o © 8- o 3 « E «- o a E « • 3 O O _ > c ■ 2 D9-0 o x >> = c£ 5« _ •ig i §£ o. c 2? ^ £" £■ Q, © a CD »- CM c c c c o o o o n ^ in to 1-8 Farming In Wetland Resource Areas (1/94) Chapter One: Introduction Wetlands Protection and Conservation Commissions Wetlands Protection and Conservation Commissions Overview of the Wetlands Protection Act The Agriculture Provisions of the Wetlands Protection Act To understand the 1 993 regulations regarding normal maintenance and improvement of land in agricultural use - the "Agriculture Regulations" in this Guide - it is necessary to review the regulatory framework established under the Wetlands Protection Act. The following is a simplified version of the nearly 100- page Wetlands Protection Regulations. The regulatory review process begins when work is proposed. When deciding whether or not a permit application must be filed, the applicant (the person proposing to do the work) has to answer some threshold questions (see related discussion, page 2-15) : •Is the work subject to regulation? Certain activities - filling, altering, removing, and dredging - are covered by the Act and defined in the Wetlands Protection Regulations. "Alter" is broadly defined to include such things as changing salinity, lowering water levels, destroying vegetation, or affecting water temperature. •Is the area where work will occur subject to protection? The Act and the Wetlands Protection Regulations describe certain protected "resource areas" - such as streams, ponds, wet meadows, floodplains, and bordering vegetated wetlands, as well as banks, beaches, dunes, and land subject to flooding - and 100 foot buffer zones around many of them. •Is there an exemption for this activity? Some activities - like public utility repair projects or mosquito control work performed under certain statutes - may not need to comply with the Act and its regulations because the Legislature created an exemption for these activities. If the exemption applies, nothing further need be done. "Normal maintenance or improvement of land in agricultural and aquacultural use" - as it is defined in the Wetlands Protection Regulations - qualifies for an exemption. If the work is subject to regulation and the land is subject to protection and there is no exemption, then a permit application must be filed with the local Conservation Commission and DEP. This application is called a "Notice of Intent." The Conservation Commission will review the application and hold a public hearing. After the hearing, if the project is designed in accordance with the Wetlands Protection Regulations the Commission will issue a permit (the "Order of Conditions") that allows the work to proceed with conditions. Otherwise the project will be denied. The Commission's ruling can be appealed to DEP by the applicant, the owner (if not the applicant), any person aggrieved by the Order, any abutter, ten residents of the city or town in which the work is proposed - or by DEP itself. Certain agricultural activities are exempt from review. Other agricultural activities may be subject to special emergency provisions or require a permit. If the activity is exempt, the project may be carried out without going through a permit application and review process. However, the exemption must be carefully understood. In the case of the Agriculture Exemption, farmers and regulators need to know how the Exemption is defined and what conditions, if any, are attached to particular exempt activities. The Agriculture Exemption applies to "normal maintenance" and "normal improvement" activities conducted on "land in agricultural use." What are the meanings of "normal maintenance," "normal improvement." and "land in Farming in Wetland Resource Areas (1/94) 1-9 Chapter One: Introduction Wetlands Protection and Conservation Commissions agricultural use"? DEP, DFA, and the FAC spent many hours wrestling with these questions; their answers are found in the 1993 Agriculture Regulations, which define the phrases. (The full text of the Agriculture Regulations can be found in Appendix B of this Guide.) Work that falls within the definitions is exempt; work that does not fall within the definitions requires the filing of a Notice of Intent. The definitions are found in the Wetlands Protection Act Regulations at 310 CMR 10.04( Agriculture) - that is, under the heading "Agriculture" found in section 10.04 of Volume 310 of the Code of Massachusetts Regulations ("CMR"). The 1993 Agriculture Regulations contain two other important provisions besides the revised definition of "normal maintenance and improvement of land in agricultural use": • An emergency provision for agriculture. The rules governing work to be done in an emergency are different from the rules for ordinary situations. The emergency provisions are found at 310 CMR 10.06(6). • A new "Conservation Plan limited project" provision for certain agricultural water control structures. Work relating to these structures is not exempt because that work is not defined as "normal maintenance or improvement." Accordingly, a permit is required. But under the terms of the "limited project," the Conservation Commission can issue a more lenient Order of Conditions than usual. The new Conservation Plan limited project is found at 310 CMR 10.53(5). The Local Conservation Commission Massachusetts communities were given the authority to establish Conservation Commissions with the passage of the Conservation Commission Act (Massachusetts General Laws Chapter 40, Section 8C) in 1957. Today, every city and town has a Commission of three to seven members appointed by the selectmen or mayor. All Commissioners are volunteers who contribute long hours to their communities. Farmers are members of some Commissions. Nearly one half of the boards have some staff support, which can range from a part-time secretary to a full-time professional administrator. Through the Conservation Commission Act, Commissions are charged with "the promotion and development of natural resources and the protection of watershed resources." Natural resources are important to the public health and welfare as well as for their intrinsic value. Watershed protection is essential to provide an abundance of clean water and to protect plant and animal habitat. The "development" or alteration of some resources may occur to provide other public benefits, such as production of food and fiber. Such activities can be valuable and appropriate when protection of natural resources and watersheds is assured. Conservation Commissions acquire and manage open space, prepare Open Space Plans, promote water quality protection strategies, and often are involved in planning issues that focus on open space and resource protection. Conservation Commissions work to protect farmland for its open space and vista value as well as to preserve an agricultural base in their communities. Commissions may arrange for farmers to work some municipal conservation land - often in exchange for mowing the rest of a field or other services. In addition, Commissions encourage landowners to participate in government programs aimed at keeping their land in agriculture. In some cases, communities help to purchase development rights. 1-10 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction Wetlands Protection and Conservation Commissions More than 20 years ago, Conservation Commissions were given the additional responsibility of administering and enforcing the Massachusetts Wetlands Protection Act. Over one third of Massachusetts communities also have local wetlands protection bylaws, which are administered by the Conservation Commission. It is important to note that activities that are exempt under the Wetlands Protection Act may not be exempt under a local bylaw. Both farmers and Commissions should check these local bylaw provisions. UJoodled ^uJawlf Farming in Wetland Resource Areas (1/94) 1-11 Chapter One: Introduction Understanding Agriculture in Massachusetts Understanding Agriculture in Massachusetts Farming, fishing, and forestry are "primary" industries. Primary industries require and depend on natural resources such as vegetation, water, and soil. They must manipulate these natural resources to be productive. The challenge to these industries is to sustain the natural resource base through management that avoids, minimizes, and mitigates damage to wetlands, water quality, and wildlife habitat. Over the past few years, fundamental changes in agriculture have begun to reshape farm practices, increasingly making them more environmentally responsible. Reduced use of pesticides and fertilizers, alternative pest management strategies, conservation tillage, and composting are examples of practices that reduce negative environmental impacts. Fundamental changes in farm policy and technology have shifted the thinking of farmers and agricultural professionals about best management practices. In Massachusetts, it no longer is acceptable to drain or fill wetlands to create new farmland. An increasing number of farmers now carefully consider applications of chemicals, off-site and groundwater impacts of certain farming practices, and the long-term impacts of soil and water-management strategies. Many of these changes create benefits not only on the farm but for the community as a whole. While some new practices create savings (for example, by reducing purchases of fertilizers and pesticides), many others place new economic burdens on farmers and require flexibility and adaptability to change. Nonetheless, farming practices and approaches vary widely and an acceptable definition of "normal" has been difficult to achieve. In some cases, what has been accepted as normal may not be a "best management practice." Examples include unrestricted livestock watering from natural water bodies or spreading manure on frozen ground. In some cases, normal practices - such as clearing vegetated field drainage swales - may have adverse impacts on an area under Wetlands Protection Act jurisdiction. Because Massachusetts farms often are located in close proximity to wetlands and waterways, farming may have a significant effect on these resource areas. For example, moist, rich "bottom land" (which sometimes falls under Wetlands Protection Act jurisdiction) is of significant value to a farmer. Some years it may be too wet to farm; in dry years it may be the best or only productive field. Cranberry production takes place predominantly in wetlands. Wetlands that are farmed still are under Wetlands Protection Act jurisdiction and still provide some wetlands functions. Aquaculture enterprises take place in fresh or salt water bodies. These enterprises rely entirely on ponds, tidal areas, or bogs, as well as surrounding hydrology, to produce a crop. The irregular New England glacial topography has created a wide variety of soils, sloped terrains, frequent pockets of high water table, complex drainage, and extensive floodplains. Massachusetts farms must operate within these constraints. Farmers view their farms as whole systems. A farm is both a business and a complex unit in which all components relate to one another. "Whole farm" planning is encouraged so that nutrient cycling, enhancement of beneficial birds and insects, control of pests, control of off-site impacts, monitoring of water quality, and rotation of crops all are viewed as part of a single resource management system. This integrated-systems approach is being promoted by providers of technical assistance and in recently-introduced legislation at the 1-12 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction Understanding Agriculture in Massachusetts Massachusetts Farming is Diverse Functions Served by Farming federal level. Often, however, regulation takes an approach that requires categorizing and segmenting. Farming in Massachusetts is diverse. Compared to the corn, soy beans, and livestock of the Midwest, the 6,000 farms in Massachusetts produce (for example) dairy products, vegetables, nursery crops, livestock, herbs, cut flowers, hay, garlic, trout, maple sugar, cranberries, small and orchard fruits, eggs, honey, cordwood and other forest products, and quahogs. There are farmers who grow hydroponically and many who grow organically; farmers who sell wholesale, retail, through farmer's markets, farmstands, subscription farms, and/or mail order. Such diversity is essential to a thriving agricultural economy. Massachusetts farmers constantly seek new products, new markets, new niches in the marketplace. That means change on the farm is normal. Innovation is to be expected and encouraged, in terms of both products and practices. Currently, many farms are in the process of diversifying. Some are converting to new crops, often intensifying their management and production. Further, many farmers are involved in agricultural production part-time, holding off-farm and seasonal jobs. A viable Massachusetts farm may be 2 acres or 200 acres, in each case with a productive and intricately-managed system. These farms contribute a total of $2 billion to the Massachusetts economy and generate thousands of jobs. Yet, as in the rest of New England, the Massachusetts farm sector is struggling. In the face of high land costs, development pressures, nuisance complaints, and rising production costs, it is increasingly difficult for Massachusetts farmers to remain profitable. New England loses 80,000 acres of farmland annually by conversion to non-farm uses. Massachusetts agriculture serves the public interest in several important ways, just as wetlands and water resources serve the public interest in the important ways previously described. Agriculture supplies the Commonwealth with the: Productive function. Most importantly, farms provide food, fiber, and other . commodities for local and regional consumption. • Economic function. Farmers generate critical economic activity in the on- farm, inputs, and value-added sectors. They contribute to the vitality of the rural economy and lower the cost of community services with a low per-acre demand on undeveloped land. Cultural function. Farms provide a rich historic and cultural heritage. • Amenity function. Farms maintain open space and scenic landscapes. • Habitat function. The open, natural, and edge areas provided by farms contribute to habitat diversity. Recreation function. Farmland often is available for hunting, skiing, and other activities. Massachusetts farmers make a valuable contribution to the Commonwealth. At the same time, as stewards of the land they have a responsibility to conserve resources and employ farming practices that avoid, minimize, and mitigate harm to the natural resource base. Wetlands regulators in turn have a responsibility to implement a resource protection law that recognizes the natural resource requirements of farming. Farming in Wetland Resource Areas (1/94) 1-13 Chapter One: Introduction What You Can Do What You Can Do Ensuring that these regulations are implemented in the be§t way possible will require active attention, patience, and a willingness to learn on the part of all concerned. Below are some suggestions that can help Conservation Commissioners and farmers alike work with the Wetlands Protection Regulations and one another. Conservation Commissioners Become familiar with the farms and farmers in your community. Remember that some farmers may not be informed about wetlands values and the Wetlands Protection Act. Offer a tour of some sites and explain the important wetlands values. Designate one Conservation Commission member as your "agriculture specialist." Encourage members to be conversant with the agriculture provisions of the Wetlands Protection Act. Invite your county's District Conservationist (DC) from the United States Soil Conservation Service (SCS) to a Conservation Commission meeting to discuss farm planning and SCS technical assistance. Remember that the farmer who undertakes a project may not be the landowner. Both the farmer and the landowner may need to be involved in the planning and permitting processes. Locate a farmer, with the help of your DC, who might be interested in hosting a farm tour or becoming a "host farm" for ongoing education. Use a problem solving rather than a confrontational approach. Communicate and work with your DC on changes to conservation plans for both permitted and exempt projects. Re-evaluate local bylaws in light of the newly-adopted Wetlands Protection regulations concerning agriculture. Maximize opportunities to educate and be educated about farming and wetlands. Co-host a workshop with a local or county farm group. Make wetlands and other environmental materials and publications available to farmers and agricultural agency personnel. Participate in "scoping meetings" on site with the farmer and SCS. Contribute information and data to the Monitoring Committee that DEP and DFA are forming to study real-world experiences, in order to shape any revisions to the regulations. Farmers Familiarize yourself with the purpose of the Wetlands Protection Act and the agriculture provisions in the regulations. Introduce yourself to your Conservation Commission and attend some of its meetings. Volunteer to serve on your Conservation Commission. Use a problem solving rather than a confrontational approach. Meet with your Conservation Commission to better understand local conditions and sensitive resources, and pursue farm practices that protect them. Offer a farm tour. Be a host farm or woodlot site for one or more educational visits. Visit the Conservation Commission office and borrow materials of interest. Discuss wetland resource values and management practices that protect those values with your friends. Remember that Conservation Commission membership changes; acquaint yourself with new members. Pass along farm-related materials and publications. Inform your Conservation Commission about new projects and changes on 1-14 Farming in Wetland Resource Areas (1/94) Chapter One: Introduction What You Can Do your farm; engage the Commission early in the process. Develop a conservation plan for your farm and seek SCS or other technical guidance for crop and resource management strategies that minimize negative impacts. Contribute information and data to the Monitoring Committee that DEP and DFA are forming to study real-world experiences, in order to help shape any revisions to the regulations. Farming in Wetland Resource Areas (1/94) 1-15 I t ( Chapter Two: Working with the Regulations Approaching the Exemption Chapter Two: Working with the Regulations Approaching the Exemption Agriculture Components of the Exemption Work Normal The intent of the revised Wetlands Protection Regulations is to clarify the Agriculture Exemption to the Wetlands Protection Act. The Agriculture Exemption itself is contained in the statute. The language of the statute (clause 1 8 of Massachusetts General Laws Chapter 131, Section 40) exempts "work performed for the normal maintenance or improvement of land in agricultural or aquacultural use." The definitions section of the Wetlands Protection Regulations [at 310 CMR 10.04(Agricu]ture)] gives a detailed explanation of the exemption by defining Agriculture. The revised definitions are longer and more detailed than the definitions they replaced. They give more examples of activities and clarify certain terms. In certain situations, defining what is "normal" or what is "land in agricultural or aquacultural use" is determined by referring to certain parameters such as "reasonable" size or distance limitations. To work with the Agriculture Exemption, it is essential to understand: • First, the components of the exemption. Second, the conditions that are attached to the components of the exemption. The components of the exemption for "work performed for normal maintenance or improvement of land in agricultural or aquacultural use" are: a. Work ("activity"). b. Normal. c. Maintenance. d. Improvement. e. Land in agricultural use. It is the work, or the activity, that is exempt, not the land. Even though a piece of land is in agricultural use, a particular activity may not necessarily qualify for the exemption. In other words, not all activities are exempt simply because they take place on a farm. The work or activity must be considered "normal." Some normal practices are listed in the Agriculture Regulations, but they do not list ah of the activities that are considered normal. Descriptions of many normal practices appear later in this Guide (see Chapter Four). In evaluating whether an activity is normal, Conservation Commissioners and farmers should consider the following: A "normal" practice may not always be considered a "best practice." For example, some farmers apply manure on their fields when the ground is frozen. This may cause nutrient runoff, but it is exempt because it is considered "normal." 9 Normal practices don't necessarily look nice. For example, placement of slash is a normal practice that, to some, appears messy and disruptive. Farming in Wetland Resource Areas (1/94) 2-1 Chapter Two: Working with the Regulations Approaching the Exemption Maintenance Improvement • A normal practice may cause impacts to resource areas. For example, clearing agricultural drainage swales every so often is a necessary practice, even though wetlands vegetation may be present. Or an unimproved livestock watering access may disturb the bank of a stream. • To be normal, a practice must fit the scale and the scope of an operation. Thus, it is not normal to dig a 10,000 square foot livestock pond to provide for only 15 cattle. • What is normal may involve change. It may be normal to change commodities, erect or modify farm structures, replace fencing, or introduce irrigation. It may be normal to modify practices and to adopt new technologies and innovations. Keep in mind, however, that the Wetlands Protection Regulations may place limits on such changes. Maintenance activities involve practices that keep existing operations in good working order. Examples of "maintenance" include all aspects of crop management, management of related water bodies, and repairs to existing farm structures, access roads and ways, and fencing. Maintenance will not necessarily happen often. Sanding of cranberry bogs routinely happens every 3 to 5 years and repair or restoration of subsurface drainage may happen every 1 0 years; still, they are considered to be normal maintenance. Maintenance activities must be necessary and directly related to the production or raising of agricultural or aquacultural commodities. Building a farm stand or a produce-packaging facility in a wetland resource area therefore generally would not be exempt. Also, the size and scale of maintenance activities must be appropriate to the farm enterprise. Improvement activities involve change. Improvements may enhance growing conditions, involve construction, or require the use of equipment in resource areas or a buffer zone. Examples include: creating a windbreak to reduce soil loss; building a by-pass channel/canal to improve water quality in a cranberry system; digging a manure pit to prevent leaching; or establishing an irrigation system. Improvements might be innovative, such as adopting rotational grazing, a practice that involves changes in fencing and pasture seeding. Intensifying production, diversifying crops, and adding livestock are examples of improvement strategies typically used by competitive Massachusetts farmers. An improvement to one area may trigger a change in the use of a related area. For example, if a farmer converts from dairy to vegetable production, it would be considered a normal improvement not only to convert suitable pasture or field corn land to row crops, but also to adapt a livestock watering facility to irrigation and to set up greenhouses or cold frames in a former barnyard. As with maintenance activities, improvement activities must be necessary and directly related to the production or raising of agricultural or aquacultural commodities. Building a farm stand or a produce-packaging facility therefore would not be exempt. Also, the size and scale of improvement activities must be 2-2 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Approaching the Exemption Land In Agricultural Use (LIAU) Active vs. Inactive Land appropriate to the farm enterprise. To qualify for the Agriculture Exemption, land must be in agricultural use. The Agriculture Regulations are quite specific about what constitutes land in agricultural or aquacultural use: the exemption applies only to those land areas . within the farm gate that presently and primarily are in production or that customarily and necessarily are related to production. Thus, bringing abandoned land back into production (see discussion below), opening new land to farming (enlarging a farm enterprise into previously unaltered resource areas), or creating new access roads and ways or work areas are not exempt activities because the land in question is not presently and primarily in or related to production. (Certain improvement activities are an exception to the rule just stated, that land must be "presently and primarily in production" or "customarily and necessarily related to production" to qualify for the Agriculture Exemption. These activities - the squaring off of field edges and the creation of certain water control structures - are described later in this Guide. Otherwise, it is NOT considered exempt to convert so-called related land to cropland.) The Agriculture Regulations also stipulate that, to be exempt, land must be used in producing or raising agricultural commodities for commercial purposes. The definition of "commercial" is discussed below (see page 2-4). Although the land must be "presently and primarily" in agricultural use, the definition allows it to be "inactive" for up to 5 consecutive years without losing exempt status - or longer, if the land is inactive as part of a USDA contract pursuant to the Conservation Reserves Program. For example, a field or pasture may be out of use temporarily because of changes in enterprise, a financial situation, or as a strategy to manage weeds or fertility; still, it is considered land in agricultural use for up to five years. Land that currently is inactive as part of an active rotation is considered land in agricultural use. And a field that is fallow - that is, plowed but unseeded - is not considered inactive. Land under the jurisdiction of the Wetlands Protection Act that has been out of production for longer than five years (without being under USDA contract) is considered new land. Farming activities proposed for such areas are not exempt and therefore require a permit (an Order of Conditions) under the Wetlands Protection Act. Thus, a pasture that has not been grazed or managed at all during the past five years is not considered land in agricultural use, even though fencing still surrounds it. It is proper for a Conservation Commission or DEP to require documentation of the extent and the timing of agricultural use. Such proof could be aerial photography, a USDA farm plan, hay receipts, or ASCS cropping records. Land in Production "Land in Production" is one kind of land in agricultural use as defined by the Agriculture Regulations. It is that portion of the farm presently and primarily used to produce or raise agricultural commodities for commercial purposes. A field of com, a fenced pasture of grazing sheep, an orchard, a chicken yard, a pick-your- own strawberry patch - all of these are clear examples. The area of a forest under active management also is considered productive land. Farming in Wetland Resource Areas (1/94) 2-3 Chapter Two: Working with the Regulations Approaching the Exemption Necessary and Related Land "Necessary and related land" is the other kind of land in agricultural use as defined by the Agriculture Regulations. It is the portion of the farm that is "presently and primarily used in a manner related to, and customarily and necessarily used in, producing agricultural commodities." These are areas of the farm that are not productive cropland but that are essential to the operation of the farm because they support existing land in production. Examples include: existing access roads and ways; composting areas; barns and sheds; fire ponds; livestock crossings; woodlot landings; and field edges. Related land also includes those areas where water management activities take place, such as: pond inlets and outlets; accesses; field surface and subsurface drainage systems, including pipes and outlets; pumphouses; and permanent or temporary culverts. Related areas may be used continually, such as an access to a field; seasonally, such as the area set aside for the burning of orchard primings; or infrequently; such as a sand pit for cranberry bog sanding. All of these areas are integral and necessary components of active enterprises. Definition of Commercial Examples According to the definition of "land in agricultural use" at 310 CMR 10.04(Agriculture)(a). the land in question must be used to produce or raise certain agricultural commodities "for commercial purposes." What distinguishes commercial purposes from non-commercial purposes? The American Heritage Dictionary (Second College Edition, 1985), gives the following relevant definitions: "l.a.Of or pertaining to commerce." ["Commerce," in turn, is defined as "The buying and selling of goods."] "3. Having profit as a chief aim." Using these definitions, a "commercial purpose" can be characterized by two key elements: first, the activity of selling; and second, the goal of making a profit. It is not enough to have one without the other - both elements must be present. Whether they are present must be determined on a case-by-case basis. It is not possible to give an exhaustive list of examples that will cover every question that might arise about the meaning of the word "commercial." The following examples, therefore, are meant as illustrations only: Q For many years, Ms. Smith has grown strawberries on her property. A portion of the crop grows in the 100-foot buffer zone to a resource area under the Wetlands Protection Act. Ms. Smith consumes some of the strawberries herself. Some she gives away fresh to friends and relatives. The rest she turns into preserves; she uses some of the preserves herself and, again, she gives the rest away. May she perform "normal maintenance" or "normal improvement" activities, such as spreading compost, without filing with the Conservation Commission? A The answer is no. The land is not "in agricultural use" as defined in the Agriculture Regulations. Ms. Smith is not selling the strawberries. She has no goal of making a profit. 2-4 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Approaching the Exemption Examples Q For many years, Mr. Jones has grown strawberries on his property. A portion of the crop grows in the 1 00- foot buffer zone to a resource area under the Wetlands Protection Act. Mr. Jones consumes some of the strawberries himself. The rest he sells on weekends from his front porch to help cover his costs for fertilizer, water, and the like. May he perform "normal maintenance" or "normal improvement" activities, such as spreading compost, without filing with the Conservation Commission? A The answer is no. The land is not "in agricultural use" as defined in the Agriculture Regulations. Mr. Jones is selling his strawberries, but he has no goal or expectation of making a profit. Note that whether or not he makes a profit is not the issue - rather, whether or not he has "profit as a chief aim" is the issue. Q Mrs. Green runs a stable. Her customers board their horses there. The customers take the horses for rides on Mrs. Green's property. Some of the horse trails pass through wetlands and Mrs. Green clears the trails to keep them open. She also raises and harvests hay, partly in wetlands resource areas and buffer zones, which she feeds to the horses. The customers are charged for the hay that Mrs. Green provides. Is Mrs. Green's land in agricultural use? Summary A The answer is yes and no. Yes, the land where hay is raised and harvested is in agricultural use. The hay is an agricultural commodity that is sold by Mrs. Green as part of her for-profit activity in running the stable. She could just as well sell the hay to a feed business and require her customers to supply their own hay; instead, she has cut out the middle man. That does not affect the commercial nature of the activity. However, the riding paths are not in agricultural use. Operating a stable is not commercial agriculture because no commodity grown on the premises is sold. The services associated with the stable - boarding, grooming, and feeding the horses - do not constitute raising an agricultural commodity. It would be different if Mrs. Green bred horses for sale. Merely keeping them on the premises, however, does not qualify the land used in that business for the exemption. It is important to remember the significance of these activities not qualifying for the Agriculture Exemption. It does not mean that the landowner may not grow strawberries or operate a stable. It does mean that before the landowner takes actions that would remove, fill, dredge, or alter a wetland resource area or alter a Buffer Zone, he or she must file a Notice of Intent and receive an Order of Conditions. To summarize, the exemption for normal maintenance or improvement of land in agricultural use must meet the following tests: • It is the work, or activity, that is exempt, and not the land itself. The activity must be considered normal. The activity must be considered maintenance OR the activity must be considered improvement; AND • The activity must occur on land in agricultural or aquacultural use. Farming in Wetland Resource Areas (1/94) 2-5 Chapter Two: Working with the Regulations Approaching the Exemption If all of these conditions are met, the activity can qualify for the Agriculture Exemption. Before the farmer may proceed with the exempt activity, however, certain conditions must be met. Conditions Even though an activity is considered "exempt," there are conditions that must be satisfied in order to exercise the Agriculture Exemption. Farmers and Conservation Commissioners need to understand these conditions, which can be classified as either "general" or "specific." General conditions The following general conditions apply every time the Agriculture Exemption is exercised: Specific conditions All maintenance or improvement activities shall be "undertaken in such a manner as to prevent erosion and siltation of adjacent water bodies and wetlands." This condition is contained in the introductory paragraph to 310 CMR 10.04(Agriculture)(b) and in 310 CMR 10.04(A^nculture)(c)(l). Filling or dredging of a salt marsh is prohibited under all circumstances. This condition is contained in the introductory paragraphs to both 310 CMR 10.04(Agriculture)(b) and 310 CMR 10.04( Agriculture^. All maintenance and improvement activities must be "conducted in accordance with federal and state laws." This condition is contained in the introductory paragraph to 310 CMR 10.04(Agriculture)(b) and in 310 CMR 1 0.04( AgricultureXcH 1 ). Examples of laws that might be relevant are those dealing with pesticide application, fuel storage, and composting. There also are specific conditions that appear in particular sections of the Agriculture Regulations. These have to do with: Limitations on size. Limitations on location. Limitations on loss of flood storage capacity. Particular prohibitions on storage sites for fertilizer and pesticides. Protection for rare species habitat. Requirements for conservation plans approved by SCS (see page 2-10 of this Guide). The forestry provisions of the Agriculture Regulations have additional conditions that refer to other laws and regulations, as well as to specific forestry practices. 2-6 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Selected Exempt Activities Selected Exempt Activities Field Edges [See 310 CMR 10.04(Agriculture¥b¥5Vl "The management of existing field edges" is one of the exempt activities that is allowed because it is defined as "normal maintenance of land in agricultural use." What is a "field edge" and how does one manage it? Here are the key points to keep in mind (assuming, of course, that the proposed activity in fact is to occur on "land in agricultural use"): a. A managed field edge is a zone surrounding the land in production. Under the Agriculture Regulations, certain activities may occur in this zone in keeping with the Agriculture Exemption. b. A managed field edge is different from the boundary of a field. The boundary of a field (the land in production) is a line that marks where the field (which may be squared off - see discussion below) ends and the land outside of the field begins. By contrast, the field edge is not a line but an area. c. One purpose of managing a field edge is to maneuver equipment around the land in production; for example, to drive tractors around the perimeter of the field without crossing over furrows or planted crops. A field edge may be used temporarily to park equipment being used in the field. Also, the field edge is an area where trees that provide unwanted shade can be cleared or where vegetation that may harbor pests (called "alternate hosts") can be removed. d. A field edge must be "existing," meaning that it must surround the land that already is in production. If new land is put into production, the creation of that use and of any field edge to support it would require the filing of a Notice of Intent. e. The maximum extent of the managed field edge is "100 feet from the land in production." If the management of a field edge at a given time extends less than 1 00 feet from the land in production, the farmer may extend it to the full 100 feet without filing a Notice of Intent (provided all the conditions of the Agriculture Regulations are satisfied). For example, management activities might change to accommodate the requirements of a new commodity or new machinery. To go beyond the 100 feet, a Notice of Intent is required. f The Agriculture Regulations set out specific practices associated with the management of field edges: mowing, burning, brush cutting, and removing trees. However, the Agriculture Regulations are not limited to these activities. Any other activities that are claimed as "management of field edges" must be consistent with the purposes of field edges described in Point (c), above. g. The Agriculture Regulations specifically state that "the management of any field edge that falls within a Bordering Vegetated Wetland is not intended to allow the conversion of Bordering Vegetated Wetland into cropland." In other words, clearing trees and other vegetation to reduce shading, control pests, and provide better access for tractors does not open the door to expanding the land in production. The field edge must remain a field edge and may not be the cause of creeping expansion of exempt activities. Farming in Wetland Resource Areas (1/94) 2-7 Chapter Two: Working with the Regulations Selected Exempt Activities Squaring Off a "Field Boundary' Substantial Fill [See 10.04(Agriculture)(c)(l)(d).] "The squaring off of fields and bogs" is one of the exempt activities that is allowed because it is "normal improvement of land in agricultural use." What is "the squaring off of fields and bogs" and what limitations apply? Here are the key points to keep in mind: a. This is not the same as management of field edges. As noted in the discussion above, a field edge is a managed area extending to a maximum of 100 feet around the land in production. By contrast, squaring off refers to straightening out a line marking the limits of the land in production. In other words, the farmer is allowed to take an irregular or jagged boundary and make it regular or straight. b. The purpose of this activity is to make management of the land in production easier. For example, it is much less difficult to operate a plow up and down the length of a field when the boundaries of the land in production are regular. Older fields and cranberry bogs may have been shaped irregularly and newer equipment cannot operate in those areas. c. When squaring off fields and bogs, any alteration of a Bordering Vegetated Wetland requires the filing of a permit application - a Notice of Intent. d. The purpose of this activity is not to increase the amount of land in production. Rather, the alterations allowed under the Agriculture Regulations must be the smallest amount reasonably necessary to square off the field, that is, to make the boundaries of the land in production regular and even. Therefore, some square footage that was outside the land in production will come into production, but it must be reasonably minimized. e. When squaring off fields and bogs, no fill may be placed within Bordering Land Subject to Flooding. In other words, this activity cannot result in the loss of flood storage capacity. [See 10.04( Agriculture)^).] In carrying out activities that are exempt because they meet the definition of "normal maintenance," there is a condition in all cases that prohibits "placing substantial amounts of fill in Bordering Land Subject to Flooding" (BLSF). How much fill constitutes "substantial" fill? Substantial is a difficult word to pin down. Dictionary definitions do not provide any useful guidance. Therefore, it is necessary to ask the purpose of the condition. Clearly, it is not the intention of the Agriculture Regulations to prohibit filling of BLSF outright; if that were the intention, they would not include the word substantial. Why is it that some amount of filling of BLSF is allowed, but some larger amount of filling is not? BLSF is regulated under the Wetlands Protection Act because of its ability to store flood waters. Filling such land reduces the amount of flood storage available, increasing the likelihood of storm or flood damage elsewhere. Adding a teaspoon of fill to BLSF will not cause flood waters to flow elsewhere. A substantial amount of fill, however, will have that result. 2-8 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Selected Exempt Activities Accordingly, filling becomes substantial when the amount of fill is enough to reduce the storage capacity of the BLSF. This can be determined by engineering calculations as well as by experience and common sense. Even with this explanation, deciding whether or not fill is substantial will not be a science; for this reason, farmers are encouraged to seek a Determination of Applicability (see page 2-15 of this Guide) from their Conservation Commission before placing fill in Bordering Land Subject to Flooding. The 4,000 S.F. Limit for Construction of Farm Structures [See 1 0.04( Agriculture^ c¥ 1 )(c).] "The construction of farm structures, not including habitable dwellings," falls within the Agriculture Exemption because it is "normal improvement of land in agricultural use." The Agriculture Regulations impose a limitation on this activity: the footprint of the new farm structure may not exceed 4,000 square feet. Which of the following interpretations of the regulation is correct? a. The 4,000 s.f limit is applied cumulatively, allowing one or more structures to be built so long as the combined area of the footprints stays under the limit. b. Multiple structures can be built and there is no limit to the combined area of the footprints, so long as the footprint of each structure is under 4,000 s.f. A careful reading of the Wetlands Protection Regulations indicates that the correct answer is b.: there is no cumulative limit so long as each structure's footprint is less than 4,000 s.f The Agriculture Regulations allow "the construction of farm structures" (note the plural) "provided that the footprint" (note the singular) "of the farm structure" (note again the singular) "does not exceed 4,000 square feet." In other words, "structures" - more than one structure - are allowed, provided that each individual structure meets the limit. There is no attempt to impose a cumulative limit. Of course, each farm structure must meet not only the 4,000 s.f. limit. It also must meet the general standards applied to all "normal improvement" activities: it must be directly related to production or raising of an agricultural commodity - for example, erecting a farm stand would not qualify; construction must be undertaken so as to prevent erosion and siltation of adjacent water bodies and wetlands; and all state and federal laws must be obeyed. Does the 4,000 s.f limit on building footprints apply to composting and storage areas? At first glance, that might seem to be the case because "the construction of composting and storage areas" - with no stated limit on building footprints - is listed as another "normal improvement" activity at 310 CMR 1 0.04( Agriculture)(c)( 1 )(h). However, such an interpretation would have the practical effect of deleting the condition in 310 CMR 1 0.04( Agriculture)(c)( 1 )(c). If composting or storage is to be done on the ground without construction of a building, then no square foot limits apply. On the other hand, if compost or other farm materials are to be kept in a building, then the building is a "farm structure" subject to a footprint limitation of 4,000 square feet. Farming in Wetland Resource Areas (1/94) 2-9 Chapter Two: Working with the Regulations Agriculture Exemption and Conservation Plans The Agriculture Exemption and Conservation Plans Overview As noted in an earlier section (see page 2-6 of this Guide), some agricultural activities are exempt without the need to comply with any specific conditions. Other activities are exempt only if they comply with specific conditions. Certain improvement activities - having to do with water management projects - are noteworthy because they are not exempt unless the activity is part of a farm Conservation Plan (CP) that has been approved by SCS and submitted to the Conservation Commission for review and comment. The SCS Conservation Plan process is employed in a second place in the Agriculture Regulations. In the case of the exemption described in the preceding paragraph, there are limits on the number of square feet of Bordering Vegetated Wetlands (BVW) that can be altered. In the second case, these limits are higher - but the activities no longer qualify as exempt. Instead, the Agriculture Regulations provide for a special kind of Wetlands permit known as a "Conservation Plan limited project." This Conservation Plan limited project is available only if- Once again - a process employing an SCS Conservation Plan is followed. The following sections will describe the use of Conservation Plans under the Agriculture Regulations; the special conditions for exempt projects that employ a CP; and the so-called Conservation Plan limited project that relies on the CP. See also in this Guide Chapter Three, Appendix E, and Appendix F for more information about SCS and the Conservation Plan process. Farmers, Conservation Commissions, and Conservation Plans A Conservation Plan is likely to cover many activities that take place on many portions of a farm - not just activities that relate to wetlands. There is no rule that requires farmers to consult with Conservation Commissions when preparing Conservation Plans. Nonetheless, DEP, DFA, SCS, and everyone else connected with the drafting of the Agriculture Regulations strongly urges farmers and Conservation Commissions to work together in preparing those relevant portions of the Conservation Plan. Farmers are encouraged to contact the Conservation Commission at the very beginning of the planning process. Asking to be placed on the agenda for an informal discussion of the proposed project is a good first step. Inviting Commission members to view the site, together with SCS personnel, can be critical to the success of the process. Commissioners are encouraged to attend on-site scoping meetings. Commissioners can offer valuable assistance in delineating wetland boundaries and analyzing wetland resource protection issues. The Commission's constructive input, combined with the farmer's experience and knowledge of the project, can enhance everyone's understanding of the issues and make a good CP into one that is excellent. DEP and SCS have entered into a Memorandum of Understanding - or MOU - concerning the role SCS will play under the Wetlands Protection Regulations. A copy of the MOU can be found in Appendix C to this Guide. Use of the Conservation Plan is optional. On the one hand, a farmer has the choice of requesting technical assistance from SCS and the Conservation Districts to prepare the CP. On the other hand, the farmer can forego use of the CP and apply for permission to install the improvements through the normal Wetlands Protection Act permit process; rather than relying on an exemption, the farmer will have to file a Notice of Intent with the local Conservation Commission. 2-10 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Agriculture Exemption and Conservation Plans Exempt Water- Management Projects Key Points Certain water-management projects that occur partly or entirely within a Bordering Vegetated Wetland (BVW) qualify as exempt "normal improvement" activities when a CP has been approved by SCS and submitted to the Conservation Commission for review and comment. The projects [with the amount of BVW that may be altered, as listed at 310 CMR 1 0.Q4(Agnculture)(c)(2)(f)] are: Reconstruction of existing dikes (up to 5,000 s.f). • Reconstruction and expansion of existing ponds and reservoirs (up to 10,000 s.f). • Construction of tailwater recovery ponds (up to 10,000 s.f). Construction of by-pass canals/channels (up to 5,000 s.f). In each case, the dike, pond, reservoir, tailwater recovery pond, or by-pass canal/channel must be "directly related to production or raising of the agricultural commodities" described in the definition of "land in agricultural use" found at 310 CMR 10.04(Agnculture)(a). If a farmer wants to carry out one of these water-management projects as an exempt activity - that is, without filing a Notice of Intent with the Conservation Commission - a Conservation Plan is required. This is a new and unique approach for the Wetlands Protection Regulations. In their work together creating the Agriculture Regulations, DEP, DFA, and representatives of the agricultural and environmental communities have agreed that these projects are "normal" (and therefore exempt) if the improvements are made with the careful planning and technical assistance that SCS provides as part of the CP process. Here are the major points to keep in mind about using CPs for these exempt activities: The CP must be submitted to the Conservation Commission for its review at a public meeting before the work is performed. Presently, there are no special forms to be used - simply submit a copy of the plan by hand delivery or certified mail. There is no filing fee. There is no requirement that DEP be notified. oo Note that the farmer does not need to submit the entire CP - only the portion relating to the work that is claimed to be exempt. After all, a CP may cover many activities taking place in a large area; not all of them will affect wetlands. The Conservation Commission may feel the CP was not prepared properly. In that case, it may put its objections in writing and give them to the farmer, who must relay them to SCS. Under Section 5(e) of the MOU between DEP and SCS, SCS agrees to honor Conservation Commission objections to wetland boundary delineations. (If there is a wetland boundary established by DEP through an appeal process, however, SCS will use that "final" delineation instead.) Otherwise, SCS need not modify the CP based on the Conservation Commission's comments, although SCS will carefully consider all comments. Farming in Wetland Resource Areas (1/94) 2-11 Chapter Two: Working with the Regulations Agriculture Exemption and Conservation Plans oo By submitting a CP to the Conservation Commission, the farmer is inviting the Commission to visit the site for the purpose of evaluating the wetland boundary delineation. The farmer and the Commission should work together to establish a convenient time to conduct a site visit. If the farmer later revises the wetland boundary delineation used in the CP, that revision must be submitted to the Conservation Commission. The Commission then would have the opportunity to comment or object to SCS as described above. The fanner must carry out the improvement activity as described in the CP. Non-Exempt Water- Management Projects If a farmer cannot meet the square footage limitations described above for the exempt water-management projects, the only way to perform these improvement activities is to get a permit; that is, to file a Notice of Intent with the Conservation Commission and receive an Order of Conditions allowing the work. When a farmer wants to receive a permit for non-exempt water-management projects, the Agriculture Regulations include a second use for Conservation Plans, as described at 310 CMR 10.53(5). Under this regulation, the Conservation Commission may allow higher limits on the amount of Bordering Vegetated Wetland to be altered by issuing an Order of Conditions - or permit - for a "Conservation Plan limited project." The Conservation Commission must, except as described below, issue an Order of Conditions for the following activities [with the amount of BVW that may be altered, as listed at 310 CMR 10.53(5)(e)] under a Conservation Plan limited project: Reconstruction of existing dikes (up to 10,000 s.f.). Construction of new ponds or reservoirs (up to 20,000 s.f). Expansion of existing ponds or reservoirs (up to 20,000 s.f). Construction of tailwater recovery systems (up to 20,000 s.f). Construction of by-pass canals/channels (up to 20,000 s.f). Note that some of the project descriptions differ from those listed for exempt water-management projects. There are many limited projects in the Wetlands Protection Regulations, but this one is unique. All other limited projects are granted at the discretion of the Conservation Commission - if the Commission believes that it cannot impose conditions that are adequate to protect the wetlands, then it can deny the application. Here, by contrast, the Agriculture Regulations create a presumption in favor of the applicant: if there is a CP, then the limited project should be approved as submitted. The burden is not on the farmer to show that the project may safely proceed. Instead, the burden is on the Commission to overcome the presumption. 2-12 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Agriculture Exemption and Conservation Plans What does the Commission need to do if it wants to overcome the presumption? It must make a "clear showing" that one or more of the following is true: • The work described in the CP does not avoid impacts to wetland resource areas.-. • The work described in the CP does not minimize impacts to wetland resource areas when they are unavoidable. • Construction specifications and mitigation measures contained in the CP do not minimize impacts to wetland resource areas where impacts are unavoidable. • Construction specifications and mitigation measures contained in the CP do not adequately protect the interests of the Wetlands Protection Act. These showings are difficult to make when an SCS-certified Conservation Plan has been prepared. Even if the Conservation Commission does meet the burden of overcoming the presumption, it still must try to impose conditions on the work that will "restore the presumption." That is, the Conservation Commission must attempt to write conditions that will result in avoiding and minimizing wetlands impacts and protecting the interests of the Wetlands Protection Act. The Commission may deny the application outright only if such conditions cannot be determined. Here are other major points to keep in mind about the Conservation Plan limited project: • When a farmer files a Notice of Intent for projects in this category, all portions of the CP that relate to the limited project must be included. At a minimum, the NOI must describe the: oo Project. oo Number of square feet of each type of resource area that will be altered. oo Alternatives that were considered in order to avoid alterations of wetland resource areas. • Under Section 5(e) of the MOU between DEP and SCS, SCS agrees to honor Conservation Commission objections to wetland boundary delineations. (If there is a wetland boundary established by DEP through an appeal process, however, SCS will use that "final" delineation instead.) Otherwise, SCS need not modify the CP based on the Conservation Commission's comments, although SCS will carefully consider all comments. The project may not have any adverse effect on specified habitat sites of rare vertebrate or invertebrate species. There are procedures established under the Wetlands Protection Act (see 310 CMR 10.59) for identifying these impacts; under its MOU with DEP, SCS is required to account for this factor in preparing the CP. • There shall not be any filling or dredging of a Salt Marsh. Farming in Wetland Resource Areas (1/94) 2-13 Chapter Two: Working with the Regulations Agriculture Exemption and Conservation Plans Chart of Activities That May Require a Conservation Plan Note: BVW means Bordering Vegetated Wetland. LIAU means Land In Agricultural Use. BLSF means Bordering Land Subject to Flooding. C3 C rt U CO CO rt p. 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O r «) i — i X rt u "5. o. < o Z X rt U "o. < o z u X w y "o. a. < o Z u <^ ° u: > CQ **■ 3 en O s '^ O L. 2 « 8 > >- CQ «« <«' S ° °- o O o" A. V «o ^_ « 3 >- X <*-; 3 en O O k. ° Si o_ o T3 u A. ^ o co C 3 >- CQ o "3 « to « o" ft. CQ £ .3 m T3 ft! i i Q. E u ><; LU "rt" X <** I! E o U N ^ ft- x U -a 'E *> -E E = u ■3 .3 N . J - 45 h u ft. CQ ? X ■a 4S (0 -^ .3 <^> | 8K ^ ^2 T3 ft- ._ a. E u X CD « JZ If D. • — E a> i2 45 ^^ ft. x U d) ,c E e « 'J -E -H ft, J — 4* rl . — . •- zi s o ft. CQ ? X CO ^~. .3 m i 2*2 o < wajj go uotqonjqsuoQ SujiSTxg go uo]qonj3suoDaa 3DI1DBJJ ^BJni^noTjSy Suiqsxxg go uoTSuedxg 2-14 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Determining Jurisdiction Determining Jurisdiction Requests for Determination Reasons for Filing RDAs A Request for Determination of Applicability (RDA) is a procedure established under the Wetlands Protection Regulations at 310 CMR 10.05(3). It allows applicants to find out if they need to file a permit application (Notice of Intent); but applicants do not actually have to file the application to find out. Although it is an optional procedure, it can be a useful tool for avoiding problems even if it turns out that the proposed activity was exempt all along. Why would a farmer want to exercise the option of filing an RDA? If a farmer is not certain that the Agriculture Exemption applies, doing so might avoid unintentional violations due to applying or understanding the regulations incorrectly. It also could avoid possible confrontations with - and enforcement actions by - the Conservation Commission. A positive use of the RDA process is to establish a relationship of mutual cooperation with the Conservation Commission by keeping it informed of activities - even exempt activities - on the farm. And farmers can benefit from non-binding suggestions by Conservation Commissions that would be good for the environment and the farmer. Determinations can be requested for the following purposes: — • To see if the land - or which parts of the land - where work is proposed is subject to protection under the Wetlands Protection Act. This kind of a Determination, in turn, falls into two categories: oo Is the land a wetland resource area at all? If the land is not a wetland or part of a buffer zone, no Notice of Intent is required. oo Even if a wetland resource area is involved, is the land "in agricultural use"? If so, it may be exempt depending on the details of the proposed activity. • To see if the proposed activity is subject to regulation under the Wetlands Protection Act. Again, there are two categories for this kind of determination: oo Will the work remove, fill, dredge, or alter a wetland resource area or alter a Buffer Zone? If not, no Notice of Intent is required. oo Even if there is a regulated impact on a wetland resource area, does the proposed activity qualify as "normal maintenance and improvement"? If so, and the land is found to be "in agricultural use," then the Agriculture Exemption applies. In that case, no permit application would be required. This analysis is summarized in the Table on page 2-18 of this Guide. In theory, requesting a Determination is a simple process. There is a short (2 page) application form to complete and most of the questions are short and simple. There is no filing fee, although some Commissions may require the applicant to cover the cost of an optional public notice. The form is delivered (by hand or by certified mail) to the Conservation Commission, which has 21 days to makes its decision by issuing either: Farming in Wetland Resource Areas (1/94) 2-15 Chapter Two: Working with the Regulations Determining Jurisdiction • A positive Determination of Applicability, indicating that the area is subject to protection under the Wetlands Protection Act and the activity is subject to regulation under the Act. Therefore, the work may not proceed without the filing of a Notice of Intent. • A negative Determination of Applicability, indicating that either the area is not subject to protection under the Wetlands Protection Act or the activity is not subject to regulation under the Act, or both. Therefore, the work may proceed without the filing of a Notice of Intent. In the case of an exempt agricultural activity, a negative Determination of Applicability means that the proposed activity is not subject to review, provided that all the general and special conditions (see page 2-6 of this Guide) of the Agriculture Exemption are upheld. Sometimes, Conservation Commissions attach conditions to a negative Determination of Applicability. If conditions are attached to a negative Determination in the case of an exempt activity, the conditions may be used to describe the activity more fully in order to ensure consistency with the Agriculture Regulations. However, such conditions would not typically be designed to constrain an exempt activity and should not be used or seen as a tool to regulate. A Conservation Commission cannot require a farmer to submit an RDA as a condition of the farmer exercising the Agriculture Exemption, with the following qualification. DEP does not take the position that an RDA must be filed for a landowner to assert rights under an exemption to the Wetlands Protection Act. However, Conservation Commissions (and DEP) are allowed to bring enforcement actions against suspected violations of the Act. Improper use of the Agriculture Exemption - asserting that the exemption applies when it does not - is just such a violation. Commissions, as well as any member of the public, also may file an RDA for a project that either is proposed or underway as a means of establishing with certainty the permitting requirements (if any) for such activity. Further, Conservation Commissions and DEP do have the right to require proof that land truly is exempt because it is "in agricultural use." 310 CMR 1 0.04( Agriculture)(a). in its final sentence, allows them to "require appropriate documentation, such as a USDA Farm Plan or aerial photography, to demonstrate agricultural use." If a legitimate question arises about exempt activities, refusal to answer the question can lead to enforcement. Since a Conservation Commission is less likely to suspect a violation when it has had a chance to review the proposed work in advance, the best approach is to establish a cooperative and mutually informative relationship between farmers and Conservation Commissions. Filing an RDA puts on the record the status of the land as "in agricultural use" and the nature of the proposed activity as "normal maintenance or improvement." In that way, filing an RDA can be in a farmer's best interest. 2-16 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Determining Jurisdiction Delineating Bordering Vegetated Wetlands on Farms Many provisions of the new regulations contain important limitations on the work that can be done in a Bordering Vegetated Wetland (BVW). These provisions include the following: • 310 CMR 1 0.04(Agriculture)(b)( 1 ): exempt normal maintenance practices do not include drainage in a BVW. 310 CMR 10.04(Agncuiture)(b)(5): management of field edges as an exempt normal maintenance practice does not include conversion of BVW into cropland. 310 CMR 1 0.04( Agriculture)(c)( 1 )(d): squaring off of fields and bogs as an exempt normal improvement practice does not include alteration of a BVW. 310 CMR 1 0.04( Agriculture)(c)( 1 )(f): changing commodities as an exempt normal improvement practice does not include filling of BVW. • 310 CMR 10.04(A£ocuiture)(c)(2)(a, d, and f): alteration of BVW is subject to square-foot limits for exempt water-management projects done under a Conservation Plan. • 310 CMR 10.06(g)(2): storm debris may not be placed in a BVW following an emergency. • 310 CMR 10.06(g)(3): in developing an emergency agricultural water source, impacts to BVW shall be minimized and in any case shall not exceed 2,000 square feet. • 310 CMR 10.53(5)(e): alteration of BVW is subject to square-foot limits for non-exempt water-management projects done under a Conservation Plan. Ordinarily, DEP and Conservation Commissions use a standard methodology for delineating wetland boundaries; and SCS personnel have received DEP training in this methodology. Primarily, it relies on vegetation to address the matter of boundary delineation - when certain plant species associated with wetlands predominate, then a BVW is present. If a site has been disturbed, however, and the vegetation has been destroyed by farming or other operations, how can the boundary of the BVW be determined? The absence of wetlands vegetation on a disturbed site does not prevent the delineation of a wetland boundary. If the disturbed site is part of a larger, undisturbed wetland, or if there is other evidence (such as photos or maps) that the site historically was or appeared to be a wetland, then criteria other than vegetation can be employed. The key is to look for hydrologic conditions - saturation or inundation of the soil - sufficient to support wetland plant species. For example, standing water, groundwater within 18" of the surface, and the presence of hydric soils all indicate conditions that would support a wetland plant community if one were allowed to develop. Farming in Wetland Resource Areas (1/94) 2-17 Chapter Two: Working with the Regulations Determining Jurisdiction Table for Determining Jurisdiction Note: Under "Outcome," "Exempt" means the exemption applies and no Notice of Intent ("NOI") is required; "No NOI" means there is no Wetlands Protection Act jurisdiction and no NOI is required; and "File" means there is jurisdiction under the Wetlands Protection Act, the exemption does not apply, and an NOI must be filed. Note: Under "Is the Land in Ag Use?" and "Is it Normal Maintenance/Improvement?" it is assumed that no exemptions other than the agricultural exemption apply. Note: "Is the Work Subject to Regulation?" means "Is the work subject to regulation in the absence of any claim of an exemption?" Is the Land Subject to Protection? Is the Land in Ag Use? Is the Work Subject to Regulation? Is it Normal Maintenance/ Improvement? Outcome Yes Yes Yes Yes Exempt No No No No No NOI Yes Yes Yes No File Yes Yes No Yes No NOI No Yes Yes Yes No NOI Yes Yes No No No NOI No Yes Yes No No NOI Yes No Yes Yes File Yes No Yes No File No Yes No Yes No NOI Yes No No No No NOI No Yes No No No NOI No No Yes No No NOI 2-18 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Emergency Provision The Emergency Provision [310 CMR 10.06(6)] Specified Emergency Activities Written Notice Required "Normal maintenance or improvement of land in agricultural use" is exempt from the Wetlands Protection Act; such work may proceed without having to file a permit application (Notice of Intent). Work that does not meet the definition of normal maintenance or improvement of land in agricultural use still may not need an NOI if it qualifies as an agricultural emergency. The emergency provisions are found in a different section from most of the regulations concerning the Agriculture Exemption. Unlike the definitions of "normal maintenance or improvement of land in agricultural use," which are found at 310 CMR 10.04( Agriculture), the emergency provisions are found at 310 CMR 10.06(6). Only specified emergency activities are allowed under this section of the Wetlands Protection Regulations. Each of these activities has detailed conditions. The activities and their respective conditions are described at 310 CMR 10.06(g)(l through 3). Note that some of the conditions include square footage limitations for alterations of stream banks and alterations to Bordering Vegetated Wetlands. The specified activities are: • Eliminating an imminent threat to land in agricultural use [310 CMR 10.06(6)(1)]. • Restoring land in agricultural use that has been damaged due to a storm or other sudden, unforeseen event [310 CMR 10.06(6)(2)]. • Providing an emergency agricultural water source when the existing agricultural water source suddenly and unforeseeably has been rendered unusable or unavailable [310 CMR 10.06(6)(3)]. These categories have been worded carefully and each and every condition must be met if the work is to qualify as an "agricultural emergency." For example, a farmer might want to create an emergency agricultural water source because the old source has dried up. But suppose that the old source had been drying up for years, becoming progressively less productive. This work does not qualify as an agricultural emergency because 310 CMR 10.06(6)(3) requires the existing water source to become unavailable suddenly and unforeseeably. not gradually and predictably. If land in agricultural use has been damaged, it may be restored as an emergency project if the damage was caused by a storm or other sudden, unforeseen event. It is not possible to anticipate every sudden or unforeseen event here, but a flood can stand as one example. Other examples might be a plane crash, a fuel or chemical spill, or a fire. Even though a Notice of Intent is not required for emergency activities, the farmer still must give written notice of the work to the Conservation Commission and to DEP. The regulations [at 310 CMR 10.06(6)(b)] specify the contents of the notice. The farmer has three days from beginning the work to give this notice - or three days from the end of the emergency, if that would be earlier. The Conservation Commission may conduct a site visit to verify that there really is an emergency as defined in the Agriculture Regulations. Farming in Wetland Resource Areas (1/94) 2-19 Chapter Two: Working with the Regulations Emergency Provision Additionally: • If the emergency is caused by a storm, the work must begin within 30 days after the storm event. • The work must be completed within 30 days after it has begun, unless the Commissioner of DEP gives a written extension. • No work may take place within an estimated rare species habitat. These habitat areas are shown on maps published by the Natural Heritage and Endangered Species Program of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement. • There shall not be any filling or dredging of a Salt Marsh. 2-20 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations Enforcement Enforcement Every Conservation Commission recognizes that enforcement is necessary and crucial to effective administration of the Wetlands Protection Act. Enforcement techniques are available to stop illegal activity, force a Notice of Intent to be filed, control future work, restore illegally altered areas, and punish and deter violators. With respect to agricultural activities and the Agriculture Exemption, a farmer may be in violation of the Wetlands Protection Act by performing a non-exempt activity without a permit in an area that is under jurisdiction. Such activities include those that: Are neither maintenance nor improvement. Are neither "normal" nor "necessary and related" (for example, out of scale with the enterprise or not related to current production). Take place on land that is not exempt because it is not "in agricultural use." Do not conform to specific conditions (see page 2-6 of this Guide). Do not conform to the design and mitigation requirements of a Conservation Plan. Violate any conditions set forth in an Order of Conditions. The following documents explain how to determine a violation and pursue enforcement. Each is available in most Conservation Commission offices. • Massachusetts Association of Conservation Commissions, "Environmental Handbook for Massachusetts Conservation Commissioners" (1991). • Massachusetts Audubon Society, "A Guide to Understanding and Administering the Wetlands Protection Act" (1992). • Commonwealth of Massachusetts, Department of Environmental Protection, "An Enforcement Manual for Wetlands Protection in Massachusetts" (1994 update). If a violation is reported or suspected, the Commission must inspect the site to determine if the Act in fact has been violated and to consider appropriate remedies. In many cases, but not all, the Conservation Commission must receive the landowner's permission to enter private property; for some excellent treatments of this subject, see the reference resources listed above. Sometimes "informal" enforcement is sufficient and effective. Conservation Commissions that attempt to resolve a problem with a violator through a visit, phone call, or letter often clear up misunderstandings and achieve compliance or remediation without resorting to formal enforcement measures. This approach is particularly valuable in agriculture, aquaculture, and forestry projects, where the parties may be unclear about a particular practice or the parameters of the Agriculture Exemption. One goal of enforcement activities is to achieve compliance with the law, thereby protecting wetland resource values. Deterrence is another important goal of Farming in Wetland Resource Areas (1/94) 2-21 Chapter Two: Working with the Regulations Enforcement enforcement. A problem solving approach often is productive, involving the farmer or forester, Conservation Commission staff and members, and other personnel such as the District Forester or District Conservationist. Whatever the strategy and the course of negotiations, the Commission should provide specific instructions for compliance and should document all agreements. 2-22 Farming in Wetland Resource Areas (1/94) Chapter Two: Working with the Regulations 401 Water Quality Certification Program Section 401 Water Quality Certification Program The Wetlands Protection Act is a state law. It was passed by the Massachusetts Legislature and is carried out by a state agency (DEP) through local Conservation Commissions. The federal government also has laws that protect wetlands. The best known of these laws is the Clean Water Act. Section 404 of the Clean Water Act describes the areas and activities over which it has jurisdiction, as well as certain exceptions. In general, this federal law is administered by the Environmental Protection Agency (EPA) and the Army Corps of Engineers, both of which are agencies of the federal government. However, there is one section of the Clean Water Act that is carried out at the state level. This is Section 401. In areas where there is federal jurisdiction - federal and state jurisdiction are not quite identical - issuance of a federal permit for "discharges" into wetlands first requires the state to certify that the proposed activity will maintain "water quality standards" and comply with other appropriate requirements of state law. The state's Section 401 program for projects affecting wetlands is carried out by DEP's Division of Wetlands and Waterways. Generally, if work is exempt under the Massachusetts Wetlands Protection Act, then it will not require a Section 401 Water Quality Certification from DEP. If there is any question about whether a project may require a federal permit, the landowner should contact the Army Corps of Engineers (see Resources and References in Appendix A of this Guide) for more information. Work that is not exempt under the Massachusetts Wetlands Protection Act may require a Section 401 Water Quality Certification. DEP has issued an "Interim Guidance" detailing the kinds of projects for which review under Section 401 is required. The Interim Guidance is in effect until DEP adopts permanent regulations on this subject. Contact DEP (see Resources and References in Appendix A) for copies of the Interim Guidance and other explanatory materials. Any farmer proposing to do work that is not exempt under the Wetlands Protection Act should consult these materials. To summarize: • The Division of Wetlands and Waterways administers Section 401 of the federal Clean Water Act by issuing "Section 401 Water Quality Certifications" for projects that comply with the Interim Guidance. • Work that is exempt under the Wetlands Protection Act and its regulations generally does not require state review or certification under Section 401. • If there is any question about whether the proposed activity is exempt from Section 404 of the federal Clean Water Act, landowners should consult with the United States Army Corps of Engineers. Farming in Wetland Resource Areas (1/94) 2-23 Chapter Three: The Soil Conservation Service and Conservation Planning ■•■•■■■;■■■• :rt£ij , 1993, by and between the Commonwealth of Massachusetts, Department of Environmental Protection, hereinafter known as DEP, and the United States Department of Agriculture, hereinafter known as the Service, in cooperation with Massachusetts Conservation Districts and acting under the authority of the Soil Conservation and Domestic Allotment Act, as amended (U.S.C. 590 a through f ) . DEP and the Service deem it mutually advantageous to cooperate in the undertaking describe in Paragraph 2 of this MOU and hereby agree as follows: 2 . Purpose DEP has promulgated regulations under the Massachusetts Wetlands Protection Act (General Laws Chapter 131, §40) ("the Act") that concern agricultural practices. Under these regulations, certain farming activities in wetlands may be exempt from the permitting provisions of the Act if those activities have been designed to meet the standards of the Service. These are referred to as "exempt activities." Certain other activities in wetlands may be eligible for a special type of permit known as a "limited project" under the Wetlands Regulations -at 310 CMR 10.00 et seq. if they have been designed to meet the standards of the Service. The purpose of this MOU is to establish a basis for cooperation between the Service • and DEP by which the Service will work with Massachusetts farmers to plan resource management systems and design practices involving wetlands that give appropriate protection for wetlands. In turn, based on these environmental safeguards, DEP will be able to maintain regulations that meet the goals of the Act while minimizing the regulatory burden on farmers. 3 . Scope This MOU applies to the planning, design, construction, reconstruction, and/or expansion of the following water management projects undertaken for the support of existing agricultural production within a Bordering Vegetated Wetland ("BVW" ) as defined at 310 CMR 10.55(2) : a. existing dikes; b. new or existing ponds and reservoirs; c. tailwater recovery systems; and d. by-pass canals/channels. The projects described in this Paragraph will be referred to in this MOU as "covered projects." mou sign.scs A-26 Farming in Wetland Resource Areas (1/94) Appendix C Memorandum of Understanding Memorandum of Understanding Page 2 4 . DEP's Agreements DEP agrees to: a. furnish to the Service, as they become available to DEP, DEP wetlands maps and the most recent Massachusetts Natural Heritage and Endangered Species Program (NHESP) Estimated Habitat Maps; b. furnish training to the Service's field staff on wetland delineation according to the Wetlands Regulations; c. furnish DEP regional Wetlands staff to the Service for consultation with the Service's staff on project planning; d. encourage local Conservation Commissions to participate early in the planning process; and e. encourage NHESP staff to provide input within ten working days of receiving requests for input from the Service about projects that fall within estimated rare species habitat. 5 . The Service's Agreements The Service agrees to: a. coordinate an analysis of each covered project and assure the following: i. the project is needed to support existing agricultural activities (the definition of "land in agricultural use" found at 310 CMR 10.04(5) will govern this determination) ; ii. no reasonably available or feasible alternative site is available for the proposed activity that will avoid alterations to a BVW; iii. any resulting alterations of BVW will be the minimum amount required for. the proposed work; and iv. any limits for alterations of BVW, as established in the Wetlands Regulations, are adhered to for any covered project that is intended to qualify under the Wetlands Regulations either as an "exempt activity" or as a "limited project"; & b. work with farmers to plan resource management systems and design covered projects according to the Considerations for Water Quantity and Quality contained in its SCS Field Office Technical Guide Standards and Specifications (as amended and updated from time to time) . The design for any covered project will be incorporated into the farm Conservation Plan (CP) for that property. The Service will incorporate into a CP only projects that meet the requirements of Paragraph 5(a) (i through iv, inclusive), above and of Paragraph 5(c) (i through iii, inclusive), below; c. include in Conservation Plans: i. a delineation on a map of the boundaries of all wetlands which fall within the jurisdiction of the Act; ii. a description of all proposed activities affecting wetland resource areas, including an estimate of the amount of the wetland resource areas affected; and mou sign. scs Farming in Wetland Resource Areas (1/94) A-27 Appendix C Memorandum of Understanding Memorandum of Understanding Page 3 iii. a description of measures that will be taken to minimize impacts to BVW, such as erosion control measures, construction techniques, and sequencing; d. review, when preparing CPs, the most recent Estimated Habitat Map (the "Habitat Maps") , if any, supplied to it by DEP or NHESP of state-listed vertebrate and invertebrate animal species occurrences in wetlands which are subject to the jurisdiction of the Act. If a covered project will alter wetlands within any area delineated on the Habitat Maps, then the Service will consult with NHESP on ways to design the covered project: so as to avoid any short or long term adverse effects on the actual habitat of the local population of any state-listed species. The recommendations made by NHESP shall be incorporated into the CP; e. obtain input from the Conservation Commissions regarding wetland delineations. The Wetlands Regulations require the farmer to submit the CP to the local Conservation Commission for review. Based on its review, the Commission may make comments on the CP. The Service agrees to revise its wetland boundary delineations to conform to any written comments of the Commission, except insofar as those comments are modified by an applicable final wetlands boundary delineation pursuant to the Act, in which case the Service shall conform with that boundary delineation. The Service may consider, but need not adopt, any comments by the Commission on matters other than wetland boundary delineations; and f . compile and maintain a comprehensive list of all CPs that are developed where BVW is proposed to be altered. This list shall contain the project- location (city or town) , project type, and amount of BVW that is proposed to be altered. Upon request, the Service will provide DEP with a copy of the most recent CP information. 6. Mutual Agreements It is mutually agreed- that: a. it is the intent of each party to this MOU to fulfill its obligations under this MOU. However, commitments cannot be made beyond the period for which funds have been appropriated. In the event funds from which each party may fulfill its obligations are not appropriated, this MOU will automatically terminate; b. this MOU may be amended as agreed in writing by the parties hereto with the advice and consultation of the Farmland Advisory Committee established pursuant to the Commonwealth of Massachusetts, Acts of 1991, Chapter 141; c. this MOU may be terminated by either party hereto by written notice to the other party at least thirty (3 0) days in advance of the effective date of the termination; d. the initial date of this MOU shall be ef f ective _ on the date appearing in the first paragraph and shall continue in mou sign.scs A-28 Farming in Wetland Resource Areas (1/94) Appendix C Memorandum of Understanding Memorandum of Understanding Page 4 effect through September 30, 199 3. It may be renewed for subsequent federal fiscal years by exchange of correspondence between the parties; e. no Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share or part of this MOU, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this MOU if made with a corporation for its general benefit; f . activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987 (Public Law 100-259) , and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendment of 1972, and the Age Discrimination Act of 1975. Activities conducted under this MOU also shall be in accordance with regulations of the Secretary of Agriculture (7 CFR-15, Subparts A and B) which provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or handicap be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance from the Department of Agriculture or any agency thereof. IN WITNESS thereof, the agreed-to -parties have executed this agreement. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT J2£ ENVIRONMENTAL PROTECTION By: Title: ( j&mm ^ht&r&S Date: V^/fJ UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE By: Title: State Conservationist Date: V<&*/93 mou sign.scs Farminq in Wetland Resource Areas (1/94) A-29 Appendix D Chapter 141 of the Acts of 1991 D. Chapter 141 of the Acts of 1991 (Establishing the Farmland Advisory Committee) AN ACT TO ESTABLISH A UNIFORM DEFINITION OF NORMAL MAINTENANCE OR IMPROVEMENT OF LAND IN AGRICULTURAL USE. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: SECTION 1. Whereas: There are nearly 700,000 acres of land in Massachusetts which is owned and managed by farmers. The continued urbanization of this state is making this land more and more important as open space, wildlife habitat, groundwater recharge zones and as a buffer to the environmental impacts associated with increases in population density, and; Whereas: Farmers across the state are faced with a growing morass of regulation and restriction which is increasing the cost of farming and jeopardizing the future economic viability of our farms. This, in turn, jeopardizes the open space which is supported by the agricultural operation; and; Whereas: Although the Wetlands Protection Act exempts "work performed for normal maintenance or improvement of land in agricultural use" many routine and long standing farm operations are being challenged by local and state agencies, creating confusion, frustration and in some cases, costly delays. The intent of this Act is to establish a uniform definition to assist the agricultural community in complying with the Wetlands Protection Act and reducing the current uncertainty that exists; SECTION 2. Section 40 of Chapter 131 of the General Laws is hereby amended by inserting, after the eighteenth (18) paragraph, the following paragraph: - Within one hundred and twenty days of the effective date of this act, the department, upon the advice and consent of the Commissioner of the Department of Food and Agriculture, shall promulgate rules and regulations pursuant to this section which shall establish definitions for the term "normal maintenance or improvement of land in agricultural, or in aquacultural use", for each agricultural commodity or, where appropriate because of similarities in cultural practices, groups of commodities in the Commonwealth. The department shall create a farmland advisory board to be appointed by the commissioner consisting of five persons one a member of the cooperative extension service, one a member of the USDA soil conservation service, one a member of a municipal conservation commission who has demonstrated expertise in agricultural issues, and two commercial farmers with expertise in different agricultural commodities to assist the department in the drafting of rules and regulations pursuant to this paragraph. SECTION 3. Chapter 131 of the General Laws is hereby further amended by inserting after Section 40 A, the following section: - Section 40B. The farmland advisory committee established in paragraph nineteen of section 40 of this chapter shall meet quarterly and at the call of the commissioner or upon written request of any two members. The committee is charged with advising the commissioner relative to the definitions of "normal maintenance or improvement of land in agricultural or aquacultural use" and other issues relating to agriculture including but not limited to, consistency in federal and state statutes, rules, and regulations pursuant to agricultural activities governed by Chapter 131, Section 40 of the General Laws and issues affecting agriculture pursuant to Chapter 21G of the General Laws. The farmland advisory committee, in conjunction with the department, shall make an annual report to the committee on natural resources and agriculture as to their activities under this section. SECTION 4. The department of environmental quality engineering shall submit any rules and regulations promulgated under the provisions of this act to the committee on natural resources and agriculture for its review within thirty days prior to the effective date of said regulations. A-30 Farming in Wetland Resource Areas (1/94) Appendix E SCS Technical Guide Standards: A Sample E. SCS Technical Guide Standards: A Sample The SCS conservation practice (BMP) standard for irrigation tailwater recovery system is included as a sample in this section. This standard is part of the SCS Field Office Technical Guide (FOTG) Section IV. Section IV also includes many other conservation practice standards that often are used in planning resource management systems with farmers and other land users. The conservation practice standards periodically are reviewed and brought up to date as described in the section "The Field Office Technical Guide, see page 3-4 of this Guide." The FOTG is located in each SCS field office in Massachusetts. The office locations are listed in Appendix A of this Guide. Farming in Wetland Resource Areas (1/94) A-31 Appendix E SCS Technical Guide Standards: A Sample USDA-SCS Amherst, MA Field Office Technical Guide Section IV Irrigation System, Tailwater Recovery -447 STANDARD IRRIGATION SYSTEM, TAILWATER RECOVERY (No.) Definition A facility to collect, store, and transport irrigation tailwater for reuse in a farm irrigation distribution system. Scope This standard applies to the planning and functional design of irrigation tailwater recovery systems, including pickup ditches, sunps, pits, and pipelines. It does not apply to detailed design criteria or construction specifications for individual structures or conponents of the recovery system. Purpose To conserve farm irrigation water supplies and water quality by collecting the water that runs off the field surface for reuse on the farm. Conditions Where Practice Applies Tailwater recovery systems are suitable for use on sloping lands that are served by a properly designed and installed surface irrigation system to facilitate the conservation use of soil and water resources. They are also suitable for use in areas where recoverable irrigation runoff flows or can be anticipated under the management practices used or expected to be used. Planning Considerations for Water Quantity and Quality QUANTITY 1. Effects on the water budget, especially on volumes and rates of runoff, infiltration, evaporation, transpiration, and deep percolation, and groundwater recharge. 2. Effects on downstream flows or aquifers that would affect other water uses or users. 3. Effects on the volume of downstream flow that could cause undesirable environmental, social, or economic effects 4. Potential use for irrigation water management. QUALITY 1. Effects on the movement of sediment and soluble and sediment-attached substances on downstream water carried by runoff. MLRA-A11 1/89 A-V Farmina in Wetland Resource Areas (1/94) Appendix E SCS Technical Guide Standards: A Sample USDA-SCS Amherst, MA Field Office Technical Guide Section IV Irrigation System, Tailwater Recovery - 447 2. Effects of nutrients and pesticides on surface and groundwater quality. 3. Effects on the movement of dissolved substances to groundwater. 4. Effects on wetlands or water-related wildlife habitats. 5. Effects on the visual quality of water resources. Design Criteria COLLECTION FACILITIES. Facilities for the collection of irrigation tailwater are an integral part of irrigation systems, surface and subsurface (443). SUMP OR PIT. A sump or pit is needed to store the collected tailwater until it is redistributed in the farm irrigation system. The desired control of water at the point where the tailwater is returned to the irrigation system shall be considered in determining the size of the sump. Small sumps with frequently cycling pumping plants may be used where the tailwater discharges into an irrigation regulation reservoir or into a pipeline with the flow controlled by a float valve. However, if the irrigation distribution system does not include facilities for regulating fluctuating flows, tailwater sumps shall be made large enough to provide the regulation needed to permit efficient use of the water. Sumps must be equipped with inlets designed to protect the side slopes and the collection facilities from erosion. A dike or ditch shall be provided if necessary to limit the entrance of surface water to the designed inlet. Sediment traps shall be installed if needed. Sumps or pits shall be designed and constructed according to applicable SCS standards and specifications. c, RETURN FACILITIES. All tailwater recovery systems require facilities of some kind to convey the tailwater from the storage sump to the point of reentry into the farm irrigation system. These facilities may consist of a pump and pipeline to return the water to the upper end of the field, or they may consist of a gravity outlet having a ditch or pipeline to convey the water to a lower section of the farm irrigation system. The capacity of return facilities shall be determined by an analysis of expected runoff rates, the proposed sump storage capacity, and the anticipated use to be made of the tailwater. If the return flow is used as an independent irrigation stream rather than as a supplement to the primary irrigation water supply, the rate of flow must be adequate for the methods of water application employed. MLRA-A11 1/89 Farmina in Wetland Resource Areas M/94) A-33 Appendix E SCS Technical Guide Standards: A Sample • USDA-SCS Amherst, MA Field Office Technical Guide Section IV Irrigation System, Tailwater Recovery - 447 Pipelines, lined or unlined ditches, and pumping plants used in return facilities shall be designed and constructed according to applicable SCS standards and specifications. Plans and Specifications Plans and specifications for irrigation tailwater recovery systems shall be in keeping with this standard and shall describe the requirements for applying the practice to achieve its intended purpose. ♦ C I A 1A Farmina in Wetland Resource Areas (1/94) Appendix F SCS Farm Conservation Plan: A Sample F. SCS Farm Conservation Plan: A Sample SCS-WA-261 4*2 & CONSERVATION PLAN UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE cooperating with MASSACHUSETTS Conservation District q^p, WETLANDS PROTECTION ACT-EXAMPLE Plan No. WPA-1 Operator MA R. RIGHT Counly Slate Asaittw) Br Irvtat.nn MASSACHUSETTS Date 6/93 Scale 1 ' =450 ' approx . Acres Approximate Approximate Photo No E&B3SXE&D OTHERLAND Planned Irrigation Pond •Access Rd. — Wetland Boundary Field Boundary Irriaation Pipeline (planned Approx. Scale: 1" = 450' Farming in Wetland Resource Areas (1/94) A-35 Appendix F SCS Farm Conservation Plan: A Sample This plan was prepared to serve as a requirement under the "Conservation Plan Limited Project" permit category of the Massachusetts Wetlands Protection Act. The plan guides the establishment of a new Irrigation Pond within an area of Bordering Vegetated Wetland (BVW) . The Pond will support Cropland Field No. 3 Irrigated Vegetables, 5 acres. The pond construction will affect approximately 6500 S.F. of BVW. The pond is a dugout-type pond and all spoil material from the project will be removed and disposed of within upland. The landowner's objective is to raise high value vegetables and small fruits and to provide adequate water for irrigation and frost protection needs of the crops. RECORD OF COOPERATORS DECISIONS (Example Conservation Plan) FIELD PLANNED LAND USE AND TREATMENT page 1 of 3 NO. AMT. YR. 3 5 AC. CROPLAND (Irrigated Vegetables) 3 5 AC. Conservation Cropping Sequence This field will be used to raise a variety of vegetables and some small fruits in rotation with a summer green manure crop (one-fifth of area each year) . 3 5 ac. Cover and Green Manure Crop A fall cover crop of 112 pounds per acre of rye grain will be planted by September 3 0th and the cover will be maintained through the spring until preparation of the soil for the next crop. A summer green manure crop of buckwheat will be planted at a rate of 75 pounds per acre by June 15th. The cover crops will control erosion, improve soil tilth, take up residual nutrients, add organic matter and improve wildlife habitat. 3 1 system Irrigation System. Sprinkler A 5 ac. Sprinkler Irrigation System will be installed to efficiently and uniformly apply irrigation water to maintain adequate soil moisture for optimum plant growth without causing excessive water loss, erosion or reduced water quality. The system will be installed according to SCS design standards. a.v. Farmina in Wetland Resource Areas (1/94) Appendix F SCS Farm Conservation Plan: A Sample FIELD PLANNED LAND USE AND TREATMENT page 2 of 3 NO. AMT. YR. 3 600 ft. Irrigation Water Conveyance. Pipeline Irrigation water will be conveyed by means of a buried underground plastic mainline to the area to be irrigated. The pipeline installation will be done according to SCS design standards. 3 5 AC. Irrigation Water Management The rate, amount and timing of irrigation water will be done in accordance with SCS standards and specifications. See Irrigation Water Management Plan. 3 5 AC. Nutrient Management Crop nutrient inputs will be applied in accordance with annual soil tests, expected crop yields and current Cooperative Extension recommendations. Stored manure and other organic waste will be tested for nutrient content and applied according to nutrient management strategy. 3 5 AC. Pest Management Pests will be managed in accordance with Integrated Pest Management specifications. A pest management strategy will be developed based upon the crop and target pests, in cooperation with Cooperative Extension. 6 OTHERLAND (Wetland areas adjacent to Lampson Brook) * 6 1 No. Irrigation Pond An excavated pond will be constructed in the area shown on the plan map, according to design standards and specification provided by the Soil Conservation Service. See SCS design for specifics. 6 0.1 ac. Critical Area Planting Bare pond side slopes and other disturbed areas will be stabilized by seeding according to specification on pond design. ) •5-7 Farming in Wetland Resource Areas (1/94) A-37 Appendix F SCS Farm Conservation Plan: A Sample FIELD PLANNED LAND USE AND TREATMENT page 3 of 3 NO. AMT. YR. 5 HAYLAND 5 0.5 AC. Critical Area Planting Spoil material resulting from the pond excavation, will be spread within upland hayland areas ( as shown on the plan map and as staked in the field) and stabilized with a planting of domestic grass hay mix. Specific seed mix, lime and fertilizer recommedations will be based on test of the spoil material. i t A-38 Farming in Wetland Resource Areas (1/94) Appendix F SCS Farm Conservation Plan: A Sample U. S . Department Of Agriculture Soil Conservation Service MA-ECS-3 5/93 ENVIRONMENTAL EVALUATION DATA SHEET Project/Landowner Name EXAMPLE Decisionmaker Proposed Action TO RAISE HIGH VALUE VEGETABLES AND SMALL FRUITS IN A FIELD FORMERLY USED TO PRODUCE CORN SILAGE. TO ESTABLISH AN IRRIGATION POND WITHIN A BORDERING VEGETATED WETLAND AREA... FIELD 6. Alternative Being ConsideredCONSEVATION CROPPING SEQUENCE, IRRIGATION SYSTEM, IRRIGATION WATER MANAGEMENT, NUTRIENT MANAGEMENT, PEST MANAGEMENT Evaluator R. RIGHT Field Office MASSACHUSETTS Date6/93 Environmental Factors Soil Resources Important Farmland Erosion and Sedimentation_ Effect on Soil Water Resources Wetlands Water Quality Water Quantity^ Air Resources Air Quality Notes Soils are Prime ConservationMot . Svst . plann* CCS includes Cover /Grron Manure Irrig. Res. option in wetland will affect 6,500 sq.ft. of type Plant Resources Threatened/Rare or Endangered Species Plant Health and Vigor_ Animal Resources Threatened/Rare or Endangered Species Fish and Wildlife Habitat Other Flood Plain Management Archeological/Historical Site_ Visual Resources ] Changed Land Use Nutrient/fffsr Msr. Elaaaad Trrip. Wal-pr Mof. PlannpH 0 0 0 0 No known TRnrF snpn>s in area Irrig. Water Met. Nurr./Pesr M?r No Known TRor f, nrps,pnr *n PiTpa Mo fjJJ mannpd.An cpn-M rp^nv. n rut Vfc. Hkc^.h' !"-j,ooo \ ^ *0 X xoa mcxv xcssxperi : 1. (be poo* shall M uwuucMd to taa liiu. erodes and •Imtlm aa etaited la ta» f laid ana aa aaovn oa tha ■umuuflUca dravinoe aa nearly aa eaa aa touma toy aatllful operation of tea excavation equipment. 2. arose aad etaar debris vital* taa alt* aaall ba i—imii tra tee eite aod properly diepnoort or. 1. Spall eanavated free taa pond cenecrnetloa aaall ba r— in m free taa alta and dlapoaad ef vltbla upland araa Identified on taa plan vim and aa atakad la taa (laid. Taa •pell will ba leveled sufficiently tor proper sasrtlne and —boorynont bavins, a* •poll aaall ba aiepoeed ef wltaln vetland ansa. 4. t< pus ail alda alepa surface* of taa pond will ba stemmed ay mllw seed Canary Graaa at rata of 1 pound par 1,000 l.r. anc Badtop at rata ef o.i pound par 1,000 I. tha baa* far taa Tone location* aaall be i»e layer of asaBMOtad aaarsa envoi to provide a flra foundation, tap •ell and any orsanlc aatarlal aaall ba r— ma prior to -"*— "1-**T taa eraval baaa. « cable yarda of eravel ara 1. axuavetlon 009 C.I, 2 . Clear ine and eraabln9 . . o . is ecrea 1. coarse eraval f c.Y. A / \ LT t.900 l.r. (.015 ae.) OP — »»■» btia is uma n nil neuter- V) %>_^H / / Landowner is responsible for verifying existence end location of underground utilities end is liable for any damage by construction activity . CALL MASS. DIG SAFE: 1-800-322-4844 \ \ / \\ \ Prepared by Checked by_^ Approved by_ Contractor AS BUILT Date completed tfttT*6*Ale IBBIGSXIOI FOND DESIGN A 0. a DCAZFMENT OP AGBICULT i> ffflL CQNSBVATION SERVICE ^Jkt l>& iA '*L *&& &l\ A-42 Farming in Wetland Resource Areas (1/94) Appendix G Monitoring Committee Information Collection Form G. Monitoring Committee Information Collection Form Agriculture Regulations Monitoring Form Use this form to keep track of your encounters with the 1993 amendments to the Massachusetts Wetlands Protection Act Regulations regarding agriculture. Feel free to make copies and share them with others. Submit this form to: Commonwealth of Massachusetts Department of Environmental Protection Division of Wetlands and Waterways One Winter Street Boston, MA 02108 Attention: Agriculture Regulations Monitoring Committee The Department of Food and Agriculture and the Department of Environmental Protection thank you for your efforts. 1. Your Name, Address, and Telephone Number (optional) Giving us this information will allow us to contact you for more information if we have questions. Name Address Title (if applicable). Telephone: home = ( ) ; work = { J_ 2. Location of the Activity Please indicate the city or town where the work took place or whose Conservation Commission acted or failed to act, and the address or location of the property in question. City/Town Address/Location 3. Regulation Section Involved (optional) If you believe that you know the section of the Wetlands Protection Regulations that affects this case, please note it here. 310 CMR 10. 4. Description of the Situation Please describe on the other side the situation that you wish to report. It could be a problem that the new Regulations fail to address or address unsuccessfully; it could be a case where the new Regulations are an improvement over the old Regulations; it could be a situation where the Regulations were not applied correctly; etc. Farming in Wetland Resource Areas (1/94) A-43 Appendix G Monitoring Committee Information Collection Form (4. Description of the Situation) (continued) < 5. Other Comments Please use this space to make any other comments about this situation in particular or the new Agriculture Regulations in general. t « Thank you for your help! A-44 Farming in Wetland Resource Areas (1/94) Appendix H Case Studies H. Case Studies Farming and Wetlands : Case Studies The following examples highlight agricultural work (maintenance and improvement activities) in wetland resource areas. These are cases designed to help the reader understand how the agricultural revisions apply to the Wetlands Protection Act Regulations. These examples do not reflect all the possible applicable farming situations that may arise. Farming in Wetland Resource Areas (1/94) A-45 Appendix H Case Studies Case Study # 1 Situation: A functioning drainage ditch installed in the mid-1960s to drain a portion of a cropfield has filled in with sediment and vegetation. The field has never been abandoned. The farmer wishes to do work on the ditch to bring it back to its original shape, depth and grade. How does this situation relate to the Wetlands Protection Act? Q : Wh%/ is the activity ? A: The activity is maintaining an existing drainage ditch. Q: Is the project proposed on land in agricultural use (LI A U) ? A: Yes, because maintaining an existing drainage ditch is necessary and related to production of the cropfield so it is therefore L1AU. Q : Wha t happens ? A : The farmer can go ahead and clean the ditch provided that it does not exceed the scope of the original ditch and that the work is done in a manner that prevents sedimentation of adjacent wetland resource areas. Discussion Points: 1 . The farmer is encouraged to contact SCS for help to ensure that the ditch is not expanded and to avoid erosion and sedimentation, during the work. Notifying the conservation commission is m not required, however it is recommended. A-46 Farming in Wetland Resource Areas (1/94) Appendix H Case Studies Case Study #1 A (cranberries) >+- ■+■ <*> ♦ *♦» Not to scale Situation: A grower has an active cranberry bog that is out of level, and plans to install an additional dike and water control structure in an effort to help conserve water. The plans also include regrading and replanting the cranberry bed. How does this situation relate to the Wetlands Protection Act? Q: What is the Activity ? A : The activities are the installation of a new dike and reshaping and replanting of cranberry bed . Q : Are the projects proposed on land in agricultural use (LI A U) ? A: Yes Q: Are the dike/water control structure, regrading and replanting exempt activities? A: Yes, as long as they occur within active cranberry beds [10.04 (c)(1)(b)] and [10.04 (b)(13)(d)]. Q: What happens? A: The grower can go ahead and perform these improvements as long as they are done in a manner that prevent erosion and sedimentation of adjacent wetlands. Farming in Wetland Resource Areas (1/94) A-47 Appendix H Case Studies Case Study #2 1 Not to 9cole Barn House Situation: % A farmer currently irrigates from a pond which has been determined to be inadequate to meet the irrigation needs of the crops during extended dry periods. The farmer wishes to enlarge the pond by 8,000 sq. ft. within an area of bordering vegetated wetland (B VW). Q : What is the activity ? A: The activity is the expansion of a pond. Q : Is the project proposed on land in agricultural use (LIA U) ? A: No. It is outside any currently productive or related land. i; Q: Is the proposed activity exempt? A: Yes. This is one of the few activities which is necessary to support existing production and is exempt with an approved Soil Conservation Service (SCS) Conservation Plan. Enlarging an existing pond into BVW is exempt with a Conservation Plan if the BVW alteration is less that 10,000 sq. ft. [10.04(c)(2)(f)]. Q : What happens ? A: The farmer contacts SCS to secure technical assistance in planning and implementing the activity. The farmer also sets up an on-site meeting with SCS and the conservation commission as the first step in the planning process. Discussion Points: 1 . The decision to expand into a BVW assumes that the planning process has evaluated the alternatives. 2. Early communication with the conservation commission and SCS is beneficial to the planning process and an on-site scoping meeting is strongly urged [ 1 0.04 Agriculture (c)(2)]. A-48 Farming in Wetland Resource Areas (1/94) i Appendix H Case Studies Case Study #2A (cranberries) v ■*■ * * ♦ ■4, ♦ * Not to scale Situation: A grower is proposing to construct a by-pass channel to one side of an active cranberry bog. Approximately 5,000 sq. ft. of bordering vegetated wetland (B VW) will be altered in the process. The geography on the other side of the bog consists of a steeply sloping upland bank with houses at the top. How does this situation relate to the Wetlands Protection Act (WPA)? Q : What is the activity ? A: The activity is the construction of a by-pass channel adjacent to an active cranberry bog. <; Q: Is the proposed activity on land in agricultural use (LIA U)? A: Yes and No. The portion of the channel that is within land related to the production is LIAU. However, the portion that would be constructed within the B VW is not. Q: Is the construction of the by -pass channel an exempt activity? A: Yes. This is one of several activities that are necessary and related to production, and is exempt if the work is planned and carried out in concert with a Soil Conservation Service (SCS) approved Conservation Plan, and if the alteration of the BVW is less than 5,000 sq. ft. [10.04 (c)(2)(0(4)]. Q: What happens? A: The grower contacts SCS to secure technical assistance for planning and implementing the activity. As part of the planning, the grower arranges an on-site meeting with the conservation commission and SCS and submits a copy of the Conservation Plan to the Conservation Commission and DEP regional office. Discussion Point: 1 . A by-pass channel is considered a water quality improvement practice. Farming in Wetland Resource Areas (1/94) A-49 Appendix H Case Studies Case Study #3 Not to scale Barn House 1 Situation: A farmer has raised silage corn/hay in rotation on a field for the past 25 years but has sold the dairy herd and is now raising vegetables and small fruits that require irrigation water. The fanner proposes toexcavate an irrigation pond of 1 5,000 sq. ft. in bordering vegetated wetlands (B V W) adjacent to the cropland. How does this situation relate to the Wetlands Protection Act? Q : What is the activity ? A: The activity is the construction of an irrigation pond adjacent to a field in production. Q : Is the project proposed on land in agricultural use (LI A U) ? A: No. It is outside any currently productive or related land. Q : Is the proposed activity exempt? A: No. Constructing a new pond in B VW is not an exempt activity; it is allowed under a new "Conservation Plan Limited Project" provided that (a) the BV W alteration is less than 20,000 sq. ft. and (b) the project is part of an SCS approved Conservation Plan [10.53 (5)(c)(l)]. Q : What happens ? A : The farmer files a Notice of Intent (NOI). For this project, the filing fee is $55 . The farmer must include the relevant components of an SCS approved Conservation Plan with the NOI. The Conservation Commission shall issue the permit, but may adjust the BVW delineation. Discussion Points: 1 . The change in commodity from corn silage/hay to vegetable/fruits is exempt as a normal improvement activity [ 1 0.04 (c)( 1 )(f)] . 2. If the new pond were to alter more than 20,000 sq. ft., then a filing as a normal Limited Project would apply [10.53 (3)(g)]. 3. If the new pond were to be constructed within existing LIAU, it would be an exempt activity [ 1 0.04 (c)( 1 )(g)]. 4. As part of the Conservation Planning process, all alternatives for the location of the pond are evaluated todetermine the alternative A that is the most feasible and of the least impact on the BVW. ^ 5. An on-site scoping meeting early on in the planning process is strongly encouraged, bringing the farmer, conservation commissioner(s) and SCS together. A-50 Farming in Wetland Resource Areas (1/94) Appendix H Case Studies Case Study # 5 Not to scale Barn House Situation: A cropfield, which lies adjacent to a river, experienced damage from a storm. The streambank has eroded and the stream channel has collected two gravel bars which deflect flow against the bank. The farmer wishes to repair the damage to the field, repair the streambank and clear the stream channel. How does this situation relate to the Wetlands Protection Act? Q: What is the activity? A: The activities are repairing a cropfield, stabilizing a streambank and clearing a stream channel. Q: Is the project proposed on land in agricultural use (LIA U) ? A: Yes and No. The repairs on the cropfield are in LIAU, but the streambank and the stream channel work are not. Q: Is the proposed activity exempt? A: Yes and No. The repair of the cropfield damage is exempt. The stabilization of the streambank and the clearing of the channel are not, however, they can be allowed under the "Agricultural Emergency" provision. Q: What happens? A: The fanner can go ahead and repair damage to the cropfield. The farmer needs to contact the local conservation commission to notify them of the intent to repair the streambank and clear the channel. Under the new "Agricultural Emergency" provision, up to 100 linear feet of streambank may be allowed to be stabilized and debris within the stream channel cleared provided certain provisions relative to storm events and notification of activity to the local conservation commission are met and that SCS best management practices are adhered to [ 1 0.06 Emergencies (6)(g)( 1 )(2)]. Discussion Points: 1 . It is very important that farmers communicate with the conservation commission as soon as possible and within the time limits specified in the Wetlands Protection Act. 2. Farmers are encouraged to consider alternative streambank protection techniques. Farming in Wetland Resource Areas (1/94) A-51 I I I ^039 0 u ■■■'■ '''"•■ ■ -. JUN 4 »% 100 CAMBRIDGE Stt CHARLESTON