W.^. bA3(-.5-' V/JS3 N^t umass/amherSt D lillllllllllllllllllll 315DbbDlb77MSfll Wetlands Protection Program Policies March 1 995 Massachusetts Department of Environmental Protection Division of Wetlands and WatenA/ays ijo .j^ \\\)^' : ^ /.-^^ ^i^^ &\^^ J'€'^ Published by WILLIAM FRANCIS GALVIN Secretary of the Commonwealth Digitized by the Internet Arcliive in 2013 witli funding from Boston Library Consortium IVIember Libraries littp://arcli ive.org/details/wetlandsprotectOOmass Commonwealth of Massachusetts Executive Office of Environmental Affairs Department of Environmental Protection William F. Weld Governor Trudy Coxe Secretary, EOEA Thomas B. Powers Acting Commissioner Division of Wetlands and Waterways Wetlands Protection Program Policies 1995 Revisions Folic -ng the 1994 Wetlands Initiative, the Department of Environmental Protection/Division of Wetlands and Waterways (DWW) has undertaken a comprehensive review of its Wetlands Protection Program Policies. The Wetlands Protection Program Policies have been updated and revised to provide straight forward guidance for the implementation of the wetlands regulations without changing the basic purpose of the policies. Wetlands protection is enhanced in both this new policy package and the regulatory and programmatic changes associated with the 1994 Wetlands Initiative. The no net loss of wetlands policy, as enunciated by the Massachusetts Water Resources Commission, Executive Office of Environmental Affairs, and DEP, is embodied in the new 401 Water Quality Certification Program. The no net loss policy represents a series of statements articulating the Commonwealth's overarching goal to stem wetland loss. As such, the goal of no net loss has guided the development of the 1994 Wetlands Initiative and the 1995 revisions to the Wetlands Program Policies. While the no net loss policy will continue to guide regulations and program policies of the Wetlands Protection Program in the years to come, the goal of no net loss of wetlands has been significantly advanced by the 1994 Wetlands Initiative. The major elements of the 1994 Wetlands Initiative include: - Water Quality Certification Revisions (314 CMR 9.00): reducing duplication with the Wetlands Protection Program and increasing protection to ensure compliance with the state's water quality standards. - Surface Water Quality Standards (314 CMR 4.00) : coordinating this program with the 401 Program and clarifying the regulations related to the discharge of fill into vegetated wetlands. - Bordering Vegetated Wetlands Delineation: providing a more scientif ■ cally-based and consistent procedure for determin_.ig wetland boundaries by allowing hydrologic indicators, such as soils, to be used in addition to wetlands plants. Adjudicatory Hearing Rules: improving the speed and efficiency of processing adjudicatory hearing appeals One Winter Street • Boston, Massachusetts 02108 • FAX (617) 556-1049 • Telephone (617) 292-5500 allowing greater staff time for compliance, enforcement, and permitting. These regulations provide enhanced wetlands protection for large projects (i.e. >5,000 square feet of wetland impacts), those projects with the potential for cumulative impacts (e.g. subdivisions), all projects in critical resources (e.g. surface drinking water supplies and certified vernal pools) , and in any event require 1:1 replication for all wetland impacts. In summary, the 1994 Wetlands Initiative and the revised policy package advance the Commonwealth's commitment to stem wetlands loss and to ensure that any permitted wetlands fill is fully mitigated. The new policy package has been consolidated into 12 reformatted policies, effective March 4, 1995. The former DWW policy numbers have been provided in the new edition for ease of cross- referencing. The original issuance date is also provided, as well as revision dates for those policies which required substantive changes. The revised package has removed several wetlands policies which have become either outdated, revised, or replaced since 1982 . The most significant change in the new Wetlands Protection Policy Package involves the addition of a new policy. The new policy (Titled: Bordering Vegetated Wetland Delineation Criteria and Methodology) has been developed to provide clear guidance on the definition, critical characteristics, and boundary of Bordering Vegetated Wetlands (BVW) . This new BVW policy is also supplemented with a detailed BVW handbook, entitled Delineating Borderincr Vecretated Wetlands Under the Wetland Protection Act, dated March 1995, which has been distributed to all Conservation Commissions. In addition, some policies have been removed for various reasons including: recent incorporation into the wetland regulation amendments (new definition for agriculture) , replacement by more detailed guidance documents (developed enforcement manual) , or not sufficiently useful in their current form. The Wildlife Habitat and Evaluation Policies (DWW Policies 88-1 and 88-5) have been withheld at this time because I believe that they need to be fully reviewed and revised. Nevertheless, these policies will serve as a useful guidance until revised in the coming year. Copies of the 1995 Wetlands Program Policies may be obtained from the Department of Environmental Protection (One Winter Street, 8th Floor, Boston, MA 02108) or the Massachusetts Association of Conservation Commissioners (10 Juniper Road, Belmont, MA 02178) I am confident that the revised policy package will provide a useful tool in the application of the wetlands regulations. March 4, 1995 C_^Carl F. Dierker Acting Director Division of Wetlands and Waterways Contents ILSF Definition: Interpretation of 3 10 CMR 10.57(2)(b): Definition of Isolated Land Subject to Flooding (DWW Policy 85-2) 1 Amended Orders: Amending an Order of Conditions (DWW Policy 85-4) 3 Title 5: 310 CMR 10.03(3): Presumptions for Subsurface Sewage Disposal Systems that Meet Title 5 or More Stringent Local Board of Health Requirements (DWW Policy 86-1) 5 Expedited Review: Policy Relating to the Expedited Review of License, Approval, or Permit Applications (same as current DEP Policy C093-1) (DWW Policy 87-1) 7 Access Roadways: Interpretation of 310 CMR 10.53(3)(e) Limited Projects: Access Roadways or Driveways (DWW Policy 88-2) 9 Multiple Filings: Multiple Notice of Intent Filings for the Same or Similar Projects on the Same Property (DWW Policy 88-3) 1 1 Appeal Stays: Stay of Requests for Adjudicatory Hearings in Wetlands Permit Cases When an Order of Conditions has been Denied Under a Local Wetlands Bylaw (Zoning or Non-Zoning) (DWW Policy 89-1) 13 Rare Species: Standards and Procedures for Determining Adverse Impacts to Rare Species Habitat (DWW Policy 90-2) 15 Plan Changes: Administrative Appeals Policy for the Review of Project Plan Changes (DWW Policy 91-1) 17 Salt Ponds: Criteria for Evaluating and Permitting Openings of Salt Ponds In Order to Manage, Maintain or Enhance Marine Fisheries (DWW Policy 91-2) 19 Coastal Banks: Definition and Delineation Criteria for Coastal Banks (DWW Policy 92-1) 23 BVW: Bordering Vegetated Wetlands Delineation Criteria and Methodology 27 Appendix: Status Summary of Wetland Protection Program Policies and Guidelines 3 1 Wetlands Protection Program Policies (March 1995) ILSF Definition Policy ILSF Definition: Interpretation of 310 CMR 10.57(2)(b): Defin ion of Isolated Land Subject to Flooding (DWW Policy 85-2) Issued: January 24, 1985 Revised: March 1, 1995 "Land Subject to Flooding," as defined in the Wetlands Protection Act (the "Act"), has been divided in the regulations into two different types of areas. Border- ing Land Subject to Flooding includes areas which flood as a result of water rising from creeks, ponds, rivers, or lakes. Isolated Land Subject to Flooding includes areas which flood due to ponding of runoff or high ground water. The characteristics of these different types of areas are defined in 310 CMR 10.57(2). The interests served by these areas are set forth in the discussion section and the performance standards, 310 CMR 10.57(1) and 310 CMR 10.57(4) respectively. One of the principal purposes of the definition of Isolated Land Subject to Flooding (ILSF) is to differen- tiate between those areas that serve the interests of the Act in a significant way and areas where small amounts of water may collect occasionally-puddles, in effect. A second purpose is to distinguish between those areas that are important parts of a larger water resoi system— for which the cumulative effects of even ill fillings can lead incrementally to serious flood. ^ problems over the entire floodplain~and those that are only locally significant to the interests of storm damage and flood prevention. By making these distinctions, the regulations prov' !e appropriate protection to land areas that func n in different ways A third purpose is to ensure consistent application of these distinctions by the issuing authority, providing a greater degree of certainty for land owners with regard to the standards of review they should expect. Unfortunately, there has been some confusion as to the interpretation of the definition of an ILSF, reducing the degree to which consistent administration has been achieved. This policy sets forth, for the guidance of landowners, developers, and the issuing authority, the Department's interpretation of specific portions of its regulations defining an ILSF. (1) "An isolated depression or closed basin without an inlet or an outlet". The phrase "without an inlet or an outlet" is not intended as a lite exclusion of all sources of flow, channelized or herwise, into a basin. Obviously, any basin must have m "outlet" of some kind at some elevation at which the basin would be overtopped; similarly, there must be some flow of water into the basin (whether through ground or surface water) if there is to be any accumulation. In the context of this definition, "inlet" is intended to refer only to a hydrologic connection with the 100-year flood event on a waterbody. "Inlet" is only used to distinguish ILSF from Bordering Land Subject to Flooding (BLSF), which has such a hydrologic connection with the 100-year flood event on a waterbody. A different set of performance standards, appropriate to the flood storage function within the larger system, applies to the BLSF. Thus, a basin which receives a channelized flow generated by runoff may constitute an ILSF if the remaining elements of the definition are met, even though such a channel could be termed an "inlet" in some sense. Similarly, the existence of an "outlet" at a certain elevation does not preclude a finding that a basin constitutes an ILSF, if the requisite volume of water is confined within the basin below that elevation. (2' "An are? which at least once a year confines standing wa ..." "At least once a year" refers to a statistical event with a one-year return period, and is not dependent on direct annual observations and measurements of volumes confined within a specific basin. The observation that the requisite volume of water was or was not confined within a specific basin in a particular year is not conclusive, though of course it may be relevant to a determination that the basin is or is not an ILSF. The methodology of the calculations should be consistent with that described in 310 CMR 10.57(2)(a)(3) and (b)(3), except that the calculation should be based on a 24 hour event with a one-year return period. One qui on involves the use of high ground water, especia, vvhere it may rise above the surface of the ground, and when it should be used to determine jurisdiction. The Preamble at 310 CMR 10.57(1 )(b) recognizes that ILSF can serve to pond ground water which has risen above the ground surface. This pondine will impact the ability of the site to store water and n affect flooding on the site. When information is available that indicates that ground water contributes to the volume of water in an ILSF basin it should be used to determine the jurisdiction. Information such as records of ground water (e.g., septic system design percolation rate data or soil pits) or other credible Wetlands Protection Program Policies (March 1995) ILSF Definition Policy evidence could also be used to identify whether surface water on the site is due to surface runoff ponding on the site or is due to ground water that has risen above the surface of the ground. (3) Boundary of ILSF. The boundary of an ILSF is defined in 310 CMR 10.57(2)(b)(3) as the largest observed or recorded volume of water confined within the area. In the event of dispute, calculations regarding the extent of the 100-year flood event are used to determine the probable extent of such water. The lateral boundary of the ILSF is the area that will be inundated during that event. As indicated above, if there is an outlet at a given elevation such that water will not be confined within the basin above that elevation, the outlet elevation should generally represent the boundary of the area (unless water will continue to be contained above that elevation despite the presence of an outlet). Thus, the boundary of the ILSF is either the elevation at which retained waters reach an "outlet" and flow out of an ILSF basin, or the area of inundation resulting from a 100-year storm if there is no such outlet. The calculations should assume that the ELSF basin is impervious, but should use standard methodologies to account for infiltration within the contributing watershed based on the relative proportions of pervious and impervious surfaces. However, this interpretation does not prohibit the use of additional information, such as ground water data where available, from being used. It is appropriate for the issuing authority to review all credible information to reach a decision and, as indicated above, direct observations can be used to determine the boundary of ILSF. Therefore, the runoff calculation identified in 310 CMR 10.57(2)(b)(3) and referred to in this policy is not presumed to be correct if ground water informa- tion, where available, is ignored or omitted. As an example, the runoff calculation is important when determining impacts due to flooding and may be especially important for protecting the public interests of public or private water supply and ground water supply when an ILSF is underlain by pervious mate- rial. However, when using observations of surface water, it must be made certain that the surface water observed at a site is due to high ground water and is not solely a result of surface water collecting on the site. If observed surface water is due to runoff collect- ing on the site it would not be appropriate to combine the observed water with runoff calculations since the observed water is only a result of runoff. It is important to note that two sets of calculations may be relevant for determining the existence and extent of an ILSF. First, the 1 year storm calculation is a threshold determination of jurisdiction. If the calcula- tions show that the requisite volume of water is confined within a particular basin, the basin is an ILSF. Second, in making a boundary determination for areas that meet or exceed the threshold, the 100 year storm calculation or the location of an outlet may be used. In both cases, the calculations should assume no infiltration within the ILSF basin itself, but may make standard assumptions with respect to infiltration within the contributing watershed. Wetlands Protection Program Policies (March 1995) Amended Orders Policy Amended Orders: Amending an Order of Conditions (DWW Policy 85-4) Issued: September 17, 1985 Revised: March 1, 1995 Following the issuance of a Final Order of Conditions, unforeseen circumstances sometimes arise which may require minor deviations from the project approved in that Order. To allow for the smooth operation of the permitting procedure and to avoid unnecessary and unproductive duplication of regulatory effort after a Final Order of Conditions has been issued, the Depart- ment recognizes that it would not be reasonable to require a complete refiling of the Notice of Intent when the changes sought in the Final Order of Conditions are relatively minor and will have unchanged or less impact on the interests protected by the Act. Amended Orders provide assurances to applicants that modifica- tions undertaken in the course of the project are within the scope of the deviations allowed for the receipt of a Certificate of Compliance at 310 CMR 10.05(9)(d). Thus, the process of amending a Final Order of Conditions is acceptable to the Department as long as certain procedural safeguards are employed. This policy does not apply to Final Orders of Conditions which have expired. Amending a Final Order of Conditions is at the discretion of the body that issued the Final Order of Conditions ("the issuing authority"). There is no provision in the wetland regulations that requires the issuing authority to consider or act upon a request to amend a Final Order of Conditions. There is no right to request a Superseding Order of Conditions or an Adjudicatory Hearing if a request to amend is not granted. If the issuing authority refuses to amend a Final Order of Conditions, the only opportunity for further review is the filing of a new Notice of Intent. The Department recommends that in processing an amendment to a Final Order of Conditions, the most simple changes, such as correcting obvious mistakes such as citing a wrong file number or typographical errors, be accomplished by correction of the Order, with a copy sent to the Department. In other cases, the Department recommends that the following procedures be used: 1) The applicant makes a request for an amendment to the issuing authority (the Conservation Commission in the case of an Order of Conditions or the Department of Environmental Protection in the case of a Supersed- ing Order of Conditions). The request for an amend- ment of the Final Order of Conditions issued by a Conservation Commission is to be made either orally at a regularly scheduled meeting of the Commission or by submitting the request to the Commission in writing. In either case a written copy of the request, a narrative description of what changes have been proposed and any pertinent plans showing the changes are to be sent to the Department's Regional Office. The request for an amendment of a Superseding Order of Conditions issued by the Department's Regional Office is to be made in writing to the DEP Regional Office. A written copy of the request should also be forwarded to the Conservation Commission. 2) The issuing authority first makes a determination whether the requested change is great enough to warrant the filing of a new Notice of Intent or whether it is of a relatively minor nature and can be considered as an amendment to the original Final Order of Conditions. In making this determination, the issuing authority should consider such factors as whether the purpose of the project has changed, whether the scope of the project has increased, whether the project meets relevant performance standards, and whether the potential for adverse impacts to the protected statutory interests will be increased. Relatively minor changes which result in the same or decreased impact on the interests protected by the Act are appropriate for amendments. If the determination is made that the project purpose or scope has changed substantially or that the interests specified in the Wetlands Protection Act are not protected, then the issuing authority should not issue the amendment, but should require the filing of a new Notice of Intent. 3) If the Conservation Commission determines that a new Notice of Intent is not necessary, the Conservation Commission should publish newspaper notice (at the applicant's expense) in the same general manner as outlined in the Act for new Notices of Intent and as required by the Open Meeting Law, M.G.L. c. 39, §23B, to inform the public that the request for amend- ment to the Order of Conditions will be considered by the Commission at a public hearing. In addition, the applicant must follow the requirements of abutter notification as if filing a Notice of Intent as described in the Act. When the request for an amendment is before the Department the applicant must publish notice in a newspaper of general circulation in the municipality where the requested amendment to the Wetlands Protection Program Policies (March 1995) Amended Orders Policy proposed activity will take place. The notice must describe that an amendment to a Final Order is being requested, that the request is before the Department for review, and the date that the public comment period closes. Proof of notice must be provided to the Department. 4) If, after considering the information presented by the applicant and any comments received at the public hearing, or submitted to the Department within 21 days of the requested amendment, and the issuing authority decides to issue an amended Order of Conditions, a copy of such Order should be forwarded to the Department's Regional Office or the Conserva- tion Commission, as the case may be, at the time of issuance. By analogy to the usual appeal procedure of the Final Order of Conditions, a person aggrieved by the amendments to the Order, or the other parties given appeal rights in 310 CMR 10.07, may, within ten days of issuance, request that the Department review the changes made to the Final Order of Conditions. The issues under appeal will be limited to those issues subject to the amendment(s) or the change(s) made in the Final Order of Conditions. Until there is a final resolution of the appeal, no work may continue on those portions of the project not permitted under the Final Order of Conditions but only permitted by the amendment(s) which has been appealed. 5) Under no circumstances will the issuance of an Amended Order of Conditions extend the effective date of the original Final Order of Conditions. The Amended Order shall run with the term of the original Order of Conditions or the effective date of an ex- tended Order of Conditions. 6) The Amended Order should be issued on the form provided for an Order of Conditions, with the insertion of the word "Amended" and the amendment date. Amended Orders must be recorded with the Registry of Deeds in the same manner as Orders. Wetlands Protection Program Policies (March 1995) Title 5 Policy Title 5: 310 CMR 10.03(3): Presumptions for Subsurface Sewage Disposal Systems that Meet Title 5 or More Stringent Local Board of Health Requirements (DWW Policy 86-1) Issued: July 11, 1986 Revised: March 1, 1995 The Wetlands Regulations, at 310 CMR 10.03(3), establish a presunr^non that a subsurface sewage disposal system, \ .ch comphes with the requirements of Title 5 or more stringent local Board of Health requirements, protects the interests of the Wetlands Protection Act (the "Act"). Compliance with the requirements of Title 5 or more stringent local require- ments may be ascertained by the Conservation Com- mission either by reliance on the issuance of the Disposal System Construction Permit or by consulta- tion with the Board of Health. The Department will generally rely on the issuance of the Disposal System Construction Permit by the Board of Health unless the Department is provided with credible evidence from a competent source or otherwise determines that further inquiry is appropriate. This presumption, however, only has effect if none of the components of the system is located within certain resource areas set forth at 310 CMR 10.03(2), and if the leaching facility of the system is located: (a) at least 50 feet from the most landward edge' of those areas when the system is eligible for construction in compliance with the 1978 Title 5; or (b) at least 50 feet from the most landward edge of the BVW, salt marsh, inland or coastal bank, 1(X) feet from the most landward e^ 'e of wetlands bordering a surface water supp' r tributary thereto, or 1(X) feet (50 feet if the systc is downgradient) from the most landward edge of a vernal pool certified at the time the application for the Disposal System Construction Permit is filed when the system is to be constructed in compliance with the 1995 Title 5^; or (c) a greater distance if required by a local Board of Health by-law or regulation. Conservation Commissions and the Department, however, are not authorized to enforce more stringent local Board of Health requirements because neither has the authority to interpret ambiguous language that may be included in those by-laws or regulations or to determine whether the local Board of Health should grant a variance from the local standards. Any systems granted a variance which would reduce the setback to less than 50 feet from certain resource areas set forth at 310 CMR 10.03(2) will not be entitled to this presumption. Therefore, the Department adopts the following guidelines for applying the provisions of 310 CMR 10.03(3): (1) When reviewing a Notice of Intent, a Conservation Commission or the Department must determine whether a proposed sewage disposal system meets the applicable Title 5 wetlands setbacks as set forth above. Usually, Ti'lf 5 issues o' t than wetlands set-backs should be to the Boi of Health unless there is overwhelming evidence .aat the Board of Health has failed to properly review the case. The Title 5 require- ments that may be considered are limited to those, such as the depth to groundwater, where a system not in compliance would h: - the potential to impair re- source areas identifie ,310 CMR 10.03(3). It is highly unlikely, there. ■.^, that a standard such as a lot- line set-back requirement should ever be considered in a wetlands review. (2) Neither a Conser ition Commission nor the Department have the uthority to interpret Board of Health regulations or to decide whether a local Board of Health will issue a variance from its own regula- tions. Where a proposed project meets the require- ' All setback distances from wetlands shall be measured in accordance with criteria of the Wetlands Protection Act and 310 CMR 10.00 from the most landward edge of the following: BVW, salt marsh, top of inland bank and top of coastal bank, all as defined in 310 CMR 10.00. ^ The intent of the Title 5 regulatory citation contained in 310 CMR 10.03(3) is to reference the Title 5 in effect at the time the regulatory presumption is applied. Accordingly, the 1995 Title 5 setbacks (see 310 CMR 15.21 1) referenced in this paragraph (b) update the regulatory reference to the 1978 Title 5 setbacks contained in 310 CMR 10.03(3). Wetlands Protection Program Policies (March 1995) Title 5 Policy ments of Title 5, but may fail to meet more stringent local standards, the Conservation Commission and the Department have two recommended alternative courses of action: a) Where it is clear that the system does not meet the local Board of Health requirements, such as when the Board of Health has already denied a request for a permit, the Conservation Commission or the Depart- ment could deny the project and require the applicant to obtain a permit from the local Board of Health prior to the issuance of an Order of Conditions. Suggested wording for such a denial is: "This project is denied because it does not meet the [specify requirement not met that would have the potential to impair resource areas identified in 310 CMR 10.03(3)] requirements of the [town name] Board of Health and therefore does not have the benefit of the presumption under 310 CMR 10.03. A new Notice of Intent may be filed if the [town name] Board of Health issues a permit, or the project is revised to meet the [town name] Board of Health requirements." Conservation Commissions and the Department must be careful when using this alternative. Many Boards of Health simply will not take any action before the issuance of an Order of Conditions. It would not be proper, therefore, to create a situation where the applicant is placed in the impossible position of having neither approval available until the other is obtained. b) If the only question about the permissibility of the proposed work is whether it will receive a local Board of Health permit, it is generally preferable for the Conservation Commission or the Department to issue an Order of Conditions that will permit the work on the condition that the applicant subsequently receives a local Board of Health permit. Suggested wording for such a condition is: "No work permitted by this Order may begin unless and until the applicant receives a subsurface sewage disposal permit from the [town name] Board of Health which complies with both the requirements of Title 5 and any more stringent local standards, and until a copy of said permit is sent to the Conservation Com- mission and the Department. The Conservation Commission or the Department are responsible for making the wetland boundary delinea- tion in accordance with 310 CMR 10.00 and relevant policies [e.g. BVW policy, coastal bank policy] for the Board of Health to use in its review. Generally, this delineation will take place when the applicant's plans have been reviewed and found accurate, or modified in accordance with the findings of the Conservation Commission or the Department. Wetlands Protection Program Policies (IVlarch 1995) Expedited Review Policy Expedited Revie>* : Policy Relating to the Expedited Review of License, Approval, or Permit Applications (same as current DEP Policy C093-1; DWW Policy 87-1) Issued: December 8, 1987 Revised: March 1, 1995 Applicability The following policy is applicable to all DEP Programs excluding those administered by the Bureau of Waste Site Cleanup, effective April 15, 1993. Policy Generally, the Department of Environmental Protec- tion (DEP) policy regarding the review of applications for licenses, approvals, and permits and adjudicatory hearings concerning such licenses, approvals, and permits is to consider them in the order in which they are received. Exceptions to this chronological review procedure can be made when, in adjudicatory hearings, enforcement cases are prioritized over permit appeals, with permit applications where a fee refund would result if an application were to await chronological review or in the limited number of cases where there is a substantial public interest at stake and a formal request to expedite the review is granted. At least one of the following criteria must be the basis for approv- ing such a request. 1. The application involves a project of significant public benefit - for example, the construction of a new municipal water supply, a public water transportation terminal, a public recreational facility, elderly housing project, or; 2. The application involves a project that will result in a significant improvement of environmental quality - for example, a hazardous waste site cleanup, a landfill capping project, municipal wastewater treatment facilities, or; 3. The application involves a project that will reduce or eliminate a demonstrated threat to le public health or safety - for example, the installatit ,; of a new flood control structure, upgrading substandard and hazard- ous road intersections or publicly funded erosion control structures. Procedure for Requesting Expedited Review: All requests for expediting must be i writing, must indicate the time frame tances '^lay a project be permitted which will have any ad\ c effect on the specified habitat site of rare species as identified pursuant to 310 CMR 10.37 and 10.59. Wetlands Protection Program Policies (March 1995) 19 Salt Ponds Policy Requirements for Project Review and Conditioning A. Applicant Must Show That Opening is for an Approvable Puqjose. When the outlet of a salt pond which has supported a viable marine fisheries becomes closed (either because the outlet becomes filled in or its position shifts along the barrier beach), it may be desirable to periodically open the outlet artificially in order to manage, main- tain or enhance the fishery. The threshold finding the issuing authority must make is whether the applicant has demonstrated that the primary purpose of the pond opening is to manage, maintain or enhance marine fisheries. An applicant may propose activities to maintain the depth and opening of an existing open- ing, or activities to re-open a closed pond; provided the applicant demonstrates that the pond has been opened in the past as a result of natural or man-made causes and that a viable fisheries in the pond presently exists or existed in the past. The existence of a "viable fisheries" shall be deter- mined by the issuing authority using best professional judgment (after consultation with the Division of Marine Fisheries and the local shellfish constable) and shall be based upon submitted information. The existence of a viable marine fisheries and of prior openings may be demonstrated by reliable, credible information. The applicant may submit historical records, including photographic evidence, or if no records exist, he/she may submit an affidavit of one or more individuals made upon personal knowledge. If an applicant cannot demonstrate an approvable purpose enabling the issuing authority to make this threshold finding, the issuing authority must deny the project. For example, when the intended purpose of a salt pond opening is to control eutrophication or to reduce odor, the project would fall outside of this policy and would not be allowed unless it met all of the applicable performance standards of the regulations. B. Permit Conditions Must Minimize Adverse Impacts If an applicant demonstrates an approvable purpose, the issuing authority may permit the activity, provided conditions can be imposed that will prevent or mini- mize adverse effects to resource areas (except salt marshes) in and around the pond to the greatest extent possible. If conditions adequate to prevent or minimize adverse effects cannot be imposed, an Order of Condi- tions allowing the opening should not be issued. Proposed salt pond openings for which the applicant has demonstrated an approvable purpose should be evaluated in the following manner: 1 . Assess all impacts to affected resource areas and their respective protected interests; 2. Develop conditions to prevent or minimize adverse effects to existing resource areas to the greatest extent possible, in accordance with the applicable regulatory provisions; and 3. Allow the opening if the project: a) does not have unacceptable adverse effects upon any interests of the Act; b) maximizes fisheries resource maintenance, enhancement or management; and c) prevents or minimizes adverse effects so that the project, overall, contributes to those interests. Information Requirements The Notice of Intent (NOI) should document that the project is necessary to manage, maintain or enhance marine fisheries and provide baseline information on all resource areas which will be affected by the project. The information provided should be sufficient to allow the issuing authority to assess impacts to these resource areas. Each proposed opening is unique and the level of information required to assess impacts and impose appropriate conditions necessarily will vary. The issuing authority should require the level of informa- tion appropriate to the particular project. At a minimum, the applicant should submit informa- tion: a. describing the history of pond openings and its use as a fishery, and the proposed plan for fisheries resource management, enhancement, or maintenance; b. delineating all affected resource areas and identify- ing short- and long-term impacts to affected resource areas and their affected interests; c. describing the location of, and impacts on, public and private water supplies in the pond's vicinity; d. assessing wildlife habitat, including the presence of rare species habitat in accordance with the applicable procedures at 310 CMR 10.37, 10.59 and 10.60; and e. describing the history of storm events in the immedi- ate area of the pond and impacts of the events on existing resource areas. In certain instances, the information presented will indicate that no number of conditions will adequately prevent or minimize adverse effects so as to adequately 20 Wetlands Protection Program Policies (March 1995) Salt Ponds Policy protect the interests of the Act. For example, salt water intrusion may contaminate water supplies to unaccept- able levels and no alternative source may be available. It may not be possible to condition a project so that there will be no adverse effect of specified habitat sites of rare species. In such instances, the project should be denied. Minimum Conditions Certain conditions will always be necessary to prevent or minimize adverse effects. For example, material excavated from the channel opening should not be removed from the barrier beach. Material should be stockpiled on site and placed, within the barrier beach system as appropriate. Any sediment lost due to excavation and scouring should be replenished to the barrier beach system. A time schedule for pond openings should be included in any Order of Condi- tions. The schedule should take into account tide fluctuations, impacts on wildlife habitat of fluctuating water levels and exposure in inclement weather, storm forecasts and the potential presence of rare or endan- gered species in the area. Disturbance of vegetation should be minimized to protect dune stability. Replica- tion of any Bordering Vegetated Wetlands altered directly or by vegetative dieback should be required where possible, particularly within the area exposed by pond lowering, if the area does not naturally revegetate after two growing seasons. Conditions protective of actual or potential water supplies should be incorpo- rated. Specific monitoring provisions should be incorporated into the Order of Conditions to track the impacts of the opening on the interests of the Act. Reports on all monitoring should be submitted to the Conservation Commission and the Department and reviewed by the issuing authority to determine whether any change in conditions and methods of data collection is warranted to protect the interests of the Act. Conditions should include a provision authorizing the discontinuation of the pond openings, if necessary, to protect the interests of the Act. Finally, note that projects permitted under this policy may still need to obtain a license pursuant to M.G.L. c. 91, the Waterways Act, and remain subject to appli- cable terms of any restriction order adopted under M.G.L. c. 131 §40A, Protection of Inland Wetlands, and M.G.L. c. 130 §105, Protection of Coastal Wet- lands. Wetlands Protection Program Policies (March 1995) 21 Non-text page 22 Wetlands Protection Program Policies (March 1995) Coastal Banks Policy Coastal Banks: Definition and Delineation Criteria for Coastal Banks (DWW Policy 92-1) Issued: March 3, 1992 Purpose The purpose of this policy is to clarify the definition of coastal bank contained in the Wetlands Regulations, 310 CMR 10.00, by providing guidance for identifying 'top of coastal bank'. Regulatory Standards Coastal wetlands are defined in the Wetlands Protec- tion Act (MGL c. 131, §40) as: "any bank, marsh, swamp, meadow, flat or other lowland subject to tidal action or coastal storm flow- age". Coastal banks are defined at 310 CMR 10.30(2) as: "the seaward face or side of any elevated landform, other than a coastal dune, which lies at the landward edge of a coastal beach, land subject to tidal action, or other wetland". When these two definitions are read together, coastal banks can be inferred to be associated with lowlands subject to tidal action or subject to coastal storm flowage. Coastal banks, therefore, can occur around non-tidal ponds, lakes and streams provided that these elevated landforms confine water associated with coastal storm events, up to the 100-year storm elevation or storm of record. Land Subject to Coastal Storm Flowage, in turn, is defined at 310 CMR 10.04 as: "land subject to any inundation caused by coastal storms up to and including that caused by the 100-year storm, surge of record or storm of record, whichever is greater". The Department uses the 100-year coastal flooding event as defined and mapped by the Federal Emer- gency Management Agency (FEMA) per the National Flood Insurance Program, as the maximum flood elevation associated with land subject to coastal storm flowage, unless recorded storm data reveal a higher flood elevation (which is the storm of record). Analysis Top of Coastal Bank Delineation The phrase "top of coastal bank" is used to establish the landward edge of the coastal bank (310 CMR 10.30). There is no definition for "top of coastal bank" pro- vided in the Act or the Regulations. A Guide to the Coastal Wetlands Regulations, prepared by the Massa- chusetts Coastal Zone Management Office, upon which Conservation Commissions and the Department have relied for guidance, states that the landward boundary of a coastal bank is "the top of, or first major break in, the face of the coastal bank", and implies that it is easily identified using United States Geologic Survey topographic quadrangles. However, the scale of topographic quadrangle maps generally do not allow for parcel specific analysis. No further definition of "top of and "major break" is provided. The following standards should be used to delineate the "top of coastal bank" [refer to attached figures (1-7) for a graphic presentation of the information below]: A. The slope of a coastal bank must be > 10: 1 (see Figure 1). B. For a coastal bank with a slope of >4: 1, the "top of coastal bank" is that point above the 100-year flood elevation where the slope becomes <4: 1. (see Figure 2). C. For a coastal bank with a slope >10:1 but <4:1, the top of coastal bank is the 100-year flood elevation, (see Figure 3). D. A "top of coastal bank" will fall below the 100-year flood elevation and is the point where the slope ceases to be > 10:1. (see Figure 4). E. There can be multiple coastal banks within the same site. This can occur where the coastal banks are separated by land subject to coastal storm flowage [an area <10:1]. (See Figures 5 and 6). When a landform, other than a coastal dune, has a slope that is so gentle and continuous that it does not Wetlands Protection Program Policies (March 1995) 23 Coastal Banks Policy act as a vertical buffer and confine elevated storm waters, that landform does not qualify as a coastal bank. Rather, gently sloping landforms at or below the 100-year flood elevation which have a slope <10:1 shall be regulated as "land subject to coastal storm flowage" and not as coastal bank (see Figure 7). Land subject to coastal storm flowage may overlap other wetland resource areas such as coastal beaches and dunes. Information Requirements for Project Review Due to the complex topography associated with coastal banks, the following requirements are intended to promote consistent delineations. In order to accurately delineate a coastal bank, the following information should be submitted, at a minimum, to the Conserva- tion Commission and the Department of Environmental Protection: the coastal bank should be delineated and mapped on a plan(s) to a scale of not greater than 1 inch = 50 feet, including a plan view and a cross section(s) of the area being delineated showing the slope profile, the linear distance used to calculate the slope profile, and the location of this linear distance. In addition, there must be an indication which of the five diagrams mentioned above is (are) representative of the site. Averaging and/or interpolating contours on plans can result in inaccurate delineations. Therefore, it is strongly recommended that follow-up field observa- tions be made to verify delineations made from engineering plan data and shown on the submitted plans. The final approval of resource boundary delineations rests with the issuing authority (Conserva- tion Commission or Department of Environmental Protection). 24 Wetlands Protection Program Policies (March 1995) Coastal Hanks Policy 3 -- 2-- Figure 1 4:1 10:1 Note that 4:rslope is greater than (steeper than) 10:1 slope. ■ 4:1 is equaiivent to 14 degrees or 25 percent. " 10:1 is equaiivent to 6 degrees or 10 percent. Top of Bank Top of ank I Bank <4:1 >10:1 Figure 2 Figure 3 Legend - Figures 2 and 3 are not to scale ^^ 1 0 year flood elevation (as shown on community FIRM) or storm of record I 1 Land subject to coastal storm flovvage (LSCSF) Coastal Bank Toe of bank which lies at the landward edge of a coastal beach, land subject to tidal action, or other wetland Wetlands Prote on Program Policies (March 1995) 25 Coastal Banks Policy >10:1 Bank Figure 4 Figure 5 Figure 6 Figure 7 Legend - Figures 4, 5, 6, and 7 are not to scale 1 00 year flood elevation (as shown on community FIRM) or storm of record Land subject to coastal storm flowage (LSCSF)' Coastal Bank Toe of bank which lies at the landward edge of a coastal beach, land subject to tidal action, or other wetland 26 Wetlands Protection Program Policies (March 1995) BVW Policy BVW: Bordering Vegetated Wetland Delineation Criteria and Methodology Issued: March 1, 1995 Purpose This policy defines which plant species or other plants are wetland indicator plants as specified in the wetland regulations (310 CMR 10.55(2)(c)). This policy also identifies a standard methodology for determining the boundary of Bordering Vegetated Wetlands (BVWs) in accordance with 310 CMR 10.55(2)(c)(l-3). As a supplement to this policy, the Department has developed a handbook and field data form to assist in the method- ology of delineating wetlands. Statutory and Regulatory Background The Wetlands Protection Act, M.G.L. c. 131 § 40, states within the definition of bogs, marshes, swamps, and wet meadows that " ... a significant part of the vegetational community is made up of, but not limited to, nor necessarily including all of the following plants or groups of plants...". The definition for BVW in the wetland regulations (310 CMR 10.55(2)(a)) states that these areas "... support a predominance of wetland indicator plants...". The regulations (at 310 CMR 10.55(2)(c)) go on to describe a BVW boundary as "... the line within which 50 percent or more of the vegetational community consists of wetland indicator plants...". Analysis Wetland indicator plants are defined in the regulations at 310 CMR 10.55(2)(c) as one of three groups: 1 . plant species listed in the Act; 2. plants in the U.S. Fish and Wildlife Service's National List of Plant Species that Occur in Wetlands: Massachusetts (Reed, 1988) with a wetland indicator category of FAC, FAC+, FACW-, FACW, FACW+, OBL, and; 3. plants with morphological or physiological adapta- tions to life in saturated conditions. Plants Listed in the Act: The Wetlands Protection Act lists plants by common name and one of the following: family (i.e. rushes - Juncaceae), genus (i.e. ashes - Fraxinus) or species' (i.e. red maple - Acer rubrum). However, some plants that normally occur in uplands are included in some of these family and genus groups listed in the Act (such as Juncaceae -Juncus secundus - secund rush , or Fraxinus - Fraxinus americana - white ash). To clarify this inherent ambiguity, the Department has deter- mined that all species listed in the Act are wetland indicator plants. Where families or genera- of plants are identified in the Act, the Department will include the species within those families or genera that are within the appropriate categories on the National List. Plants on the National List: Plants in the National List with a wetland indicator category of Facultative (FAC), Facultative+ (FAC+), Facultative Wetland- (FACW-), Facultative Wetland (FACW), Facultative Wetland+ (FACW+), or Obligate Wetland (OBL) are included in the wetland regulations as wetland indicator plants. The National List is a comprehensive list of vascular plants that occur in wetlands. Any changes or future supplements to the 1988 National List for Massachusetts will be reviewed and approved by the Department before being used in conjunction with the wetland regulations. Plants With Adaptations: In some instances, plants with indicator categories of Upland (UPL), Facultative Upland (FACU), or Facultative- (FAC-) that exhibit adaptations to life in saturated conditions are also wetland indicator plants. Some examples of these adaptations include shallow root systems, fluted trunks, buttressed tree trunks, multiple trunks, adventitious roots, polymorphic ' Also known as scientific name. ^ The U.S. Fish and Wildlife Service List has only characterized vascular plants. The U.S.F.W.S. List has not charac- terized non-vascular plants. The Department recognizes species within the Spliagnu/n genus as wetland indicator plants. Wetlands Protection Program Policies (March 1995) 27 BVW Policy leaves, floating leaves, floating stems, hypertrophied lenticels, oxidized rhizospheres, aerenchyma, and inflated leaves, stems or roots. One example is white pine (Pinus strobus) with shallow roots or swollen trunks found growing in forested wetlands. Methodology for Determining a BVW Boundary Although the BVW boundary is based upon the line in which 50% or more of the vegetational community consists of wetland indicator plants, there has been uncertainty as to how this percentage should be determined. In order to provide consistency in determining BVW boundaries, the Department has produced a handbook describing a methodology. The Department has also developed a field data form, contained in the handbook, that should be used to report information used in determining the boundary. The handbook, "Delineating Bordering Vegetated Wetlands Under the Massachusetts Wetlands Protec- tion Act" (Department of Environmental Protection, Division of Wetlands and Waterways, 1995) includes the details of how to conduct, prepare for, and review boundary delineations for Bordering Vegetated Wetlands. It describes how to conduct the dominance test, how to determine the presence of wetland hydrol- ogy at a site, and how to establish the BVW boundary from this information. When delineating or verifying a BVW boundary it is important to record certain information about site characteristics. Any information used to determine or verify the BVW boundary should be reported on the DEP field data form. Site specific conditions may allow a BVW boundary to be established without detailed measurements or calculations. An example is where an abrupt change in topography results in an obvious change in vegetation. In these cases, docu- mentation of the vegetation and general site conditions may be used to delineate a BVW boundary. Site information should be recorded on the DEP field data form and submitted with the Request for Determi- nation of Applicability or Notice of Intent whether or not detailed information or measurements are used. The field data form can also be used by the issuing authority to record information when verifying a BVW boundary. When vegetation alone is adequate to delineate a BVW boundary, complete only the vegeta- tion portion of the form. When vegetation alone is not adequate to delineate the BVW boundary, both vegeta- tion and hydrologic information should be provided on the form. The dominance test should be used to determine whether the vegetative community consists of 50% or greater wetland indicator plants. The dominance test is a sampling technique that identifies which plant species are the most abundant within an observation plot. The dominance test uses the most abundant plants in an observation plot since the dominant plants often provide a good representation of site characteris- tics'. The dominance test determines plant species domi- nance by evaluating percent cover (basal area can be used for trees). Information on percent cover is recorded for all plant species in each plant layer (ground cover, shrub, sapling, climbing woody vines, tree) present in the observation plot. Plant species with a percent cover equal to or less than 1% in a layer should not be included. In addition, any layer with a total percent cover of less than 5% should not be included. Dominant plants within each layer are recorded and classified as being either wetland indicator plant species or non-wetland indicator plants. The wetland plant criterion is met if the number of wetland indicator plant species is equal to or greater than the number of non-wetland indicator plants. The handbook also describes how to determine and document the presence of wetland hydrology at a site. The presence of wetland hydrology needs to be documented in areas where vegetation alone is not presumed adequate to delineate the boundary. It can also be used to overcome the presumption that vegeta- tion alone is adequate for delineating a BVW bound- ary. In those cases where information on wetland hydrology is submitted, it must be used by the issuing authority when verifying a BVW boundary. Also, the issuing authority may require that information on wetland hydrology be submitted to assist in establish- ing a BVW boundary. The wetland hydrology criterion can be met if hydric soils are present within the observation plot. The ^ However, the dominance test procedure can also be used to evaluate all plant species in an observation plot, if this additional information is needed or useful. 28 Wetlands Protection Program Policies (March 1995) BVW Policy presence of hydric soils can be determined by record- ing information on the soil profile. Information on soil color, soil horizons, and indicators of soil satura- tion (such as oxidized rhizospheres, mottles, and concretions or nodules) are helpful in identifying hydric soils. Direct observations of the presence of water should also be noted. Information on wetland hydrology should also be reported on the DEP field data form. Sites where vegetation is not presumed to be adequate to delineate the boundary or sites that have been disturbed will require more detailed analysis. Certain areas have wide transition zones where the BVW boundary is not obvious. Wetland hydrology at a particular site may vary from season to season and direct observations of wetland hydrology may not always be possible. For these sites, the presence of hydric soils and/or other indicators of wetland hydrology together a ith vegetation will need to be evaluated and documented in more detail to establish a BVW boundary" On disturbed sites, soils may be used as the sole criterion for determining a BVW boundary. * Examples of other indicators of wetland hydrology include: h bridge abutments; water-stained leaves; sediment deposits; drift lines rological records; water marks on trees, boulders or .linage patterns; and caddisfly cases. Wetlands Protection Program Policies (March 1995) 29 Non-text page 30 Wetlands Protection Program Policies (March 1995) Appendix A Status Summary of Wetland Protection Program Policies and Guidelines Policy Former Status Current Status Issued Revised 82-1 Policy Deleted 2/16/82 82-2 Policy Deleted 2/16/82 84-1 Policy Deleted 6/26/84 85-1 Policy Deleted 1/24/85 85-2 Policy Revised Policy 1/24/85 3/1/95 85-4 Policy Revised Policy 9/17/85 3/1/95 85-5 Policy Deleted 10/26/85 86-1 Policy Revised Policy 7/11/86 3/1/95 87-1 Policy Revised Policy 12/8/87 3/1/95 88-1 Policy Deleted 3/9/88 88-2 Policy Unrevised Policy 2/29/88 88-3 Policy Revised Policy 2/29/88 3/1/95 88-4 Policy Deleted 4/11/88 88-5 Policy Deleted 4/12/88 88-6 Policy Deleted 9/19/88 89-1 Policy Revised Policy 6/16/89 3/1/95 90-1 Policy Deleted 8/10/90 90-2 Policy Unrevised Policy 8/13/90 91-1 Policy Revised Policy 2/8/91 3/1/95 91-2 Policy Unrevised Policy 3/28/91 92-1 Policy Unrevised Policy 3/3/92 95-1 No Policy New Policy 3/1/95 Wetlands Protection Program Policies (March 95) 31