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Wetlands Protection
Program Policies

- msMENTS

HOV 61987

Depository Copy

husetts

M

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Department of Environmental Quality Engineering

Division of Wetlands and Waterways Regulation

One Winter Street, Boston 02108

S RUSSELL SYLVA
Commissioner

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ton

Gary Clayton, Division Director

ON THE DISTRIBUTION OF DIVISION WETLAND POLICIES

From time t
Regulation
Protection
Unlike regu
Rather, the
decisions,
promote sta
Note: Poli

o time the DEQE Division of Wetlands and Waterways
issues formal policies interpreting the Wetlands
Act (Ch. 131, S.40) and regulations (310 CMR 10.00)
lations, policies do not have the force of law.
y spell out the criteria DEQE will use in making

This guidance will help avoid appeals and will
tewide consistency in wetlands decision-making,
cies are numbered sequentially within each year.

The new policies will be published regularly in the Wetland
Report, the Division's quarterly newsletter.

PUBLICATION: (Cia,855-2a-200-6-87-Cn
Approved by the State Purchasing Agent

Digitized by the Internet Archive

in 2013 with funding from

Boston Library Consortium Member Libraries

http://archive.org/details/wetlandsprotectiOOmass

(■T^

S RUSSELL SYLVA
Commissioner

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Cf tret*

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M E M O R A N D U M

cU

TO: Regional Environmental Engineers
Wetlands Program Staff
Conservation Commissions
Office of the General Counsel

FROM: Gary Clayton, Director c^0^

Division of Wetlands and Waterways Regulation

DATE: July 11, 1986

RE: WETLANDS PROGRAM POLICY 8 6-1: 310 CMR 10.03(3)
Presumptions For Subsurface Sewage Disposal Systems That Meet
Title 5 or More Stringent Local Board of Health Requirements.

The Wetlands Regulations, at 310 CMR 10.0
presumption that a subsurface sewage disposal
complies with the requirements of Title 5 or
local Board of Health requirements, protects
the Wetlands Protection Act (the "Act"). Thi
however, only has effect if none of the compo
system are located within certain resource ar
the Act, and if the leaching facility of the
at least 50 feet from the boundary of those a
distance if required by a local Board of Heal
regulation. Conservation Commissions and the
however, have only limited authority to enfor
local Board of Health requirements because ne
authority to interpret ambiguous language tha
in those by-laws or regulations or to determi
local Board of Health should grant a variance
standards. Therefore, the Department adopts
guidelines for applying the provisions of 310

3(3), establish a

system, which
more stringent
the interests of
s presumption,
nents of the
eas protected by
system is located
reas, or a greate;
th by-law or

Department ,
ce more stringent
ither has the
t may be included
ne whether the

from the local
the following

CMR 10.03(3) :

(1)

Commi

sewag

requi

wet la

there

faile

that

requi

would

10.03

When r
ssion o
e dispo
reraents
nds set

is ove
d to pr
may be
rements

have t
(3) . I

eviewmg
r the De
sal syst

of 10.0
-backs s
rwhelrain
operly r
cons ider

for "pe
he poten
t is nig

a Notice of Intent, a Conservation
partment must determine whether a proposed
era meets the fifty foot wetland set-back
3. Usually. Title 5 issues other. than
hould be left to the Board of Health unless
g evidence that the Board of Health has
eview the case. The Title 5 requirements
ed are limited to those, such as the
re" tests, where a system not in compliance
tial to impair resource areas identified in
hly unlikely, therefore, that a standard

-2-

such as a lot-line set-back requirement should ever be
considered in a wetlands review.

(2) As stated above, neither a Conservation Commission, nor
the Department have the authority to interpret Board of Health
regulations or to decide whether a local Board of Health will
issue a variance from its own regulations. Where a proposed
project meets the requirements 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 Department 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
setback 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, and until a copy of
said permit is sent to the Conservation Commission and the
Department. "

The Conservation Commission or the Department are responsible
for making the wetland boundary delineation 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.

~

S. RUSSELL SYLVA
Commissioner

WILLARD R POPE
General Counsel

On* WvUe* Sfoeel, SSo^o^v 02 408
Oftce c^eneta/t&ounAel, &e/. 292 -5568

M E MORANDUM

"1

TO

Regional Environmental Engineers
Wetland Protection Program Staff
Legal Office

THROUGH: Gary Clayton. Director

FROM: Matthew Watsky. Assistant General Counsel ffJ^J

DATE: November 26. 1985

SUBJECT: Wetlands Protection Program Policy 85-5
Enforcement Orders. Appeal Language

l

This memorandum is to clarify the procedures for the
appeal of Enforcement Orders. The questions to be addressed
are whether Conservation Commission Enforcement Orders are
appealable through the DEQE administrative process or only to a
court; and who may appeal Enforcement Orders issued by the
Department .

First; Conservation Commission Enforcement Orders are not
appealable to the Department. They can only be appealed to the
Superior Court.

The Wetlands Protection Act Regulations, in 310 CMR
10.05(7)(j). provide that Superseding Orders and Super s ec i r.z
Determinations may be appealed for an adjudicatory hearing by
any person specified in 10.05(7) (a). Thus, each Superseding
Order issued by the Department includes the standard appeal
paragraph .

F

The regulations regarding the Department's Enforcement
Orders set forth in 10.08, however, do not refer to
10.05(7)(a). Thus, appeals from the Department'6 Enforcement
Orders are not available to all of the potential appellants
listed in 10.05(7)(a). Only those individuals who fit the
definition of a "party" found in the Department's Rules for
Adjudicatory Proceedings. 310 CMR 1 . 01 ( 2 ) (c ) ( 5 ) may appeal one
of the Department's Enforcement Orders..

The attached form contains appropriate wording for the
Department's Enforcement Order appeal paragraphs.

)

MW/mea
1088A

*

D

D Competed application forms and plans as required by the Act and Regulations shall be filed with the

on or before (date).

and no further work shall be performed until a public hearing has been held and an Order of Conditions
has been issued to regulate said work. Application forms are available at:

D The property owner shaft lake every reasonable step to prevent further violations of the act

D Other (specify)

Failure to comply with this Order may constitute grounds for legal action Massachusetts General Laws Chap-
ter 131 , Section 40 provides:

Whoever violates any provision of this section shall be punished by a fine of not more
than one thousand dollars or by imprisonment for not more than six months or both.
Each day or portion thereof of continuing violation shall constitute a separate offense.

Questions regarding this Enforcement Order should be directed to:

Issued by

Signature(s)

(Signature of delivery person
or certified mail number)

You are heresy notified of your rigr.t to ar. adjuiicatcrv 'r.e=rLrjz ur.ier: the
Massachusetts kzrlrlszr alive Procedure Ac:, G.L. c. 3CA, §1C, regarcir-g this
Er-orceneitt Order. Ir. &c cord =.-*:• s with the 3eLart.-.e:v: ' s Rules for the Ccr.du:t c

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rr* ~ T P — * ' ■=*~' * *" "*'*'■ T — -' ^ — • * ■■ V * *- ^u*»*" — • • -* v - A ~ ••e ^ ~ — —.z. r* * - - r ' * c c ' ^ ' — --"*

— * — . «c-

} — .-.

^

S. RUSSELL SYLVA

~/ trtKf-H of ?(e//fTnr/± nurr y(a/r*«xiyi drUpit/a/iopt
. .. tf^if ^{i'n/*r £//,*</. d/Zoi/o„ f»jr&

MEMORANDUM
TO:

FROM:

DATE:
SUBJECT:

Regional Environmental. Engineers
Wetlands Protection Program Staff
Legal Office

Meriel Hardin, Acting Dire

September 17, 1985

J

Wetlands Protection Program Policy 85-4
Procedures for Amending an Order of Conditions

)

Following the issuance of an Order of Conditions, circumstances sometimes
arise, such as subsurface conditions encountered upon commencement of construction
or "requirements of 'other* state "or. loca-1 permits -issued subsequent- to -the Order, • .
that may require modifications of the plans approved in that Order. To allow
for the smooth operation of the permitting procedure and to avoid unnecessary and
unproductive duplication of regulatory effort, the Department recognizes that it
would noc be reasonable to require a complete refiling of the Notice of Intent
when the changes sought in the Order of Conditions are relatively minor and will
have little or no impact on the interests protected by the Act. Thus, the
process of amending an Order of Conditions is acceptable to the Department as
long as certain procedural safeguards are employed.

In processing an amendment to an Order of Conditions, the .Department recommends
that the following procedures be used for all but the most simple changes, such as
correcting obvious mistakes or typographical errors:

1) The applicant should make a request for an amendment to the
conservation commission either orally at a regularly scheduled meeting
cf the commission or by submitting the request to the commission in •
writing. In either case, a written copy of the request should also be
.forwarded .to the .Department ' s regional office.

2) The conservation commission first makes a determination whether
the requested change is substantial enough to warrant the filing cf a nev
Notice of Intent or whether it is of a relatively minor nature and can

be considered as an amendment to the original Order of Conditions. In
making this .determination, the commission should consider such factors
as whether the purpose of the project has changed substantially, whether
the scope of the project has increased substantially and whether the
potential for adverse impacts to the protected statutory interests will
be increased substantiallv.

- 2 -

•y- .

• •«* •

3) If the commission determines that a new Notice of Intent
is not necessary, the 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, G.L. c. 39, S 23B, to inform the public that the request
for amendment to the Order of Conditions will be considered by the

;■» - •• •■ ■■■*

4) If, after considering the information presented -by the applicant
and any comments received at the public hearing, the commission decides
to issue an amended order of conditions a copy of such order should be
forwarded to the Department's regional office at the time of issuance.
By analogy to the normal appeal procedure of- the original Order of
Conditions, a person aggrieved by the changes made to the amended order,
or the other parties given appeal rights by the Act, may, within ten
days of issuance, request that the Department review the changes made
tc the original Order of Conditions. In that case, until there is a
final resolution of the appeal no work may continue or. these pcrtio-s
of the project not permitted under the original Order of Conditions
but only permitted by the amendment (s) which has been appealed.

MH/mes

i • ••

!)

.« . » . r «

S. RUSSELL SYLVA

Commissioner

fcxectUvve Oucce of WTtAM^o^vntenCac S$ffax&&
Cite Wt*Ue* JSbeet, SRo4&»n 02i08

•^

TO:

FROM:
DATE:

MEMORANDUM

Regional Environmental Engineers
Wetland Program Staff
Legal Office

Roderick Gaskell, Director /] /tfy/tL
January 24. 1985

SUBJECT: WETLAND PROGRAM POLICY 8 5-2

INTERPRETATION OF 310 CMR 10.57(2) (b)
DEFINITION OF ISOLATED LAND SUBJECT TO FLOODING

"Land subject to flooding" has been divided in the
regulations into two different types of areas, those which
flood as a result of water rising from creeks, ponds, rivers,
or lakes, and those which flood due to ponding of run-off or
high ground water. See generally 310 CMR 10.57. 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. §§10.57(1) and 10.57(4) respectively.

One of the pri
isolated land subj
between those area
way and areas wher
occasionally- -pudd
distinguish betwee
larger water resou
of even small fill
flooding problems
are only locally s
and flood preventi
regulations provid
land areas that fu
to ensure consiste
regulators across
certainty for land
review they should

ncipal purpo
ect to flood
s that serve
e small amou
les, in effe
n those area
rce system--
ings can lea
over the ent
ignificant t
on. By maki
e an appropr
nction in di
nt applicati
the state, p

owners with

expect .

ses of the explicit def
ing ("ILSF") is to diff

these interests in a s
nts of water may collec
ct. A second purpose i
s that are important pa
for which the cumulativ
d incrementally to seri
ire f loodplain--and tho
o the interests of stor
ng these distinctions,
iate degrees of protect
fferent ways. A third
on of the distinctions
roviding a greater degr

regard to the standard

inition of

erentiate

ignificant

t

s to

rts of a

e effects

ous

se that

in damage

the

ion to

purpose is

by

ee of

s of

^

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.
As in certain other areas of the regulations (see, e.g. Wetland
Policy Memorandum 85-1), the selection of numerical criteria in
an effort to provide specific guidance has raised subsidiary
technical questions that were not critical when the standards
for determining jurisdiction were less clearly defined. This
memorandum will set forth, for the guidance of land owners,
developers, and regulators, the Department's interpretation of
specific portions of it6 regulations defining an ILSF.

(l)"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 literal exclusion of all sources of flow,
chanelized or otherwise, into a basin. Obviously, any basin
must have an "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 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 water-body; that
is, "inlet" is only used to distinguish ILSF from a bordering
land subject to flooding, which has such a hydrologic
connection. A different set of performance standards,
appropriate to the flood storage function within the larger
system, applies to the bordering land subject to flooding.
Thus, a basin which receives a channelized flow generated by
run-off 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 area which at least once a year confines standing
water ...". "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 in 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 §§10. 57 (2 ) (b) (3 ) and (a)(3). except that
the calculation should be based on a 24-hour event with a
one-year return period.

(3)Boundary of ILSF. The boundary of an ILSF is defined in
§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 a 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 surface of the
ILSF basin is impervious, but should use standard methodologies
to account for infiltration within the contributing watershed
based on the relative proportions of previous and impervious
surfaces .

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 threshhold
determination of jurisdiction. If the calculations 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 threshhold, 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.

during- that event. As
at a given elevation a
within the basin above
should generally repre
water will continue to
despite the presence o
ILSF is either the ele
"outlet" and flow out
inundation resulting f
outlet. The calculati
ILSF basin is impervio
to account for infiltr
based on the relative
surfaces .

indicate
uch that

that ele
sent the

be conta
f an outl
vation at
of a ILSF
roro a 100
ons shoul
us, but s
ation wit
proportio

d above, if
water will
vation, the
boundary of
ined above
et ) . Thus .
which reta
basin, or
-year storm
d assume th
hould use s
hin the con
ns of previ

there is an outlet
not be confined

outlet elevation

the area (unless
that elevation

the boundary of the
ined waters reach an
the area of

if there is no such
at the surface of the
tandard methodologies
tributing watershed
ous and impervious

It is important to note that two sets of
be relevant for determining the existence and
ILSF. First, the 1-year storm calculation is
determination of jurisdiction. If the calcul
the requisite volume of water is confined wit
basin, the basin is an ILSF. Second, in maki
determination for areas that meet or exceed t
100-year storm calculation or the location of
used. in both cases, the calculations should
infiltration within the ILSF basin itself, bu
standard assumptions with respect to infiltra
contributing watershed.

calculations may

extent of an

a threshhold
ations show that
hin a particular
ng a boundary
he threshhold, the

an outlet may be

assume no
t may make
tion within the

-^;

S. RUSSELL SYLVA

Commissioner

wxectUvve Guoce of (bitAKsKynrnerUcu S-Uftcu-xi
One WvrUe* Jkeet, S&oUoit 02108

MEMORANDUM

TO: Regional Environmental Engineers
Wetland Program Staff
Legal Office

FROM: Roderick GasJcell. Director /r t/'^A'*^-^

DATE: January 24, 1985

SUBJECT: WETLAND PROGRAM POLICY 8 5-1

INTERPRETATION OF 310 CMR 10.55(2) (C)
VEGETATION "IDENTIFIED IN THE ACT"

The definition of Bordering Vegeta
310 CMR 10.55(2). In part, that defin
"[t]he boundary of Bordering Vegetated
within which 50 percent or more of the
consists of the wetland plant species
The reference is to the plant species
paragraphs of M.G.L. c. 131 §40 in whi
bordering vegetated wetlands (e.g. bog
marshes) are defined by vegetational c
the statutory definitions, a list of p
is preceeded by a phrase that is essen
following: "a significant part of the
is made up of, but not limited to nor
all, of the following plants or groups

ted Wetlands is found at
ition provides that

Wetlands is the line

vegetational community
identified in the Act",
identified in numerous
ch various types of
s, swamps, wet meadows,
ommunities. In each of
lant species and genuses
tially equivalent to the

vegetational community
necessarily including

of plants . "

Diff i
compounde
plants ar
are gener
is, plant
The lists
than some
§10.55. t
not conta

signif ica
where ind
present ,
to be pre
establish

culty in intrerpreting this language has been
d by the fact that the lists of plants and groups of
e not exhaustive. The lists omit some species that
ally recognized as excellent wetlands indicators, that
s that grow exclusively (or nearly so) in wetlands,
also include some species that are poorer indicators
of the species omitted. Prior to the adoption of
his issue was not crucial because the regulations did
in a numerical interpretation of the phrase, "a

nt part of the vegetational community". In locations
icator species that were not listed oy name were
species that were specifically listed were also likely
sent, and jurisdiction over the area was often
ed.

Because §10.55(2)(c) establishes a numerical limitation, it
has become essential to interpret the statutory language
defining wetlands areas. The Department therefore interprets
the statutory phrase "not limited to" as incorporating plant
species or groups similar to those listed by name, insofar as
such non-listed species or groups are at least as likely as
those specifically named to indicate wetlands. Such plants
serve essentially the same wetland functions as those listed by
name, and thereby serve the interests of the Act in essentially
the same manner. The Department believes that the legislature
did not intend to limit the definition of wetlands to the
technical knowledge then available, that the legislature
intended that plants exhibiting similar characteristics to
those identified should be considered, and that the legislature
employed the words "not limited to ... the following plants or
groups of plants" to indicate this intention. Accordingly,
plants generally accepted as indicative of wetlands, and
identified as such in generally accepted scientific or
technical publications, may be considered to be wetland plant
species "identified in the Act" in determining the boundary of
bordering vegetated wetlands.

It is important to recognize that the hydrologic and
topographical elements of the definition of bordering vegetated
wetlands, set forth in the Act and in §10.55(2) (a) and (b).
must still be satisfied. These requirements are unaffected by
this interpretation.

Document 0048W

WETLANDS PROGRAM POLICY -84-1

Recommended Procedures for
Enforcement of the Wetlands Protection
Act, Mass. G.L.Ch. 131 s.40
for Conservation Commissions

Massachusetts Dept. of Environmental Massachusetts Dept. of the

Quality Engineering Attorney General

Division of Wetlands and Waterways Regulation Environmental Protection Division

One Winter Street One Ashburton Place

Boston, MA 02108 Boston, MA 02108

(617) 292-5695 (617) 727-2265

In 1972 the Wetlands Protection Act ("the Act") was amended to give the
conservation commission the initial responsibility for the administration of the
statute. In addition to issuing regulatory Determinations of Applicability, Orders
of Conditions, Extensions and Certificates of Compliance, a conservation commission
is in an excellent position to take enforcement actions. We recommend the
following enforcement procedures to help conservation commissions obtain compliance
with the Act.

Step! Determination of a violation and site inspection

Failure to comply with a Determination of Applicability or an Order of
Conditions and work in areas subject to the Act without a valid Order of Conditions
constitute violations of the Act. Violations can include, among others, the failure
) to file a Notice of Intent, to observe a particular condition or time period
specified in a Determination or Order, to record an Order in the Registry of Deeds
or to obtain an Extension Permit. The DEQE and conservation commissions are
equally authorized and responsible for enforcing the Wetlands Protection Act. This
means that :

A. A conservation commission, at its discretion, can enforce a DEQE
Order. The DEQE regional office should be notified as quickly as
possible of any violations of Superseding Orders. If DEQE supports
enforcement actions by the conservation commission, but is unable
to respond quickly enough or at all, the commission should proceed
promptly with its own enforcement action.

B. The DEQE, at its discretion, can enforce a conservation commission
Order. The State may take enforcement action if the person requesting
such action has reasonably documented improper or no action by the
commission, or if requested to act by the commission for good cause.
DEQE encourages commissions to enforce their own Orders.

C. Both DEQE and the conservation commission can pursue a violation
where work is being done in an area subject to the Act without a
valid Order.

Commissioners or their agents, upon learning of a violation, should promptlv
visit the site, take pictures and record relevant data such as location, the nar.es
s of equipment operators, pertinent license plate numbers, the estimated type and
-^ amount of fill, water levels, etc. Photographs should show the extent and type of
violation and have the time, date and location legibly written on the back along
with the photographer's name, address and phone number.

-2-

J Conservation commission members, their agents, officers and employees have

the right to enter upon open fields, woods and wetlands without a warrant to
carry out their statutory responsibilites ; however, it is good policy to contact
the property owner or the person in charge of work at the site before entering
onto the land to give notice of the site inspection. Because some property
owners are not aware of this inspection authority, commission members may find
it appropriate on occasion to be accompanied by a police officer when inspecting
a site.

Step 2. Request for Compliance and Enforcement Order

Depending on the extent and seriousness of the violation, the conservation
commission may decide to proceed with varying degrees of formality.

A. Request for Compliance

If the violator is simply unaware of the law and will comply once
notified, an informal verbal request for compliance might be made
before issuing an Enforcement Order.. Or, if no activity is taking
place at the moment, but. illegal activities have taken place, a
a letter requesting compliance may be suitable. If no response is
made, an Enforcement Order should then be sent. It is essential
to document each action taken.

B. Enforcement Order

If no response is made to the request for compliance or if work is
taking place and there is an immediate need to stop the activity, the
conservation commission should issue an Enforcement Order. See Form 9
in the Wetlands Regulations (310 CMR 10.99). An Enforcement Order
constitutes a formal notice of violation and must be signed by a
majority of the commission. In a situation requiring immediate action,
an Enforcement Order may be signed by a single member or agent of the
commission if the Order is ratified by a majority of the members at
the next scheduled meeting of the commission. The Enforcement Order
should be delivered by a reliable method such as certified mail (return
receipt requested) or hand delivery. Police officers are sometimes
used to deliver them.

Step3. Court action by local authority

If a violator ignores the Commission's Enforcement Order, the conservation
commission should seek judicial enforcement.

A. Civil Action

Ask Town Counsel or the City Solicitor to file a Complaint in Superior
Court on behalf of the municipality against the violator of the Act.
When the commission believes that Town Counsel or the City Solicitor
is not enthusiastic about enforcing the Act, the request should be made
in writing setting forth the reasons court action is warranted and a
date by which you would like the complaint filed. A realistic time

-3-

span within which the town's or city's attorney should file the
Complaint is 10 days to 2 weeks. In cases where continuation of
the activity will cause irreversible harm, ask Town Counsel to file
a Complaint immediately.

In situations involving valuable wetland resources where serious,
irreversible alterations are occurring, Counsel should be asked to
seek a Temporary Restraining Order. A T.R.O. can be issued immediately,
without notice to the violator. It remains in effect no more than 10
days, however, and the parties must appear in court to have a T.R.O.
extended to a Preliminary Injunction, which continues until trial.

A Complaint which remains unresolved leads to a trial. Since a full
trial could be delayed in many counties because of crowded court
dockets, counsel should be asked to seek a Preliminary Injunction from
the Court which orders an immediate halt of all illegal wetlands
alterations on the subject property. Obtaining a Preliminary Injunction
can involve several days because the defendant must be given notice and
an opportunity to appear in court.

Both a Preliminary Injunction and a Temporary Restraining Order can be
requested only in conjunction with the filing of a Complaint. Model
Complaints are available from the Attorney General's Office if needed
by Town Counsel or City Solicitor.

To file a Complaint. Counsel for the municipality will have to be able
to demonstrate that a violation has occurred. Therefore, the commission
should provide him/her with the following:

1. Photographs;

2. Statement (s) from commission members or others who have
observed the violation, incorporating the labeled photo-
graphs and authenticating them as a "fair and accurate
representation" of the property as they saw it; and

3. Copies of the Enforcement Order and any other relevant
correspondence .

B. Criminal Action

While a civil action is more appropriate for achieving remedial results
such as the restoration of a site, criminal action is better suited for
achieving punitive results (fines or imprisonments) . In cases of
flagrant violations, commissions may wish to proceed in criminal court.
A sympathetic District Court can be helpful to the wetlands protection
efforts of a conservation commission.

A criminal action may be initiated by any person, including the
conservation commission. The action is initiated by submitting to the
^ Clerk of Court a statement of the violation which specifies the:

J

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-4-

) .

1. type and extent of the violation;

2. name and address of the violator;

3. location of violation:

4. date of violation; and

5. statute which has been violated (G.L. ch. 131, § 40) .

Indicate that this statement has been approved by vote of the conservation commission
and include names and addresses of witnesses to the violation plus clearly identified
photographs. Also include the Enforcement Order and any other relevant documentation

Step 4. State assistance in enforcement

If Town Counsel or the City Solicitor fails to respond to the written request
of a conservation commission for legal enforcement action, or if the conservation
commission is unsuccessful in enforcing a State Superseding Determination or Order,
the commission can seek help from the State. A letter requesting support in an
enforcement action should be sent to the DEQE Regional Environmental Engineer with
a copy to the Environmental Protection Division of the Department of the Attorney
General. Complete documentation including copies of the Enforcement Order and
correspondence with counsel should be enclosed. When requesting this assistance,
it is important that the commission demonstrate that it has made every effort
to deal with the problem at the local level.

There are a number of factors that the State will take into consideration in
deciding whether or not to pursue enforcement action, including the seriousness
of the violation, the degree of environmental harm, the likelihood of preventing
future violations, the availability of enforcement resources and the probability
of achieving a successful result. If DEQE determines litigation is necessary,
the case will be referred to the Attorney General's Office. Such referral means
that, should no settlement be reached, conservation commission members and other
local officials are prepared to do the work required to go to court.

(^AvE&v-n^i 0\3-C^**?i

ANTHONY D. CORTESE, Sc.D.
Commissioner

Department of Environmental
Quality Engineering

STEPHEN IfLEONARD

Chief, Environmental Protection

Division
DeDartment of the Attornev General

_Q»~>" it iif?

date?

*
/

ANTHONY 0. CORTESE, Sc D.
. Commissioner

JviMMovi Of WeuamcL zr/>tc/ecCu>n
'WlnU* Jhnet, SftoUon 0210S

Onz.

(677) 292-5579

MEMORANDUM

TO:

Northeastern and Southeastern Regional Engineers and
Coastal Wetlands Staff

•FROM:

DATE:

- ^.

SUBJECT:

Roderick Gaskell, Direc
Division of Wetlands Protection

February 24, 1982

Variance and Salt Marsh Policies,
(Policy No. 82-1 and 82-2)

Coastal Wetlands Regulations

RG : cam

CC: D. Fierra, Deputy Commissioner
CZM

ANTHONY D. CORTESE, Sc. D.
Commissioner

W&eciUvi<e Office of <hrvuv><4>n/rri&n/cU Siffcuni.
-Defia*6m&nt of fanwrowTrven/cU !2ua£/y. SftaoTvee^ima

'Winter Jkxeet, &>oUon 02108

ONE

MEMORANDUM

TO: Regional Environmental Engineers
Wetland Program Staff
Legal Office

FROM: Roderick Gaskell, Director rf^&f

DATE: February 16, 1982

SUBJECT: WETLANDS PROGRAM POLICY 82-1

STANDARDS FOR ASSESSING A REQUEST

FOR A VARIANCE UNDER SECTION 36

OF THE COASTAL WETLANDS REGULATIONS, 310 CMR 10.36

Section 36 of the Regulations for Coastal Wetlands, 310 CMR 10.36,
provides :

The Commissioner may waive the application of any
regulation in Part II when he finds, on the basis
of and following an adjudicatory hearing, that such
variance will provide the same degree of protection
of the interests of the Act as application of these
regulations and that the variance is necessary to
accommodate an overriding community, regional,
state or national public interest.

As required by Section 36, in order to grant a variance the
Commissioner must find based on an adjudicatory hearing that"

(1) the alternative for which the variance is requested provides
protection to the interests of the Act equal to that provided by

■V>a

overncir.

mmunity, regional, state or national public interest; and (3) the
riance is necessary in order to accommodate the particular public
terest served by the project.

On April 7, 1981, the Commissioner issued the first decisior
under this section in the case of DEQE Wetlands File No. 35-52,
(Nantasket Associates - Eay View Towers). In that decision, the

three criteria to be evaluated ir. date:

►J

Commissioner outlined the

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-2-

would be applied in future cases. Although no one but the
Commissioner is empowered to grant a variance under Section 36,
it is important that the Wetlands Staff be aware of the applicable
standards since they will have to advise the Commissioner on future
variance requests as well as respond to inquiries by applicants,
Conservation Commissions, and the general public. Thus, what
follows is an explanation of each of the variance criteria which
the Department will consider in evaluating a request for a variance.

For the first requirement - the provision of protection equal
to that provided by the regulations - the resource area impacted
must be identified, along with the interests of the Act protected
by that resource area. Then, the applicant for the variance must
demonstrate that the alternative applicable means of protection
will protect the interests of the Act to the same degree as the
coastal regulations, and the alternative must be real, specific,
permanent and enforceable.

Whether the second requirement - the service of an overriding
public interest - has been satisfied requires a finding that the
project be constructed by or under the auspices of a public authority
or a private entity found to be serving a public function. In addition,
for the project to satisfy the overriding public interest requirement,
the public interest project must be one of unusual merit in order to
override the applicable coastal regulation.

As for the third requirement - the necessity for the variance -
there must be a showing that the nature of the project is such that
it cannot be constructed sc as to accommodate the overriding public
interest unless a variance is granted. In making this showing, con-
sideration should be given to alternative project locations and designs,
including divisable segments, size, and site plans. The inquiry into
alternatives need not be limited to modifications of the project as
originally proposed by the applicant, but shall explore other reasonable
options and alternatives which could avoid non-compliance with the
applicable coastal regulation, including alternative means of satis-
fying the overriding public interest unrelated to the original proposal.

As stated in the commentary to Section 36, the variance provision
is intended to be employed only in rare and unusual cases, and the
applicant requesting the variance has the burden of satisfying each
element of the three requirements. Kcreover, the mere satisfact icr.
of these minimum requirements does not mandate the granting of a
variance, for Section 36 provides that the Commissioner may waive
the application of any regulation in Part II. Consequently, the ultimat
variance decision is subject to the descretion of the Commissioner,
even if the findings required by Section 36 are resolved in favor
of the applicant requesting the variance. In exercising his discre-
tion, the Commissioner will consider applicable administrative and
executive orders, including the policies embodied in the Massachusetts
Coastal Zone Management Program.

ANTHONY D. CORTESE, Sc. D. SU*iW of WerfawL <5P*0&C&0*1

Om TttnJe* JfreeS, SQo^rv 02108

Commissioner

MEMORANDUM

TO: Regional Environmental Engineers

Wetland Program Staff
Legal Office

FROM: Roderick Gaskell, Director/; C?

■ •

DATE: February 16, 1982

SUBJECT: WETLAND PROGRAM POLICY 82-2

APPLICABILITY OF SECTION 32(5)
OF THE COASTAL WETLANDS
REGULATIONS, 310 CMR 10.32(5).

The general performance standard applicable to projects
affecting a salt marsh is Section 32(3) of the Regulations for
Coastal Wet lands, 310 CMR 10.32(3), which states, in part:

A proposed project in a salt marsh, on
lands within 100 feet cf a salt marsh, or
in a body of water adjacent to a salt marsh-
shall not destroy any portion of the salt
marsh and shall not have an adverse effect
on the productivity of the salt marsh.

Section 32 (5) of the regulations, 310 CMR 10 .32 (5 ), modifies
that regulation and provides:

Notwithstanding the provisions of Section
32(3), a project which will restore or
rehabilitate a salt marsh, or create a
salt marsh, may be permitted.

This latter section is applicable only to projects, the prima
purpose of which is the restoration, rehabilitation or creation
of a salt marsh, but the accomplishment of which may involve minor
or temporary adverse effects on portions of the existing. marsh.
It does not permit the destruction of a salt marsh incidental to
construction in coastal areas even if compensatory measures are
proposed tv the aoolicant.

-2-

Thus, for coastal projects which are proposed for purposes
other than salt marsh restoration, rehabilitation or creation,
and which would destroy a salt marsh, or a portion thereof,
Section 32(3) would apply even if measures, such as relocation
of the salt marsh or creation of a new salt marsh, were proposed
in an attempt to compensate for the destruction of the marsh.
Section 32(3) requires the issuance of an Order of Conditions
prohibiting the destruction of a salt marsh in these situations;
although under Section 36, the applicant may request a variance
from the Commissioner if the project meets the applicable standards

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