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Massachusetts Department of Environmental Protection
Division of Wetlands and Waterways
An Enforcement Manual for
Wetlands Protection in
Massachusetts
#«MMftNVtfW.TW OF MASSACHUSETTS
iwiptuOUSE-99 MAIN STREET
^ORTHAMHON, MASS. 01060
This publication has been prepared for use in DEP's ongoing technical assistance
and training program for Conservation Commissions.
Revised1994
#112
DATE DUE
STOR KFM 2754 .E536 1994
An enforcement manual for
wetlands protection in
THIS MAY BE KEPT
7 DAYS ONLY
IT CANNOT BE RENEWED OR TRANSFERRED
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE LAW LIBRARY
COURTHOUSE - 99 MAIN STREET
NORTHAMPTON, MASS. 01060
An Enforcement Manual for Wetlands
Protection in Massachusetts
This publication is the 1 994 update of the Department of Environmental Protection, Division of Wetlands and
Waterways' Enforcement Manual, originally published in 1 990. The revisions that have been made to the docu-
ment reflect recommended changes to enforcement techniques and procedures over the last several years. The
manual may be used as a supplement to the Division's videotape, "Enforcement of the Wetlands Protection Act."
Revised in 1994 by:
MA Department of Environmental Protection
Bonney Cashin, Office of General Counsel
Elizabeth Kimball, Office of General Counsel
Carl Dierker, Acting Director,
Division of Wetlands & Waterways
Environmental Strike Force
Anne Kelly, Director
Originally Prepared in 1990 by:
McGregor. Shea & Dolinor. P.C.
18 Tremont Street, Suite 900
Boston, MA 02108
Author: Lois Bruinooge
Research: Susan Brent
Reviewed by: Gregor McGregor
Commonwealth of Massachusetts ~
William F. Weld, Governor
Executive Office of Environmental Affairs
Trudy Coxe, Secretary
Department of Environmental Protection
DanietS. Greenbaum, Commissioner
Bureau of Resource Protection
Arleen O'DonnelL Asst. Commissioner
Division of Wetlands and Waterways
Carl F. Dierker, Acting Director
DEP
MA Department of Environmental Protection
Division of Wedands and Waterways,
One Winter St, Boston, MA 02108 (617)292-5695
Digitized by the Internet Archive
in 2015
https://archive.org/details/enforcementmanuaOOmass
DEP ENFORCEMENT MANUAL FOR CONSERVATION COMMISSIONS
What To Do First; What to do Next
TABLE OF CONTENTS
Quick Reference Guide to the Enforcement Manual A-B
I. INTRODUCTION 1
A. Purpose 1
B. Practical Approach 1
C. Acknowledgements 1
II. WHAT TO DO FIRST 2
A. Goals and Priorities 2
B. Tactics and Strategies 3
C. Set the Stage for Easy Enforcement 3
1. Make sure your conservation commission is
respected 3
2 . Forge communication links with other
municipal boards and departments now,
well before your next enforcement crisis 4
3 . Educate the general public 4
4 . Use the media effectively 5
5 . Write Orders of Conditions that are
virtually self -enforcing 5
6 . Respond swiftly and clearly to any
violations that do occur 5
III. WHAT TO DO NEXT 6
A. Jurisdiction 6
B. Spotting Violations 9
1. Site Visits 9
a. Grant Decision 9
b. Landowner Consent/Civil vs. Criminal 11
c. "Public View" 13
2 . Obtaining Search Warrants 14
a. Who Can Obtain a Search Warrant 14
b . Standards for Obtaining a Search Warrant . 14
i
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Publication No. 17509 - 108- 350-2794 - 2.27 - C. R.
Approved by: Philmore Anderson III, State Purchasing Agent
C. Documenting the Facts 16
D. Taking Photos 16
E. Keeping a Log 17
F. Informal Enforcement 18
1. Phone Calls 18
2 . Meetings with Violators 19
3. Correspondence 20
G. Formal Enforcement 21
1. Violation Notices 21
2 . Enforcement Orders 21
a. Drafting the Enforcement Order 22
b. Issuing the Enforcement Order 23
3 . Revoking Orders of Conditions 24
4. Non-Criminal Citations Using Local Bylaws .... 26
10/93 Update Note 26
a. Implementing Section 21D 27
b. Issuing the Citation 28
c. Collecting the Fine 28
IV. ESCALATING THE MATTER 30
A. Suing the Violators 30
1. Statute of Limitations 30
2. Selecting Criminal vs. Civil Enforcement .. 31
B. Civil Court Action 33
1. Filing the Complaint 33
2. Temporary Restraining Order (TRO) 33
3. Injunction 33
C. Criminal Prosecution 35
1. Application for a Criminal Complaint .... 35
2. Prosecuting the Complaint 35
3. Criminal Penalties 36
ii
V. INVOLVING OTHER AGENCIES IN ENFORCEMENT ACTIVITIES .... 37
A. Involving DEP 3 7
B. Involving the Environmental Strike Force 38
C. Involving Local Boards 38
1. Board of Health 38
2. Planning Board 3 8
3. Building Inspector 39
4. Zoning Board of Appeals 39
VI. LIABILITY FOR ENFORCEMENT MISTAKES 40
A. Personal Liability 40
B . Mandamus 40
C. "Takings" 41
VII. OTHER PROGRAMS RELEVANT TO WETLANDS PROTECTION 43
A. Chapter 91/Waterways Regulation Program 43
B. Coastal and Inland Wetland Restrictions 43
C. Massachusetts Environmental Policy Act (MEPA) .... 44
D. Administrative Penalties 45
E. Water Quality Certification 45
F. Federal Clean Water Act, Section 404 46
G. Public Nuisance Suits 46
VIII. PRIVATE REMEDIES 48
A. Nuisance Suits 48
B. Citizen Suits 48
iii
APPENDIX
A. Order of Conditions (Administrative and Monitoring
Paragraphs)
B. What to Bring on Site Visits: A Suggested Checklist
C. Chapter 388, Acts of 1990 (amendment to MGL c.131, §40)
D. Civil Administrative Search Warrant Forms (application,
affidavit, administrative warrant, and return)
E. Inspection/Violation Report
F. Violation Notice
G. Enforcement Order (with Restoration Clause)
H. 21D Bylaw for Non-Criminal Citation
I. Citation under 21D
J. 2 ID Procedures Guide
K. Application for Temporary Restraining Order,
Preliminary Injunction and Permanent Injunction
L. Affidavit for Application for Temporary Restraining
Order, Preliminary Injunction and Permanent Injunction
M. Application for a Criminal Complaint
N. Sample Site Inspection Letter
CONTACT/REFERENCE LIST
iv
QUICK REFERENCE GUIDE TO THE ENFORCEMENT MANUAL
If a violation is reported to your conservation commission:
Check files: Is site governed by an Order of Conditions?
yes
Does Order give conservation
commission permission to enter
property for site inspection?
See pages 9-13 and Appendix A.
no
Can landowner permission
be obtained to inspect
site?
If yes, notify landowner of visit and inspect site.
See pages 9-13, 16-17, and Appendix B, N.
If no, inspect site from public property or from
neighboring properties or obtain a search warrant .
See pages 9-17 and Appendices B-D.
Determine if a violation of the Wetlands Protection Act has
occurred :
Is there a violation over which the Commission has jurisdiction?
See pages 6-8.
yes no
Seek compliance through techniques No enforcement action
that will get results. necessary.
Start with informal, less confrontational
methods such as phone calls, meetings,
and written notices of the violation.
See pages 18-20 and Appendices E-F.
Does violator respond to your enforcement efforts?
yes no
Complete paperwork and monitor
activity to ensure compliance.
See page 17 .
Seek compliance through
more formal options as
listed on the next page
of this Reference Guide .
A
QUICK REFERENCE GUIDE TO THE ENFORCEMENT MANUAL
If more serious enforcement action is necessary:
Issue an Enforcement Order. See pages 21-23 and Appendix G.
and/or
Consider Revoking the Order of Conditions. See pages 24-25
and/or
Issue a non-criminal citation using a local bylaw.
See pages 26-29 and Appendices H-J.
If even more serious enforcement action is necessary:
Have you exhausted all town resources?
yes
Notify DEP and request enforcement
assistance. See page 37.
and
no
Initiate legal
proceedings . Ask town
counsel to file a
civil complaint seeking a
TRO and an injunction that
will bring about
compliance .
See pages 30-34 and
Notify other agencies that may be
able to offer enforcement assistance. Appendices K-M.
See pages 43-46.
and
Request assistance from concerned
citizens. See pages 46-48.
and/ or
File a criminal complaint .
Seek assistance from your
police and the county DA.
See pages 35-36 and
Appendix M.
and
Notify other town agencies
that may be able to offer
enforcement assistance .
See pages 38-39.
B
DEP ENFORCEMENT MANUAL FOR CONSERVATION COMMISSIONS
What to Do First; What to do Next
I . INTRODUCTION
A. Purpose
The purpose of this manual is to assist conservation
commissions and other municipal officials in protecting
wetland resources. Enforcement is the key to an effective
local wetlands protection program. Consistent, strong
enforcement policies will reduce commission headaches in the
long run and ultimately prevent deterioration of
Massachusetts' wetland and water resources.
B. Practical Approach
This step-by- step manual will guide you through the maze of
enforcement options, from the simplest, least threatening,
and least expensive methods to more complicated and time
consuming court actions. An orderly progression of
enforcement techniques, designed to ensure compliance with
as little hassle as possible, is presented along with the
advantages and disadvantages of each method. The manual
also contains practical tips drawn from experienced
conservation commissioners, DEP staff, and attorneys who
have successfully prosecuted wetland violations in court .
C. Acknowledgments
We would like to thank the following agencies and
organizations for their assistance in producing this manual :
the Massachusetts Association of Conservation Commissions;
Middlesex County District Attorney's Office, for use of
material from the Handbook on Criminal Enforcement of the
Wetlands Protection Act; North Andover Conservation
Commission; Attorney General ' s Office; Executive Office of
Communities and Development, for use of material from A
Guide to the Procedures for Implementation of the Non-
criminal Method of Disposition of Violations of Municipal
Ordinances, Bylaws, Rules and Regulations; and Massachusetts
Society of Municipal Conservation Professionals.
2/94
Enforcement Manual /Page 1
II. WHAT T .0 FIRFT
A. Goals and Priorities
The goal of wetlands enforcement is to secure prompt and
continued compliance under the Massachusetts Wetlands
Protection Act and if applicable, your community's local
bylaw. Sounds easy, right? It can be - if your
conservation commission knows the law, sets enforcement
priorities, develops an enforcement plan, and sticks to it.
Enforcement does not have to be an overwhelming, frustrating
task if your commission uses proven strategies that work.
Commissions can and should act before a crisis to make
enforcement easier in the future. Your commission will find
itself in an endless tangle of paper, with less than
adequate results, if the only response to a wetland
violation is to issue an Enforcement Order and hope for
compliance .
The first step is to spend part of your next commission
meeting listing your most pressing enforcement problems. Do
you spend months debating what enforcement steps, if any, to
take? Do you spend week after week listening to homeowners
tell you they didn't know their backyards were wetlands?
Did your last Enforcement Order fail to elicit a response
from the violator? Did the selectmen turn down your request
for town counsel's assistance because they didn't understand
what you were talking about?
Try to make sense of these problems by analyzing their
cause . Are you having trouble preventing violations because
people simply do not know the law? Or are violations
flagrant because the local development community isn't
afraid of getting caught? Do you spend more time than
necessary on wetlands enforcement because no one on the
commission knows what options are available, and legal? Is
your commission so overwhelmed that small violations can't
be corrected before they become serious problems?
Take these insights and turn them into priorities for
action. Write them down - it's the start of your Enforcement
Plan.
* Top priority is to prevent violations from occurring in
the first place.
* Second priority is to remedy serious violations quickly
if they endanger the health, safety, and welfare of the
community, or cause irreparable harm to the
environment .
2/94
Enforcement Manual /Page 2
* Third priority is to catch minor violations early, so
they don't become serious.
B. Tactics and Strategies
All tactics and strategies flow from the ultimate
enforcement goal - prompt and continued compliance - and
from the priorities your commission has identified.
Assuming your commission's top priority is to prevent
wetland violations from occurring in the first place, the
following tips and methods can and should be implemented
now. Time spent today implementing these suggestions will
be more than repaid in the future as your commission reaps
the benefits of good planning and efficient techniques. Most
of the suggestions in this section can be incorporated into
the commission's routine with little or not additional cost.
Make sure that whatever strategies seem best for your
community get written into an Enforcement Plan. This "Plan"
doesn't need to be very long or formal - a one-page outline
is fine - but by setting your goals, priorities, and
strategies down on paper, you already will have made
enforcement easier by letting the community know you are
serious .
C. Set the Stage for Easy Enforcement
1 . Make sure your conservation commission is respected.
Start by conducting commission affairs in a professional,
business-like manner. This will let the community know that
you are serious about wetlands protection and about
enforcement of wetland laws . Keep detailed minutes of
commission meetings and site visits. Tape record each
meeting. Have agendas available for members of the
audience. Invite audience participation when appropriate,
but don't lose control of the meeting.
Be consistent if and. when you do take enforcement actions.
Each commission member should be well-educated as to his/her
responsibilities and limitations under the law. Don't shoot
from the hip - cite from the applicable law, regulation, or
policy to justify your decisions. Never try to extend the
authority given commissions by law.
Don't make idle threats, but be willing to escalate when
necessary to prevent serious harm to the environment and to
send a strong message to flagrant violators that their
actions will not be tolerated.
2/94
Enforcement Manual /Page 3
Appoint one commission member as the "Enforcement
Coordinator" for your community. This person should be
familiar with the options presented in this manual and feel
comfortable enough to take charge when enforcement is
needed. The Enforcement Coordinator should be the main
contact person for commission enforcement actions.
2 . Forge communication links with other municipal boards and
departments now, well before your next enforcement crisis.
Explain to your selectmen and, especially, town counsel, the
nature of wetlands protection, the type of violations
encountered, and the typical need for fast action.
Apologize in advance for short notice in emergencies, and
give them copies of the Wetlands Protection Act and
Regulations, your local wetland bylaw, and a copy o this
Enforcement Manual. Also, be sure to show them a copy of
your Enforcement Plan, and let them know you take your
responsibilities very seriously.
Ask the planning board, board of appeals, and board of
health for fifteen minutes of time at their next meetings so
that you can make a short presentation about wetlands
protection. Provide board members with handouts describing
wetland resources so that they can alert you to possible
violations. Brochures summarizing the Wetlands Protection
Act are available from the Massachusetts Association of
Conservation Commissions (MACC) and the Massachusetts
Audubon Society. (See Contact /Reference List) . Meet with
municipal staff, such as the building inspector, engineers,
and road department to familiarize them with wetland issues.
Explain to the police chief when police services might be
needed to assist the commission in enforcing wetland laws .
The alternative is to cram this preparation into a few short
minutes or hours when enforcement is imminent .
3 . Educate the general public.
Start building a foundation today of community-wide
awareness . Townspeople will be more likely to support your
efforts if they know that you exist and understand what you
are trying to accomplish. Well-informed neighbors can alert
you to potential violations, and will support your request
for the resources necessary to do the job right. General
awareness within the community will prevent many of those "I
didn't know I couldn't put my swimming pool in a wetland"
violations .
2/94
Enforcement Manual /Page 4
Publicize your activities, meetings, and site visits. Visit
neighborhood groups, garden clubs, and civic organizations
for short presentations to explain the work of the
conservation commission. Get involved in the school system
with river cleanups, nature walks, and other activities
geared toward school children and their parents.
4 . Use the media effectively.
One of the best ways to educate the public is to get
favorable press coverage. Invite members of the local press
to cover your meetings. Designate a commission member to be
responsible for sending meeting agendas to local reporters,
highlighting those items that might be of interest.
Compiling addresses on reproducible, peel -off label sheets
makes this job easier. It is also a good idea to submit
feature articles on wetland issues and the activities of the
conservation commission. Write letters to the editor, and
suggest topics for formal editorials. Be patient with
inexperienced reporters and explain your duties under state
and local law again and again.
5 . Write Orders of Conditions that are virtually self-
enf orcinq .
Many violations can be prevented if the developer-contractor
has a clear understanding of what is required before any
work begins on site. Sample conditions that make this job
easier are found in Appendix A. Make sure the Order of
Conditions is recorded in the Registry of Deeds before work
begins, so that subsequent owners of the property know what
their obligations are. Each Order must be recorded prior to
any work commencing on site (but after all appeal periods
have lapsed) in the Registry of the county where the land is
located. The applicant must notify your commission when the
Order has been recorded by returning the bottom portion of
the Order of Conditions form. If the applicant does not
record the Order before commencing work, your commission may
record the Order.
6 . Respond swiftly and clearly to any violations that do occur.
The most logical sequence of enforcement action is set out
in the following sections. Start simply and informally, but
don't be afraid to take more aggressive action if your
original request has not been complied with.
2/94
Enforcement Manual/Page 5
III. WHAT TO DO NEXT
A. Jurisdiction
The first step in determining whether a violation of the
Wetlands Protection Act, G.L. c.131, s.40, has occurred is
to decide whether the activity you have observed is 1)
regulated under the Act and 2) falls within an area subject
to the commission's jurisdiction. Remember that work alone
does not establish jurisdiction, and jurisdiction itself
does not establish that the work will be prohibited.
The first paragraph of the Wetlands Protection Act states :
"No persor shall remove, fill, dredge or alter any bank,
fresh wate_ wetland, coastal wetland, beach, dune, flat,
marsh, meadow or swamp bordering on the ocean or on any
estuary, creek, river, stream, pond, or lake, or any land
under said waters or any land subject to tidal action,
coastal storm flowage, or flooding. . . without filing written
notice of this intention. . . (with) the conservation
commission ..." G.L. c.131, s.40.
The Department of Environmental Protection (DEP) has
promulgated Regulations, 310 CMR 10.00, which clarify and
further define the activities and resource areas which are
subject to protection under the statute.
The work covered by the statute is defined in the
Regulations to include virtually any development activity.
"Alter, 11 the key word, is defined broadly enough by DEP to
reach most development impacts including changes in
drainage, salinity, sedimentation, water flow, flood
retention, water levels, water temperature, or other
physical, biological or chemical characteristics of the
receiving water.
The Resource Areas which are protectable under the Act are
those listed in the statute and classified in the
Regulations as bordering vegetated wetlands, land subject to
flooding (both isolated and bordering) , land under water,
banks, beaches, and dunes. To be protectable under the Act
most of these Resource Areas must border any one of a list
of water bodies - lakes, creeks, streams, rivers, ponds,
estuaries, or the ocean.
For work in a Resource Area, a Notice of Intent must be
filed with the conservation commission before work can
proceed. Jurisdiction here can be thought of as
"automatic." The commission can and should use its
authority to stop unpermitted work in a Resource Area until
a Notice of Intent has been filed and an Order of Conditions
has been issued and recorded.
2/94
Enforcement Manual /Page 6
In contrast, work in a 100 -foot Buffer Zone around bordering
vegetated wetlands, banks, beaches, and dunes may be
governed by the Act, and the developer has the option of
filing a Notice of Intent or a Request for Determination.
Jurisdiction in this Buffer Zone might be thought of as
"advisory." Unauthorized work in the Buffer Zone also
should be stopped until either a Request for Determination
or a Notice of Intent has been acted upon by the commission
or DEP upon appeal .
Finally, work outside any Resource Area or Buffer Zone is
regulated only when and if an alteration of a Resource Area
occurs. In other words, work altering wetlands and
floodplains from a distance (as through changes in drainage,
discharges of pollution, and siltation from erosion)
requires a permit from the conservation commission only
after the alteration actually takes place. This could be
called "after-the-fact 11 jurisdiction. If work outside a
Resource Area or the Buffer Zone has altered a Resource
Area, the commission can and should stop all work until a
Notice of Intent has been filed and an Order of Conditions
has been issued and recorded.
The commission retains jurisdiction over a project once an
Order of Conditions or a Determination of Applicability has
been issued. Failure to comply with a Determination or an
Order of Conditions constitutes a violation of the Act.
Violations can include, among others, failure to observe a
particular condition or time period specified in a
Determination or Order, failure to record an Order in the
Registry of Deeds, or continuation of work after failing to
obtain an Extension Permit .
The conservation commission and DEP equally are authorized
and responsible for enforcing the Act . This means that a
conservation commission, at its discretion, can enforce a
DEP Superseding Order. DEP, at its discretion, can enforce
a conservation commission Order issued under the Act. Both
DEP and the conservation commission can pursue a violation
where work is being done in an area subject to the Act
without a valid Order of Conditions.
If your community has a wetland bylaw, commission
jurisdiction may be defined more broadly than under the Act.
Additional resource areas may be protected, and additional
activities may be regulated. Sample wetland bylaws are
available from MACC. (See Contact /Reference List.)
Commissions with wetland bylaws have independent authority
to assert jurisdiction over work in or near resource areas.
Determinations of Applicability, Orders of Conditions,
Enforcement Orders, and other documents issued under local
bylaws should clearly state that they are being issued
2/94
Enforcement Manual/Page 7
pursuant to local authority. In appropriate cases,
jurisdiction under a bylaw can be asserted concurrently with
jurisdiction under the Act. If only one document (i.e. an
Order of Conditions) is issued pursuant to both the Act and
a local law, each law should be cited on the document's
face . Remember that wetland bylaws are local
responsibilities; DEP cannot assist conservation commissions
in implementing or enforcing them.
2/94
Enforcement Manual /Page 8
B. Spotting Violations
Wetland violations are bound to occur despite commission
precautions, so you may as well do everything possible to
spot them early in order to prevent disasters. It is vital
for the community and the media to know of your work,
because only then can they bring potential violations to
your attention.
1. Site Visits
In order to establish whether an activity is in violation of
the Wetlands Protection Act or local bylaw, your commission
usually will need to conduct a site visit. A site
inspection is not subject to the Open Meeting Law and may be
conducted by one or any number of commission members. In
important cases the entire commission may visit the site
together; for smaller projects or emergencies the job may be
delegated to one member. In any case, a routine procedure
should be established. A checklist of items your commission
should bring on site visits is included in Appendix B.
The Wetlands Protection Act contains language giving
conservation commissions authority to enter private land in
order to carry out their duties under the Act, but it is not
the last word on the subject. Both the United States and
Massachusetts Constitutions contain important safeguards
that protect people from unreasonable searches and seizures .
When there is a conflict between statutory and
Constitutional provisions, the Constitutional protections
will prevail.
a. Grant Decision
In Commonwealth v. John G. Grant and Sons, Inc., 403 Mass.
151 (1988) , the Massachusetts Supreme Judicial Court
concluded that commissions do not have legal authority to
conduct inspections on private property for violations of
the Wetlands Protection Act. The Court based its decision
on a narrow reading of the language of the Act, concluding
that commissions have authority to enter private property to
carry out administrative functions in the processing of
notices of intent but not to carry out enforcement
functions .
Chapter 388, Acts of 1990 (see Appendix C) , amended M.G.L.
ch. 131, s.40 to explicitly include enforcement as one of a
conservation commission's functions. Conservation
commissions now clearly have authority to enforce the Act,
and may undertake any enforcement actions authorized by law.
This statutory amendment thus corrects the major flaw in
wetlands enforcement identified in the Grant decision.
2/94
Enforcement Manual /'Page 9
Because conservation commissions now explicitly have
enforcement authority, the language of M.G.L. ch.131, s. 40,
paragraph 12 is applicable to them: " [t] he conservation
commission and its agents . . . and the Commissioner of [DEP]
and his agents . . . may enter upon privately owned land for
the purpose of performing their duties under this section."
However, this language must still be viewed in conjunction
with federal and state constitutional protections against
unreasonable searches. It is clear that the justices were
concerned with an interpretation of the Wetlands Protection
Act that would grant conservation commissioners inspection
authority that was overly broad. The decision states that:
" [a] general grant to roam at will through all areas in a
municipality that are subject to s.4 0 in search of unlawful
conduct would present substantial constitutional questions."
The court also noted that unlike the U.S. Supreme Court, the
Massachusetts courts have not yet addressed the "open
fields" exception to the constitution that allows
warrantless searches of open fields, woods and other outdoor
areas that are not in proximity to a home, business or other
location where a landowner would have an expectation of
privacy.
In view of the unsettled nature of the caselaw in this area,
a conservation commissioner attempting to make a site
inspection to determine whether a wetlands violation has
occurred should carefully study the following analysis.
2/94
Enforcement Manual /Page 10
b. Landowner Consent /Civil vs. Criminal Enforcement
Your enforcement actions will fall into one of two
categories: civil administrative enforcement (seeking
compliance prospectively with the statute and/or monetary-
fines) or criminal enforcement (seeking punishment for past
violations of the statute, including monetary fines and/or
imprisonment) . [See text at page 31 for further discussion
of the differences between civil and criminal actions.] In
cases where criminal actions are contemplated, site
inspections should be conducted under the auspices of the
police department or district attorney, generally with a
warrant. For various reasons, the vast majority of your
enforcement activities will involve civil administrative
enforcement actions. In civil cases where the area to be
inspected is not in the proximity of a home or business, the
following procedure should be sufficient :
1. First, go to the home or business during normal
business hours (i.e., 8:30am - 5pm, Monday through
Friday) and announce your presence. If there is no
structure on the property, approach anyone working on
the site and ask to be directed to the landowner or any
other person in charge. Introduce yourself as a member
or agent of the conservation commission and show some
identification, such as a badge or photo ID that
contains some reference to your official capacity, if
possible. Explain that you are investigating
complaints that there is work at the site that is being
carried out in violation of the Wetlands Protection Act
and that you would like to conduct a site inspection to
determine whether such violation has in fact occurred.
If there is no objection, proceed with your inspection
in a professional manner.
2 . If the landowner or other person with whom you are
speaking objects at any time to your investigation,
either verbally or by his/her actions, DO NOT proceed
further with your site inspection. For your own
safety, as well as constitutional considerations, you
should get off the property immediately. You may
proceed with your investigation only by observing any
violations that are in public view (as described in
"c", below) or by obtaining a search warrant (as
described in "2", below).
Sometimes there may not be anyone at the site at the time of
your inspection and you will have to determine who the
property owner is.
2/94
Enforcement Manual /Page 11
3 . If your repeated attempts to contact the landowner
(either in person or by telephone) have been
unsuccessful, another option is to write a letter to
the landowner, telling him or her that you will be on
the site on a certain date to conduct an inspection.
Be sure to include in the letter information about how
the landowner can contact you if they object to your
inspection. (See sample letter, Appendix N.) Send the
letter certified mail return receipt requested. If you
know that the individual received the letter (i.e., you
have received back the green return receipt requested
card, signed by the landowner) , you can assume you have
his or her consent to enter. However, you must have
allowed a reasonable response time and have heard no
objections in that time. If you think someone other
than the landowner has authority to permit you on the
site, contact your town counsel.
4. If you are unable to contact the landowner, either
in person, by telephone, or by letter (N.B., be sure to
keep a log of your attempts to contact the landowner)
because there is no one at the site or because you are
unable to reasonably determine who the owner is, and
the area of violation is not in public view, you should
contact your town counsel to discuss your strategy on
gaining access . While obtaining a warrant is always an
option, s/he may have an alternative recommendation,
depending on the particular circumstances of the
situation.
Any landowner who files a Request for Determination or
Notice of Intent with the conservation commission cannot
reasonably be expected to deny commission access to the
property. By filing an application with your commission,
the landowner in effect has consented to a site visit.1 If
permission to conduct a site visit for acting upon a Request
for Determination is withheld, your commission can issue a
Positive Determination and require a full Notice of Intent
before any work proceeds on site. If permission to conduct
a site investigation . for acting. upon a Notice of Intent is
withheld, your commission can deny the landowner's
application for lack of information.
xThe Department's position on this issue has recently been
challenged in court. DEP's acting wetlands director and a member
of the MACC board of directors have filed affidavits in support
of a conservation commission's right to conduct a site inspection
under these circumstances. Further guidance will be provided
when a final decision has been issued.
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Similarly, once the appeal period for an Order of Conditions
has elapsed and work has begun, the landowner in effect has
consented to its conditions. When issuing an Order of
Conditions under the Act or your local bylaw, include a
paragraph stating that the commission, its employees, and
agents shall have a right of entry to inspect for compliance
with the terms of the Order. Sample language is included in
Appendix A.
c. "Public View"
Where possible, observe violations from public property or
from private property where you have permission to be, such
as on abutting land. Ask a neighbor if you may enter his/her
property to observe the adjoining lot. You also may view
violations from any vantage point where the public is not
excluded, such as streets, parking lots, sidewalks, public
parks, and so forth. Keep notes of your observations and
photographs made from such locations. For serious
violations, consider renting an airplane. If several
ongoing violations occur or are suspected, it would be worth
the additional expense to contract for aerial photographs at
regular intervals (perhaps every 2-3 years) . Historical
aerial photos can also be obtained from a variety of
sources, including the Mass. Dept. of Public Works or DEP's
Wetlands Conservancy Program (see Contact /Reference List) .
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2 . Obtaining Search Warrants
If the landowner objects to your entry, and you still need
to enter the property to inspect for potential violations,
you will need a search warrant.
a . Who Can Obtain a Search Warrant
A member or an agent of your commission may apply for a
search warrant and conduct the search. Be prepared to
document the reasons why you suspect a violation is
occurring or has occurred on the site, the measures you have
taken to gain compliance, and the seriousness of the alleged
violation. If you are concerned about your personal safety
during a site inspection, you may wish to contact your local
police department so that they can accompany you during your
inspection and prevent any breach of peace.
b. Standards for Obtaining a Search Warrant
For most enforcement actions, you will be seeking a civil
administrative search warrant. The standard for obtaining
an administrative warrant is a more relaxed standard than
the standard for obtaining a criminal search warrant . To
obtain an administrative search warrant, the conservation
commission must demonstrate that the search is part of a
neutral inspection scheme (for example, the commission
decides to inspect every site for which it issues an Order
of Conditions) or the commission has specific evidence of an
existing violation.
In order to obtain a criminal search warrant, you must meet
the "probable cause" standard. This means that you must
demonstrate to a magistrate or judge that you have reliable
information leading you to believe that evidence of a
violation of law will be found on the property to be
searched. If you wish to pursue criminal prosecution of a
violation, you will need to obtain a criminal search warrant
through the District Attorney's office.
To obtain a civil administrative search warrant, go to the
civil, not the criminal, clerk's office of the local
District or Superior Court. Make sure the clerk understands
that you are seeking a civil - not a criminal - search
warrant. It is recommended that you bring a copy of the
Act, as amended in 1990, with you when you apply for the
warrant. Be prepared to submit the following information in
support of your application for a civil administrative
search warrant (See Appendix D for Civil Administrative
Search Warrant forms) :
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1. Describe the property in detail, including ownership,
existence of any dwelling, a description of that
portion of the premises subject to c. 131, §40, and
what the commission expects to observe on the site;
2. Describe the source of reliability and contents of
information giving the commission reason to believe
that evidence of a violation will be observed;
3 . Describe any attempts to obtain consent and view the
property from another lawfully attainable position off
site; and
4. Describe the commission's authority to enforce the law,
citing appropriate sections of the Wetlands Protection
Act and Regulations, as well as your local wetland
bylaw.
A search warrant will be issued by a judge or clerk
magistrate to you, if they find you have demonstrated
"administrative probable cause." You then conduct the
search and return the warrant and the return form to the
issuing court .
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C. Documenting the Facts
Assuming that you are now lawfully on the site, whether by
consent or with a search warrant, the next step is the site
inspection. First of all, search only the areas where you
have permission to be. Do not "roam at will." Your purpose
is to gather facts about a possible violation. Appendix B
reviews what to bring with you.
All facts collected during site inspections should be
recorded. It is important to build a complete, accurate
record of each violation while the incident is still fresh
in your mind, in order to take effective enforcement action
later. The Middlesex County District Attorney's Office has
developed a Violation Report Form that can be tailored to
your community, photocopied, and distributed to each member
of the commission. (Keep them in -your auto glove
compartment!) The form should be filled out immediately,
whether or not court action is anticipated, as it provides a
good foundation for all subsequent enforcement action.
If viewing the violation from a public place or private
property where you have permission tc be, record as many
facts, as you can observe .
A sample Violation Report Form is included in Appendix E. It
provides space to record the property location, owner,
responsible parties, vehicle registrations, activities, type
of wetland, witnesses, and action taken by the police or
conservation commission. Remember to collect information
for each separate date on which illegal filling, ilredging,
removing, or altering takes place.
Try to document the nature and condition of the property as
it existed before the wetland violation. Utilize U.S.
Geological Survey topographic maps, Federal Emergency
Management Agency floodplain maps, U.S. Soil Conservation
Service soil maps, DEP wetland restriction maps, and
municipal wetland maps as general aids to determine the
wetland boundary prior to an illegal alteration.
Photographs from neighbors, or from aerial surveys, may be
helpful .
D. Taking Photos
Photographs documenting a violation are essential . These
should be prints, preferably in color and ideally 5" x 7" or
8" x 10". (An instant camera will not produce such large
shots, but is convenient in the field) . On the reverse side
of each print should be noted, in waterproof ink, the exact
date and time of the photograph, the subject of the photo,
the name, title, and address of the photographer, a brief
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Enforcement Manual/Page 16
description of the location from which the photo was taken
and in what direction, and the name and address of any-
individual present when the photo was taken. Try to include
a reference point for scale, such as a ruler or standing
person, and include landmarks whenever possible.
E . Keeping a Log
Once a violation has been observed, start a file on the
property or resurrect an existing file. Begin each file
with a log sheet which records all enforcement activities,
from site visits, phone calls, and correspondence to formal
enforcement measures . A log can be an invaluable tool in
making sure that information on a violation is thorough and
orderly for court purposes. Every violation should be
treated as if it could end up in court; by starting a log
sheet now, you will avoid many headaches later.
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F. Informal Enforcement
1. Phone calls
A simple phone call to the property owner may be all that is
needed to secure com] iance with the Wetlands Protection Act
and local bylaw. In .any cases the violation stems from
ignorance of wetland protection laws, and education is the
key to prompt and continued compliance. This doesn't mean
you should always begin your enforcement efforts over the
phone; for repeated or flagrant violations you may want to
issue an immediate Enforcement Order.
However, a ; ..one call can be particularly effective when the
activity is a small, home - improvement type of project.
Inform the person of the violation and give simple
corrective steps that should be taken immediately to prevent
further damage. These might include the installation of hay
bales, stabilization of the area with mulch, and voluntary
suspension of all ether work in the affected area. Make
sure you give the violator explicit directions for carrying
out these requests, and offer to visit the site with the
violator to clear up any confusion.
Set a timeline for compliance, and include instructions for
completing commission paperwork. Typically, work should be
stopped upon receipt of the phone call; erosion controls
should be put in place immediately (1-3 days) ; and the
violator should be instructed to appear at the next
commission meeting with at least a sketch of the area and a
description of the proposed project, as a prerequisite to a
formal Request for Determination (RFD) or Notice of Intent
(NOI) . If damage to a Resource Area is extensive, or the
project appears complicated, the commission may dispense
with an informal meeting and request an RFD or NOI be filed
as soon as possible (within 2-3 weeks is reasonable) .
If you meet with resistance over the phone, explain the
serious consequence of wetland violations and explain what
steps the commission mav take to ensure compliance. Do not
ruin your credibility with idle threats, but outline the
facts of enforcement - the next step may include an
Enforcement Order, which will officially stop all work
within areas ur^der the commission's jurisdiction. Let the
violator know that continued noncompliance may lead to
substantial fines or a jail sentence or both.
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Detailed notes from this telephone conversation should be
included in the file, and the date and time should be
recorded on the log sheet. It is important to send a
confirmatory letter summarizing the important corrective
measures, procedures, and deadlines established over the
telephone .
2 . Meetings with Violators
Meetings with violators should be educational, not
confrontational. This is your chance to educate the
violator about the need for and the requirements of the
Act, Regulations, local bylaw, and commission procedures.
The violator should view this meeting as a chance to explain
his/her project.
If the project is simple, in the Buffer Zone, or no damage
to a Resource Area has occurred, the commission may review
the landowner's proposal and require only a Request for
Determination be filed. If the project is close to a
Resource Area, complicated, or if damage to a Resource Area
has already occurred, the commission may request a Notice of
Intent. However, if it is obvious that the project cannot
meet regulatory performance standards (i.e. more than 5,000
sq. ft. of bordering vegetated wetland has been altered)
your commission should not request a Notice of Intent be
filed. Instead, your commission should issue an Enforcement
Order and require the filing of mitigation-restoration
plans. It may be appropriate to accept a Notice of Intent
for one portion of a site and to issue an Enforcement Order
requiring mitigation-restoration for another portion.
In any case, do not neglect the paperwork and public hearing
requirements of the Act and local bylaw. Even if you feel
this violation can be resolved with installation of a few
haybales, make sure the paperwork gets completed and a
public hearing is held. Time spent now, to create the
proper record, will save your commission headaches in the
future . Abutters need an opportunity to raise their
concerns, and the landowner will be protected from
uncertainty if the procedural requirements are followed.
If the commission has not already set a deadline for receipt
of the RFD or NOI, do so at the meeting. Decide whether the
initial remedial measures and timeline are adequate for
compliance. If necessary set a new schedule for work to be
done, and reiterate the work which cannot be done, pending
issuance of a final Determination or Order of Conditions.
Be specific. Schedule another site visit if necessary.
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Follow up with correspondence to confirm all requests and
deadlines. Once the appropriate meeting minutes have been
approved, place a copy in the project file.
3 . Correspondence
Follow up all conversations and meetings with the violator
in writing. Confirm in writing all deadlines, procedures,
and corrective measures agreed upon verbally. Make sure a
copy of each document sent and received finds its way to the
appropriate file. Remember to enter all enforcement
activities, including the date and content of every piece of
correspondence, onto the log sheet prefacing each file.
Enforcement correspondence can be hand delivered or sent by
regular mail, registered mail, or certified mail return
receipt requested. Use whatever method or methods will
ensure prompt and continued compliance. Hand delivery, with
a confirmatory copy by certified mail return receipt
requested, will prevent the violator from claiming that
he/she did not receive the document in a timely fashion.
When necessary, an enforcement document can be delivered
effectively by a local police officer.
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G. Formal Enforcement
1. Violation Notices
A written Violation Notice, on the commission's letterhead,
is a more formal enforcement step than a phone call.
Violation Notices can be effective to bring about compliance
when phone calls are ignored. They also look "official"
when delivered on site by the conservation agent or a
commission member.
A sample Violation Notice is included in Appendix F. At a
minimum, the Notice should contain space to record the
property location and parties it is issued to, the extent
and type of activity that is observed in violation of the
Act or local bylaw, corrective measures, and deadlines for
compliance. The Notice should contain a brief summary of
the commission's authority to enforce the Act and bylaw, and
should note the consequences of not responding. It should
be signed by the agent or commission member who issues it .
Don't issue the Violation Notice without making a copy for
the file, and remember to enter its issuance on the log
sheet .
2 . Enforcement Orders
No response to your phone call or Violation Notice?
Typically, the next step is to issue an Enforcement Order
under authority of the state Wetlands Protection Act and
your local bylaw. This is not to say that an Enforcement
Order is the only step which should be taken; repeated or
flagrant violations may cause the commission to initiate
legal action simultaneously. But generally, since an
Enforcement Order includes a strong incentive for compliance
- a stop-work provision - try to obtain compliance with an
Enforcement Order before escalating the matter into a
lawsuit .
The commission can pre-authorize its agent, or each
individual member, to issue Enforcement Orders in the field.
Simply vote at your next regular commission meeting to
authorize individual commission members or staff to issue
Enforcement Orders in the field when speed is of the essence
to protect wetland interests. Any Order issued by one
person should be ratified by the full commission at its next
meeting.
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a. Drafting the Enforcement Order
Enforcement Orders (formerly Cease and Desist Orders) should
be issued using Form 9, 310 CMR 10.99, provided by DEP in
the Wetland Regulations. This form is a good start, but an
effective Enforcement Order is tailored to the situation and
should include more information than called for on the
standard form. If your community has a wetland bylaw, note
on the form itself that the Enforcement Order also is being
issued under authority of the bylaw. The Enforcement Order
should be a self-contained educational document, as it
provides the basis for other more serious enforcement
efforts. Attach as many pages to the form as necessary to
convey your message . A sample Enforcement Order is included
in Appendix G.
The Order should be addressed to all potentially responsible
parties - owner, developer, contractor, and subcontractors,
and describe the property where the illegal work has
occurred. Draft the Order to contain a short "Introduction"
describing the commission and its authority to issue the
Order; a section entitled "Facts" containing all information
pertinent to the violation - who saw what, when and where; a
section on the "Law, " citing provisions of the Act,
Regulations, and bylaw that have been violated; and a
section entitled "Findings" tying these facts to the law.
The next and most important section is the "Order" which
describes exactly what steps the commission wants the
violator to take and sets deadlines for their completion.
Draft these measures carefully to ensure understanding and
compliance. The commission can halt all unauthorized work
within its jurisdiction from the moment the Enforcement
Order is received by the violator until the recording of an
Order of Conditions. A map or sketch would be helpful here
to identify exactly which areas are under the commission's
jurisdiction and which activities are subject to the stop-
work provisions of the Order.
An exception to the stop-work order should be made for
emergency site stabilization and erosion control measures
that must be installed immediately. Again, describe these
measures clearly, set a specific deadline for completion,
and offer to visit the site if necessary to clarify the
commission's position. Further steps toward compliance with
the Act and local bylaw should be staged; that is, do not
merely request that the violator file a Notice of Intent "as
soon as possible." Instead, require the violator to
document in writing, by a set date, his/her intent to
comply. Set deadlines for retaining an engineer (or other
appropriate consultant) , and for submitting a Notice of
Intent. Additional on-site remedial steps should be stated
2/94
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in the same manner. Don't wait for a month only to find out
that the violator has no intention of complying!
The Enforcement Order should contain a final paragraph
noting the serious consequence of wetland violations. Don't
threaten any particular action, but describe the penalties
which may be imposed under the Act, local bylaw, and by DEP,
under the state Administrative Penalties Program.
b. Issuing the Enforcement Order
The Enforcement Order should be signed by the commission
agent or as many commission members as possible. Remember
to note on the Order that a copy has been sent to DEP, town
counsel, the selectmen, town manager, planning board, board
of appeals, board of health, building inspector, and equally
important, the local newspaper.
It is not a good idea to send a copy to the local bank
holding a mortgage on the property, or to the real estate
brokers who are showing the property for sale . To do so
could put your commission in the position of interfering
with a contractual relationship, and force you to defend an
unwanted law suit .
The Enforcement Order should not be recorded in the Registry
of Deeds, even though it may seem like a good way to attract
the violator's attention. Based upon Massachusetts court
decisions and statutes, only certain documents are entitled
to be recorded, and an Enforcement Order does not meet those
requirements . The Wetlands Protection Act requires that
Orders of Conditions be recorded, but it does not authorize
the recording of enforcement documents.
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3 . Revoking Orders of Conditions
Where the requirements of an Order of Conditions have been
seriously violated, you may want to consider revoking the
Order. This is appropriate only in the most extreme and the
most egregious cases, as this is a serious step. Your
commission should attempt to gain compliance through other
techniques prior to considering revocation. In almost all
cases, an Enforcement Order should be issued first; this
will put the violator on notice and will build a record if
more serious enforcement efforts are necessary.
A revoked Order cannot be reinstated. If the Order is
revoked, the permit holder will have no permit to go forward
on and will have to file a new Notice of Intent to continue
work on the project. You are taking away a substantial
right previously granted to the applicant; expect
substantial opposition. You may want to speak with Town
Counsel before taking this step, as the violator's only
remedy is to seek review of your action in court.
In cases where a wetland resource area has been or will be
damaged, your commission should revoke the Order and issue
an Enforcement Order specifying the work necessary to
stabilize the site. Without such an Enforcement Order, the
violator cannot do any work on site once the Order of
Conditions is revoked. If a refiling is made, considerable
delay may occur if the new Order of Conditions is appealed.
If the site is not stabilized, significant damage to
resource areas may occur during the interim period.
Before revoking an Order, be sure to give the permit holder
his or her due process rights. "Boilerplate" Condition No.
1 found on DEP's Form 5, Order of Conditions, 310 CMR 10.99,
gives every recipient of an Order of Conditions notice that
the Order can be revoked for failure to comply with all
conditions, related statutes, and other regulatory measures.
However, your commission should not rely on this provision
to provide adequate notice to the violator. Upon
discovering a violation that is serious enough to warrant
revocation, you must notify the violator of your intended
action and provide an opportunity for the violator to
present evidence on his/her behalf at a public meeting.
This meeting should be advertised and conducted in
accordance with the Open Meeting Law, and must be held
before your commission makes a final decision. After the
violator has presented his/her case, the commission should
take a formal vote. If revocation is approved, the vote
should be documented in writing.
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Be absolutely sure you make a complete record of the
reasoning behind your decision. Enter into the record
evidence of the violations and your attempts to gain
compliance. The record must show, on its own, that your
Commission has not acted capriciously or arbitrarily. If
appealed, a judge will review your record under this
standard .
A Commission has authority to revoke only those Orders it
has issued, not DEP Superseding Orders. Be sure that your
Enforcement Orders provide for the continuation of work
deemed essential to stabilize the site. Once the Order is
revoked, the Enforcement Order comprises the only
authorization for work on the site. Also be sure to send all
notices and Orders via certified mail, return receipt
requested, or by hand delivery.
The Revocation Order can be recorded in the Registry of
Deeds as long as your commission's signatures have been
acknowledged by a Notary. Have the commission sign two
original copies of the Revocation Order. Send one to the
violator (certified mail, return receipt requested or hand
delivery) ; record the other at the Registry of Deeds.
Your commission may use the Enforcement Order Form 9, 310
CMR 10.99, to revoke an Order of Conditions as long as the
following changes are made:
1) Add to the title of the form the words, "Revocation of
Order of Conditions" .
2) Add a notary acknowledgement to the end of the form so
that the Revocation Order can be recorded in the
Registry of Deeds. This acknowledgement should read:
On this day of 19 , before me
personally appeared , to me known to be the
person described in and who executed the foregoing
instrument and acknowledged that he/she executed the same as
his/her free act and deed.
Notary Public My commission expires
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Enforcement Manual/Page 25
4. Non-Criminal Citations Using Local Bylaws
10/93 Update Note: Massachusetts General Law Chapter 40, Section
2 ID, the non- criminal "ticketing" procedure used to enforce local
bylaws, was substantially amended in 1992. These amendments were
to have taken effect on January 1, 1993, and have caused
considerable confusion among municipalities. District Courts, and
the motor vehicle registrars. As a result, legislative
amendments are again proposed (and, as you read this, may have
already been signed into law) to correct the situation and
restore Section 21D to its previous format.
The 1992 amendments rewrote much of Section 21D by substituting,
in full, the procedures for writing tickets and collecting fines
that are found in G.L. Chapter 90G - the "Civil Infractions" law.
An important consequence of this amendment is that Chapter 90G
requires all ticket fines be paid to the registrar of motor
vehicles rather than to municipalities directly. The registrar
would then distribute the monies to the municipality which issued
the original ticket. In the event a violator does not pay the
fine, the registrar is authorized to withhold drivers licenses,
motor vehicle registrations, and similar documents until the fine
is paid in full.
For a number of reasons, this enforcement scheme has not been
implemented. As of this writing (10/93 update) , legislative
amendments to restore Section 2 ID have passed both the
Massachusetts House of Representatives and Senate and are
awaiting the Governor's signature. Additional amendments are
planned.
The following sections on 21D, while describing past practices,
still contain useful information about this "ticketing"
procedure. The legislative amendments described above, in fact,
may restore the procedures of the former law and these following
sections may again apply.
Before taking any action under Chapter 40, section 21D, consult
your town counsel or city solicitor for the most current
statutory language and for advice about how to proceed.
If your community has a local wetland bylaw, there is
another enforcement technique which can be used to bring
about compliance before escalating to a law suit. The
legislature has authorized municipal governments to use a
non-criminal "ticketing" procedure to enforce local laws
such as wetland bylaws. As long as the appropriate bylaws
are in ; lace, the "ticketing" procedure can be used as an
altema -ve or an additional enforcement tool.
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Enforcement Manual/Page 26
The "ticketing" statute, G.L. c.40, s.21d, provides that any
ordinance, bylaw, rule, or regulation of any municipal
office, board, or department may be enforced by this method
as long as the violation is subject to a specific penalty.
Only a few towns have actually adopted this process; some
have made it applicable to a few specific bylaws while
others have given it more wide-ranging applications.
Typical environmental laws enforced by this method include
wetland bylaws and regulations, conservation land rules and
regulations, rubbish disposal and littering regulations,
shellfish regulations, and violations of zoning bylaws.
Use of the "ticketing" procedure allows an enforcement
person to write a ticket which provides for a specific sum
of money to be paid as a penalty for the violation of a
local bylaw. The violator must pay the ticket or request an
appeal in writing to the district court. If appealed, a
hearing will be held on the matter within twenty-one days
following the date the ticket was written.
Advantages to use of the non-criminal ticket include: the
"criminal" stigma is taken away from enforcement efforts;
the need to prove a case in a trial setting is for the most
part eliminated; and many local bylaws can be enforced by a
process similar to that employed for minor traffic
violations, a process with which most people are familiar.
a. Implementing Section 21D
In order to take advantage of the ticketing procedure, your
municipality must first adopt a bylaw authorizing its use.
The bylaw must specify if the procedure is to be mandatory
or optional. The bylaw also must specify who the enforcement
persons are to be and the specific penalty which is to apply
for violations of each particular provision.
Existing municipal bylaws typically provide for enforcement
in a general way and do not include specific fines or name
enforcement personnel. If your community wishes to use the
ticketing procedure to enforce multiple bylaws, it may be
difficult to amend each individual bylaw to include the
required information. It may be easier to create a new
bylaw which authorizes use of the ticketing procedure and,
at the same time, references each individual bylaw, giving
specific penalties and naming enforcement personnel. Police
officers and conservation commission members and staff
should be named as enforcement personnel for purposes of
enforcing the local wetland bylaw. A model bylaw is
included in Appendix H.
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Before adopting an enabling bylaw, it is strongly
recommended that a conference be held with a clerk or
magistrate of the local district court in order to advise
them of the action and to secure advice. Proper enforcement
under these provisions requires close cooperation between
the municipality and court. To omit the meeting, or to
delay it, may adversely affect the town's implementation
plan and efforts.
b. Issuing the Citation
Citation forms must be developed for use by commission
members and other enforcement personnel . A sample form is
included in Appendix I. At a minimum, the form must be
prepared in triplicate: one copy for the violator, one for
the court, and one for the municipality. If the forms are
printed in four parts, your commission will be able to
retain a copy for its files. A list of provisions subject to
enforcement by this procedure and a schedule of fines should
be kept in the citation book.
There should be space on the citation form (at least on the
back of the copy retained by the enforcement officer) for an
incident report. If there is no room for an incident
report, enforcement personnel should be directed to keep
their own notes concerning the violation. If a hearing is
requested by the person being cited, or if a criminal
complaint must be issued, these notes will be essential .
A set of detailed instructions should be issued,
particularly for the non-police enforcement personnel . A
sample set of instructions is included in Appendix J. Hands
on training should be provided before enforcement personnel
are permitted to issue any citations.
c. Collecting the Fine
Fines in the $25 - $50 range appear to be the most
successful based upon other communities' experiences. Fines
in this range are large enough to be noticeable when paid by
an individual but are low enough so that they will be paid,
rather than contested. One community, which adopted fines
in the $100 range, has found that the majority of its
tickets issued under these provisions are contested.
Ascending scales (fines go up with each subsequent offense)
may be considered, but the additional burden to administrate
such a system may be prohibitive.
A list of all citations issued, the date of issuance, the
date by which a response is due, and action taken should be
recorded. Usually this will be the duty of the police
prosecutor. The commission may wish to keep its own log
2/94
Enforcement Manual/Page 28
sheet covering wetland/conservation violations. The list is
necessary for accurate follow-up once the citations have
been issued.
If twenty-one days have elapsed since a ticket was issued,
and the person cited has not paid the fine or requested a
hearing, a follow-up letter can be sent. The letter is
optional, and can grant an additional ten days for the
violator to act before facing a criminal complaint.
If the violator responds by paying the fine, the matter is
closed and no record of the case is entered with the court .
If the violator requests a hearing, he/she must appear
before a judge, magistrate, or clerk. If the court finds
that the offense was not committed, or that the person
appearing did not commit it, the matter will be dismissed.
If the court finds that the offense was committed by the
person cited, the person may then pay the fine and the
matter will be disposed of without a criminal record.
If the violator does not respond to the citation, the
enforcement officer should speak with police to discuss the
case and its suitability for requesting a criminal
complaint. Issuance of a criminal complaint is discussed in
Section IV- C below.
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IV. ESCALATING THE MATTER
A. Suing the Violators
If a violator repeatedly or flagrantly has violated the
Wetlands Protection Act or local bylaw, or is causing
serious, potentially irreparable harm to the environment,
legal action may be necessary. A lawsuit also may be the
only way to command attention from a violator who has not or
will not respond to commission phone calls and Enforcement
Orders. If you decide to proceed with legal action, your
case will be much stronger if you have followed the
suggestions made in preceding sections for collecting facts,
organizing the record, and building support from other
municipal boards.
In fact, if you have not followed these suggestions, by
collecting facts and establishing a record, it may be
impossible to bring a legal action. In addition, if your
conservation commission or your fellow municipal boards have
in any way permitted or condoned the illegal activity - by
explicit or implicit approval of the illegal activity or by
extreme delay in taking enforcement action after receiving
evidence of the violation - then a judge's view of the
enforcement case may be adversely affected. The longer
wetlands violations are allowed to continue, the less likely
it will be that effective legal action will be an option.
1 . Statute of Limitations
Statutes of limitations define -he time within which any
person can bring a lawsuit against another party. The
statute of limitations applicable to the Wetlands Protection
Act is found at MGL Chapter 131, §91. Prior to the Grant
amendment, effective December 26, 1990, the statute of
limitations was a significant problem for wetlands
enforcement . With the passage of the Grant amendment
(Chapter 388, Acts 1990), leaving fill in a wetland or
failure to restore an altered wetland is a continuing
violation. Now, all violations are essentially treated the
same for purposes of the statute of limitations. Any action
must be brought within two years of the date the violation
occurred. If the violation consisted of removing, filling,
dredging or altering, then the action must be brought within
two years of the date the violator removed, filled, dredged
or altered a wetland.
If the violation consists of maintaining unauthorized fill
in a wetland or failing to restore an illegally altered
wetland, then each day the fill stays in a wetland or the
wetland fails to be restored, is viewed as a separate
violation. Therefore an action for such violation must be
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brought within two years of the last day such violations
occurred.
All violations, be they removing, filling, dredging or
altering; or maintaining fill, or failing to restore, can be
prosecuted criminally for fines or imprisonment, or civilly
for fines or removal and/or restoration. One exception to
this rule arises in situations where a piece of property has
changed hands. Then, any otherwise timely suit must be
brought within three years after the date of the property
transaction.
Selecting Criminal vs. Civil Enforcement
Legal action can be brought for a number of reasons: site
restoration, completion of unfinished work, punishment, or
deterrence. Civil or criminal litigation can be used to
obtain corresponding remedies, from court orders requiring
specific restoration work to the imposition of fines and
jail sentences. The choice between civil or criminal
litigation is determined by what the commission hopes to
accomplish with the lawsuit. These distinctions are more
fully described in the following section.
Civil lawsuits generally are useful to compel compliance
with a procedural requirement or permit condition under the
Act or local bylaw. A civil lawsuit can obtain an
injunction or similar court order to forbid action (a
prohibitory injunction, for instance, halting wetland
alterations) or to require action (a mandatory injunction,
for instance, requiring filing a Notice of Intent) . In
other words, injunctive relief should be sought when the
commission wants violations corrected and natural resources
protected. In addition, a civil action seeking money damages
is appropriate where there has been injury to persons or
property. Once a civil lawsuit has been filed, the
commission may seek a Temporary Restraining Order from the
court to immediately stop work on site .
A criminal action, on the other hand, is appropriate when
there has been harm to the public health or safety, when a
chronic violator has not responded to civil actions, or when
the harm cannot be undone and hence there is no effective
remedy through injunctive relief. In other words, criminal
complaints should be sought in cases of flagrant, malicious,
or repetitive violations of the Act or local bylaw which
result in significant damage or threat to the environment.
The primary goals of criminal prosecution are punishment and
deterrence. If convicted, the defendant will acquire a
criminal record and be subject to fines, incarceration, or
probation terms. The publicity which often accompanies
Enforcement Manual /Page 31
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criminal prosecution of environmental crimes has a
significant deterrent effect on others who may consider
violating the law or ignoring commission orders.
Although a criminal action can achieve both remedial and
punitive results with respect to individual violations,
civil issues (particularly involving the details of what
work can or cannot be done on site) may remain unresolved
after the conclusion of a criminal case. Therefore, it may
be appropriate to initiate both civil and criminal actions
against the same individual for the same illegal activity.
When the result of an illegal act constitutes a serious
continuing threat to the environment resulting in
irreparable harm, it may be advisable to ask town counsel to
file a civil complaint and seek a Temporary Restraining
Order or a preliminary injunction to mitigate the harm while
the criminal action is pending.
Civil complaints are filed in Superior Court, on behalf of
your municipality and conservation commission, by town
counsel or special town counsel. Typically, approval from
the board of selectmen is necessary before the commission
can utilize counsel's services. Your commission retains
control of the lawsuit, in the sense that it can work with
and assist town counsel, but the town incurs all the costs.
Civil lawsuits are won and lost at trial by convincing the
judge or jury by a "preponderance of the evidence" that a
defendant violated the Act or local bylaw.
In contrast, a criminal action can be initiated by anyone,
simply by seeking a complaint in District Court. Criminal
complaints can be sought for violations of the Act, local
bylaw (if criminal sanctions are authorized in the bylaw) or
both. If a criminal complaint issues, the action is
prosecuted by the District Attorney's Office or the Attorney
General's Office (or in some cases by attorneys specially
appointed as Assistant District Attorneys) on behalf of the
Commonwealth of Massachusetts rather than on behalf of the
conservation commission. Consultation with town counsel is
certainly appropriate, but town counsel's approval is not
necessary in order to proceed with a criminal case. At
trial, the prosecution must prove each element of the
offense "beyond a reasonable doubt." This is a much higher
standard of proof than that necessary in civil cases, where
the allegation must be proved by a "preponderance of the
evidence . "
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B. Civil Court Action
1 . Filing the Complaint
The procedure involves town counsel filing a civil complaint
in Superior Court, on behalf of the municipality and the
local board, against the violator. Your commission must
have an attorney file and press a civil action, and this
means you must get approval from the board of selectmen to
utilize legal services. If the selectmen or counsel are not
enthusiastic about enforcing the law, this request for
services should be made in writing setting forth the reasons
litigation is warranted and the date by which the commission
requests that the complaint be filed. A realistic time span
would be ten days to two weeks, except where the offending
activity will cause irreversible harm. In that case the
complaint should be filed immediately, so a Temporary
Restraining Order can be sought the next day.
2. Temporary Restraining Order (TRO)
If your commission wants to stop illegal work immediately, a
Temporary Restraining Order (TRO) should be sought. A TRO
can be requested as soon as a complaint is filed in court.
It is a form of initial relief which the court may issue, in
its discretion, even without hearing from the defendant.
Consequently, it is effective for only a short period of
time, usually no more than ten days, until the preliminary
injunction hearing can be held. Typically, a TRO will
maintain the status quo on site until the preliminary
injunction hearing.
To secure a TRO the commission must be able to demonstrate
to the court that, without the restraining order, there will
be irreparable harm; the restraining order will not cause
irreparable harm to the defendant; the commission has a
reasonable chance of winning the case on the merits at
trial; and the public interest warrants issuing the order to
halt some work or activity.
3 . Injunction
Injunctions are the mainstay of environmental law. An
environmental suit may be won or lost on preliminary or
permanent injunction issues. A preliminary or permanent
injunction not only may prohibit illegal acts but also may
compel affirmative action. For example, an injunction could
require that a Notice of Intent be filed and forbid any
further activity on site until an Order of Conditions has
been issued. Once an injunction is issued, its strength
lies in the broad authority of a court to demand relief if
the defendant violates the injunction. Since the injunction
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is a court order, the defendant would be in contempt of
court for any violation and subject to criminal sanctions.
A hearing for this type of court order may be consolidated
with a trial on the merits of the case. In some situations,
a trial on the merits will not be heard until months after
the preliminary injunction hearing. Without a preliminary-
injunction, illegal work may be completed in the interim and
the case made moot or relief made more difficult.
To secure an injunction the commission must be able to
demonstrate to the court that, without the injunction, there
will be irreparable harm; the injunction will not cause
irreparable harm to the defendant; the commission has a
reasonable chance of winning the case on the merits at
trial; and the public interest warrants issuing the order to
halt (or compel) some work or activity.
A sample complaint requesting a TRO, preliminary injunction,
and permanent injunction is included in Appendix K. Town
Counsel should be prepared with affidavits (sample
included in Appendix L) ; applicable provisions of the
Wetlands Protection Act, Regulations, and local bylaw; a
legal brief demonstrating a good chance of success on the
merits; and testimony on key points. The issues of
irreparable harm and chance of success on the merits are
most likely to determine whether an injunction is issued.
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C. Criminal Prosecution
1. Application for a Criminal Complaint
A criminal action may be initiated by any person. This means
that any member of the public, including individual
commission members or staff, may visit the district court
with jurisdiction over the location where the violation
occurred and fill out a request for a complaint to issue.
The application for the complaint is merely a brief
statement of the violation specifying the type and extent of
the violation; name and address of the violator; location of
the violation; date of the violation; and the statute
(Wetlands Protection Act and/or local bylaw) which has been
violated. A sample application for a criminal complaint is
included in Appendix M. The person applying should indicate
that this application has been approved by vote of the
commission and should provide names and addresses of
witnesses to the violation plus properly prepared
photographs. If there is a permit, Violation Notice,
Enforcement Order, or other relevant document, include it.
Since a violation of the Wetlands Protection Act or bylaw is
a misdemeanor, a potential defendant usually will be
entitled to a "show cause hearing" on the issue of whether
or not a complaint should issue . At this hearing a clerk
will hear evidence under oath from the person seeking the
complaint and perhaps from the violator. If the clerk finds
"probable cause" to believe that the person has committed
the crime alleged, a complaint will issue. Probable cause
means that there is a reasonable basis for believing that a
crime was committed and that the alleged defendant did it .
2 . Prosecuting the Complaint
After probable cause is determined and the complaint is
issued, the District Attorney's or Attorney General's Office
retains sole discretion in deciding whether and how to
prosecute the criminal case. The District Attorney may seek
assistance from your ' commission, but your commission has no
authority to determine how or when the case will proceed.
After a complaint issues, the defendant will be given a date
for arraignment in District Court. At the arraignment the
defendant is given formal notice of the charges pending
against him/her; the defendant enters a plea to the charges
(guilty, not guilty, nolo contendere) ; pre-trial conditions
may be set; and a schedule for pre-trial options and the
trial itself are set. At trial the prosecution must prove
each element of the offense "beyond a reasonable doubt."
This is a much higher standard of proof than that necessary
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in civil cases, where the allegation must be proved by a
"preponderance of the evidence." A criminal defendant is
entitled to constitutional protections which may not be
applicable to civil cases. For example, in a criminal case
the defendant has the right to remain silent, the right to
counsel, and the right to confront witnesses.
3 . Criminal Penalties
If found guilty, the penalty typically imposed is a criminal
fine, as specified in the applicable statute. A jail
sentence is rare. A period of probation with "no same or
similar violations" is a good thing to seek. Currently the
penalty provisions of the Wetlands Protection Act impose
very stiff fines compared to other environmental violations.
The Act provides: "Whoever violates any provision of this
section, (a) shall be punished by a fine of not more than
twenty- five thousand dollars or by imprisonment for not more
than two years or both such fine and imprisonment; or (b) ,
shall be subject to a civil penalty not to exceed twenty-
five thousand dollars for each violation. Each day such
violation continues snail constitute a separate offense.
This section may be enforced by environmental officers, and
any officer having police powers." G.L. c.131, s.40.
Be sure to build bridges of communication with zhe District
Court staff and the office of the District Attorney. A
criminal prosecution is not handled by town counsel, except
in unusual cases. An Assistant District Attorney will
handle the prosecution. If you wait until the last moment
and contact the District Attorney's Office just before
trial, the result is predictable. If you consult with the
District Attorney before seeking the complaint , you will
have a much greater chance of success .
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V. INVOLVING OTHER AGENCIES IN ENFORCEMENT ACTIVITIES
A. Involving DEP
DEP and the conservation commission equally are authorized
and responsible for enforcing the Wetlands Protection Act.
This means that :
1. A conservation commission, at its discretion, can
enforce a DEP Order. The DEP regional office should be
notified as quickly as possible of any violations of
Superseding Orders. If DEP 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.
2. DEP, 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 by the commission for good cause. DEP
encourages commissions to enforce their own Orders.
3 . Both DEP and the conservation commission can pursue a
violation where work is being done in an area subject
to the Act without a valid Order.
If town counsel fails to respond to the written request of a
conservation commission for legal enforcement action, or if
your commission is unsuccessful in enforcing a state
Superseding Determination or Order, your commission can seek
help from the state. A letter requesting support in an
enforcement action should be sent to the DEP Regional
Environmental Engineer with a copy to the Environmental
Protection Division of the Department of the Attorney
General (See Contact /Reference List) . Complete
documentation including copies of the Enforcement Order and
correspondence with town counsel should be enclosed. When
requesting this assistance it is important that your
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 DEP determines litigation is
necessary, the case will be referred to the Attorney
General's Office or the Environmental Strike Force. Such
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referral means that, should no settlement be reached,
conservation commission members and other town officials
must be prepared to do the work required to go to court .
DEP also may enforce wetland violations through the
Administrative Penalties program discussed in Section VII-D.
B . Involving the Environmental Strike Force
The Massachusetts Environmental Strike Force (ESF) is an
inter-agency unit (DEP, Attorney General's Office and
Executive Office of Environmental Affairs) designed to
identify and prosecute major environmental violators through
civil and criminal actions brought by the Attorney General's
Office. If you feel you have a recalcitrant wetlands
violator who has not responded to local actions, you should
consider referring the case to the Strike Force through the
DEP Regional Strike Force. staff person identified in the
Contact /Reference List. Please be prepared to provide a
full description of the alleged violation (s) . The ESF can
provide investigative, technical, and legal resources in
appropriate cases.
C. Involving Local Boards
1 . Board of Health
The municipal health board controls a vital aspect of land
use planning - disposal of sanitary wastes in non- sewered
areas . Your commission and board of health should make every
effort to understand each other's concerns and jurisdiction.
Make sure each board of health member, and in particular,
the health agent, can identify wetland resource areas so
they can alert you to potential problems . Discuss with the
board how septic systems may be sited so as not to damage
streams, lakes, wetlands, and coastal resources, and urge
the board to adopt stiffer local regulations if topography,
soil conditions, or presence of a local drinking water
source merit them.
In sewered areas, check with the sewer commissioners to
assure that the system is properly maintained and not
discharging contaminants into wetlands or surface waters.
2 . Planning Board
Responsibility for much municipal planning lies with the
planning board. Not only can the board undertake
comprehensive studies and prepare master plans, but also it
can regulate the development of subdivisions. Again, a
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close relationship between the commission and the planning
board is advisable. Projects with potentially serious
wetland impacts may be filed with the planning board months
before they are filed with the conservation commission. If
the planning board can identify wetland resources in the
field, they can alert you to potential problems with a
proposed or under-construction subdivision.
Work with the planning board to develop and implement
techniques that will protect wetland resource areas, such as
wetlands/f loodplain zoning, cluster zoning, acquisition of
conservation restrictions, subdivision rules and regulations
and special permit regulations.
3 . Building Inspector
This official is responsible to the selectmen or mayor, and
has the primary job of ensuring that all local projects are
built in conformity with municipal zoning, including
wetlands or f loodplain zoning. The building inspector can
provide the commission with valuable information concerning
proposed and on-going developments, because he/she spends so
much time in the field. Make sure the inspector understands
what a wetland resource area looks like! Good relations
with the building inspector can ensure that building permits
are not handed out for construction in wetland resource
areas without notice to the commission.
4 . Zoning Board of Appeals
This board acts more like a court than an administrative
body. It guards the zoning bylaw or ordinance by hearing
appeals from orders of the building inspector and grants
special permits and variances when necessary. Your
commission should be aware of and participate in any
proceedings for permits or variances in wetland resource
areas. Again, it is a good idea to educate each board member
about basic wetland resource area identification and
functions .
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VI. LIABILITY FOR ENFORCEMENT MISTAKES
A. Personal Liability
Municipal employees and officers (including conservation
commission members and staff) , acting within the scope of
their employment or office, are given statutory protection
by the Mass. Tort Claims Act, G.L. c.258, from certain types
of liability. In some cases the municipality, not the
individual, will be held liable for negligent or wrongful
acts or omissions caused by a conservation commission
member or staff person acting within the scope of his/her
office or employment. For example, individual commission
members who acted in good faith in administering the
Wetlands Protection Act will not be held liable for flood
damage unexpectedly caused by a development permitted under
an Order of Conditions.
However, there are numerous exceptions where an individual
commission member or staff person could be held liable for
actions taken while carrying out his/her duties. Personal
liability .ay arise from acts or omissions which constitute
a violation of any person's civil rights under federal or
state law. For example, conservation commissioners and
staff should not violate constitutional search and seizure
provisions by entering onto private property to conduct a
search ir the face of landowner objection. Such a search
without warrant could subject individual commission
members cr staff to a civil rights lawsuit.
Conservation commission members and staff also can be held
personally liable for intentional wrongs against another
person. These include: assault, battery, false
imprisonment, false arrest, intentional infliction of mental
distress, malicious prosecution, malicious abuse of process,
libel, slander, misrepresentation, deceit, invasion of
privacy, interference with advantageous relations, and
interference with contractual relations.
B . Mandamus
In Massachusetts, any citizen can bring an action to compel
a government agency or official to perform ministerial
duties. This type of court order is known as "mandamus." It
means that any citizen can sue DE~~ , or the conservation
commission, for failing to carry out a duty required by law.
Mandamus is used to enforce statutory deadlines, record-
keeping mandates, notice requirements, and other procedural
requirements .
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4
Mandamus can not be used to compel action that is merely-
discretionary with the agency or official. For example,
mandamus can be used to force a conservation commission to
issue an Order of Conditions within twenty-one days, or to
take some enforcement action if there is a clear violation
of the Wetlands Protection Act, but it cannot be used to
force a commission to include a specific condition in the
Order, or to issue an Enforcement Order worded in a certain
way.
"Takings"
This doctrine stems from a constitutional prohibition which
prevents the government from taking the property of any
person without just compensation. It is a requirement of
the due process clauses of the federal and state
constitutions. It is also the basis for lawsuits which seek
to limit the exercise of government authority by claiming
that a bylaw, regulation, or permit is so restrictive that
it "takes" the landowner's property.
To survive a "taking" challenge, a government restriction,
whether in the form of a legislative enactment, permit
condition (such as an Order of Conditions) , permit
disapproval , or Enforcement Order must meet three legal
tests. These legal standards are sometimes called the
"purpose test," the "means test," and the "impact test."
Some municipalities make their own mistake in defending a
"taking" lawsuit only by documenting police power
justification for the restriction, forgetting to meet the
means test and the impact test as well .
First, the restriction must be based on a valid police power
purpose. That is, it must have substantial relationship to
the public health, safety, or welfare. The courts define
these terms broadly and ordinarily will not second guess the
decision of a legislature or administrative agency as to
whether some public problem needs to be addressed. The
Wetlands Protection Act and Regulations clearly define the
public's interest in wetlands protection. As long as your
commission links its decisions and conditions to the
standards in the Act and Regulations, and does not exceed
its authority, the "purpose test" will be met. Similarly,
Massachusetts courts have upheld local wetland bylaws as
furthering valid public interests. Again, as long as your
commission links its decisions and conditions to the
standards of your bylaw, the "purpose test" will be met.
Enforcement Manual/Page 41
Secondly, a police power restriction must utilize a means of
implementation which is reasonably related to accomplishing
the valid police power purpose. In other words, a
legislative or administrative body, acting to protect public
health, safety, or welfare, must utilize an approach which
is rational to the end. Your commission cannot be
"arbitrary and capricious." Decisions must be well-grounded
in fact and in law.
Thirdly, a police power restriction must not have an undue
impact on the landowner or other person who is regulated.
This does not mean that a landowner has a legal right to
make a profit on the development of land, that local
agencies must approve the "highest and best use" which
appraisers identify, that a developer may sue to force a
pie-in-the-sky dream project, or that any particular loss of
real estate value is dispositive of the case. Instead, the
"impact test" means that the restriction must not deprive
the landowner of "all practical uses." Some courts describe
this as "all reasonable uses" or "all beneficial uses."
Some developers and town officials think that this doctrine
of "regulatory takings" deals with diminution of property
value. This is incorrect. Some landowners, eager to use
these constitutional doctrines, think of a "taking" lawsuit
as a way to get quick cash because they think they can prove
that the commission's request for data, or a restrictive
Order of Conditions, has reduced their profits - forgetting
that the applicable standard is whether the restrictions
deprived the landowner of all practical uses .
Even if your commission denies a project, or issues an
Enforcement Order stopping work and ordering restoration,
your commission has not deprived the landowner of all
reasonable uses . The landowner almost always has other
options. For example, a landowner denied one proposal can
file a new Notice of Intent on a modified or scaled-down
project. A landowner can comply with an Enforcement Order
by correcting the violations, then following the appropriate
steps to obtaining an Order of Conditions. In neither case
has the landowner been deprived of all use of the property.
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Enforcement Manual/Page 42
VII. OTHER PROGRAMS RELEVANT TO WETLANDS PROTECTION
A. Chapter 91 /Waterways Regulation Program
Massachusetts General Law Chapter 91 authorizes the
Waterways Program to regulate development in present or
former tidelands, Great Ponds (naturally occurring ponds at
least 10 acres in size), and certain rivers and streams.
Adopted in 1866, Chapter 91 ensures that public rights to
fish, fowl, and navigate are not unreasonably restricted and
that unsafe or hazardous structures are repaired or removed.
Chapter 91 also protects the waterfront property owner's
ability to approach his land from the water. In addition,
Chapter 91 helps protect wetland resource areas by requiring
compliance with the Wetlands Protection Act.
DEP administers this program, and if wetland resource areas
are involved, will not issue a final license until a final
Order of Conditions is issued. Each license issued by DEP
must state the conditions on which it is granted. These
conditions are enforced by DEP.
Conservation commissions should be aware of Chapter 91
licensing requirements, and should report any unauthorized
work, change in use, structural alteration or violation of
an Order of Conditions in a tideland, Great Pond, or river
to the DEP Regional Office or the Waterways Regulation
Program (see Contact /Reference List) .
B. Coastal & Inland Wetland Restrictions /Wetlands Conservancy
Program
Under the Coastal Wetlands Restrictions Act, G.L. c.130,
s.105, and the Inland Wetlands Restriction Act, G.L. c.131,
S.40A, restrictions have been imposed on development in
certain wetland resource areas after local hearings with
formal notice to landowners. Do not confuse these laws with
the Wetlands Protection Act. Restrictions and maps are
recorded in the Registry of Deeds. Restriction orders under
these laws generally permit very few activities in
restricted areas. Typically they allow docks, boat
channels, foot bridges, floats, utilities, cultivation of
shellfish and salt hay, beaches and recreation, and a
driveway to unrestricted land of the same owner where other
reasonable access is not available . Maintenance dredging
also may be permitted. Most other uses including filling
and dredging are prohibited.
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Wetland restriction order violations are enforced by DEP in
conjunction with the Attorney General's Office, and can lead
to stiff fines and a possible jail sentence. Any commission
that suspects a wetland -estriction order has been violated
should contact the Wetlands Conservancy Program (see
Contact /Reference List) .
C. Massachusetts Environmental Policy Act (MEPA)
The Massachusetts Environmental Policy Act (MEPA) , G.L.
c.30, ss.61-62H; sets out a review process designed to
inform the public about environmental impacts from projects
needing state permits or requesting state funds. MEPA is
administered by the Secretary of Environmental Affairs,
through the "MEPA Unit" staff.
Any state agency project, or a private proposal needing
state permits or state funds, must file an Environmental
Notification Form (ENF) if it exceeds a review threshold for
the project size or impact specified in the MEPA
regulations. The commission should notify MEPA if it
encounters a project exceeding these thresholds.
For projects involving wetlands or waterbodies, the
following ENF thresholds are important: issuance of a DEP
Superseding Order of Conditions permitting any fill or
structure within a regulatory floodway delineated under the
National Flood Insurance program; alteration of a primary
dune; construction in a Velocity Zone on a barrier beach;
new, expanded, or reconstructed armoring of a coastal bank;
construction of a bridge or road providing access to a
barrier beach or construction of utility lines servicing
structures on a barrier beach; issuance of Superseding Order
permitting any dredging, filling, altering, or removal of
1,000 square feet or more of salt marsh, or 5,000 square
feet of bordering vegetated wetlands, 500 feet or more of
bank, or one -half acre or more of any other area subject to
the Wetlands Protection Act; issuance of any variance from
the wetlands or waterways regulations; issuance of a Chapter
91 license for any non -water -dependent use or other large
project; and issuance of water pollution permits for
discharges over certain levels.
Some projects automatically trigger full Environmental
Impact Reports (EIRs) . These include: projects entailing
direct alteration of 50 or more acres of land, one or more
acres of bordering vegetated wetlands or salt marsh, or ten
or more ares of any other Resource Area protected by the
Wetlands Protection Act; stream channelization or channel
relocation of 2,000 feet or more; Chapter 91 licenses for
non-water-dependent use of one or more acres of tidelands;
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new marinas of 250 slips or more; construction of new non-
residential projects with gross interior floor space
(excluding structure parking) of 500,000 square feet or
more; construction of 350 or more new residential units; and
a variety of other large projects.
D. Administrative Penalties
The primary purpose of the Administrative Penalties Act,
G.L. c.21A, s.16, is to strengthen enforcement of
environmental statutes and regulations by rectifying
violations which may have eluded enforcement because of
limited state resources.
The Act provides DEP with the power to assess penalties
against violators of environmental laws or regulations
(without first going to court) through an administrative
process in which the initiative for going to an adjudicative
hearing or challenging the penalty in court must be taken by
the alleged violator, rather than DEP.
Administrative penalties can, and have, been assessed
against wetland violators. Commissions can refer serious
wetland violations to the nearest DEP regional office for
possible enforcement under the Administrative Penalties Act.
Complete documentation, including the commission's attempts
to bring about compliance, should be provided to DEP.
E. Water Quality Certification
Under Section 401 of the federal Clean Water Act, anyone
proposing any activity requiring a federal permit that will
result in a discharge to waters or wetlands is required to
obtain a certification that the project will comply with
applicable state water quality standards. For purposes of
Section 401, "discharges" include the filling of wetlands
for which the U.S. Army Corps of Engineers (Corps) issues
permits under Section 404 of the Clean Water Act, activities
licensed by the Federal Energy Regulatory Commission (FERC) ,
and discharges associated with work in water bodies under
Sections 9 and 10 of the Rivers and Harbors Act. Water
Quality Certification by the Department ensures that a
project will not jeopardize the quality or uses of surface
waters and wetlands of the Commonwealth.
A Section 404 permit is required from the Corps for the
discharge of dredged or fill material to waters of the
United States. The term "waters of the United States"
defines the extent of geographic jurisdiction of the Section
404 program. Waters of the United States includes navigable
2/94
Enforcement Manual /Page 45
waters and their tributaries, adjacent wetlands, and
isolated wetlands as delineated by the Corps. A discharge
of dredged or fill material involves the physical placement
or excavation of soil, sand, gravel, dredged material or
other such materials in waters or wetlands .
DEP's Division of Wetlands and Waterways administers
Massachusetts' certification program for projects resulting
in the loss of wetlands or dredging <100 cubic yards. DEP's
Division of Water Pollution Control reviews non-wetland 4 01
projects, dredging over 100 cubic yards, and FERC licenses.
Any commission that suspects a Water Quality Certificate is
being violated or has not been obtained should contact the
DEP Regional Office.
F. Federal Clean Water Act, Section 4 04
Section 404 of the Clean Water Act regulates the discharge
of dredged material into the waters of the United States .
Its purpose is to minimize adverse effects of discharges and
dredged or fill material through the application of
guidelines which prohibit discharges which cause
"significant degradation" to the aquatic ecosystem or for
which there are practicable, less damaging alternatives.
Adoption of measures to minimize adverse effects of
discharges which are allowed must be taken. Section 4 04 is
administered by the U.S. Army Corps of Engineers (Corps),
but the U.S. Environmental Protection Agency (EPA) is given
responsibility for reviewing permits issued by the Corps.
Section 404 defines wetland resource areas differently than
the state Wetlands Protection Act, so the commission's
jurisdiction may not coincide with the Corps' . However, in
many situations, the Corps and conservation commission do
have concurrent, but independent jurisdiction. Therefore, a
wetland violation under the state Act may also be a
violation under Section 404. The commission should notify
the Corps whenever unauthorized work is discovered in a
wetland.
G. Public Nuisance Suits
The state Attorney General has authority to bring nuisance
actions against those whose action or inaction has
injuriously affected the safety, health, or morals of the
public. Examples related to wetlands protection include
actions concerning navigable water obstructions, pollution
that results in contamination of public wells or fisheries,
and development that results in widespread flooding. The
Attorney General can prosecute the case in either civil or
2/94
Enforcement Manual /Page 46
criminal court. The typical remedy is an injunction to abate
the nuisance.
If a private individual can show that he/she has suffered
special damages, unlike the rest of the public, he/she can
bring an action in private nuisance as discussed below.
2/94
Enforcement Manual /Page 47
VIII. PRIVATE REMEDIES
A. Nuisance Suits
Private nuisance law prohibits the unreasonable use of
property so as to substantially interfere with the use and
enjoyment of another's property. Examples include actions
involving flooding, drainage changes, water pollution, and
drinking water contamination. A plaintiff who can show that
he/she has suffered damage due to the defendant's action can
recover money damages and request an injunction to abate the
nuisance .
B. Citizen Suits
The "Ten Citizen" statute, G.L. c.214, s.7A, allows any ten
citizens of the Commonwealth to bring a civil action for the
purpose of enforcing any environmental statute, bylaw,
ordinance, or regulation. To enforce a wetlands violation,
the "ten citizens" might be commission members, neighbors,
members of civic organizations, or individuals concerned
about wetlands. The potential defendants also are typically
the developer and contractor who are doing the work or the
conservation commission which ignored the violation. The
statute specifically prohibits the recovery of damages, but
authorizes the use of Temporary Restraining Orders,
injunctions, and other forms of equitable relief. Successful
plaintiffs may recover costs and expert witness fees, but
not attorney fees .
2/94
Enforcement Manual /Page 48
APPENDIX
A
SAMPLE CONDITIONS
1. The provisions of this Order shall apply to and be binding
upon the applicant, its employees/ and all successors and assigns
in interest or control.
2. In conjunction with the sale of any lot governed by this Order
the applicant shall submit to the conservation commission a
signed statement by the buyer that, he/she is aware of an
outstanding Order of Conditions on the development and has
received a copy of this Order of Conditions.
3. In advance of any work on this project the applicant shall
notify the conservation commission and at the request of the
commission shall arrange an on site conference among the
contractor and the applicant to ensure that all of the conditions
of this Order are understood.
4. The applicant or its successors shall notify the conservation
commission in writing of the identity of the on site construction
supervisor hired to coordinate construction during the work on
the site and to ensure compliance with this Order.
5. Commencing with the issuance of this Order, and continuing
through the existence of same, the applicant shall submit to the
conservation commission a written progress report every
months detailing what work has been done in or near resource
areas, and what work is anticipated .to be done over the next
per iod .
6. The applicant shall have on hand at the start of any soil
disturbance, removal or stockpiling, a minimum of hay bales
and sufficient stakes for staking these bales. Said bales shall
be used for only the control of emergency erosion problems, and
shall not be used for the normal control of erosion, as described
in the Erosion Control Plan submitted with the Notice of Intent.
7. All erosion prevention and sedimentation protection measures
found necessary during construction by the conservation
commission will be implemented at the direction of the
comm iss ion .
8. Members of the conservation commission or its agents shall
have the right to enter upon and inspect the premises to evaluate
compliance with this Order of Conditions. The conservation
commission reserves the right to require, following field
inspection, additional information or resource protection
measures .
APPENDIX
B
WHAT TO BRING ON SITE VISITS: A SUGGESTED CHECK LIST
"Routine" Visit
Consent obtained from landowner prior to visit
Project file (RFD, NOI, or Order, locus plans, site
plans, abuttor comments, etc.)
Notebook and waterproof pens
Tape measure (100*)
Plant field guide and/or collecting and sampling
materials
Handlens
Camera
Copy of Wetlands Protection Act, Regulations,
and local bylaw
Shovel for soil samples
Additional Items for Inspection of Suspected Violations
(Where you may not have access to the property)
Camera with telephoto lens (High speed film (ASA 400 or
1000) will allow photographs in low light conditions
USGS topographical maps, FEMA floodplain maps, USSCS soil
maps, DEP wetland restriction maps, or town wetland maps
which identify wetland resources in the suspect area
Aerial photographs or other photographs showing the area
"before" the suspect violation
Binoculars
Appendix C
H. 1762 Chapter 388
AN ACT RELATIVE TO WETLANDS
PROTECTION
Whereas, The deferred operation of this act would tend
to defeat its purpose, which is to immediately provide for
wetlands protection, therefore it is hereby declared to be an
emergency law, necessary for the immediate preservation of the
public convenience.
Be it enacted by the Senate and House of
Representatives in General Court assembled, and by the
authority of the same, as follows:
SECTION 1. The twenty-fourth paragraph of section 40
of chapter 131 of the General Laws, as appearing in the 1988
Official Edition, is hereby amended by adding the following
two sentences: - In addition to the other duties provided for in
this section, a conservation commission and its agents, officers,
and employees; the commissioner, his agents and employees;
environmental officers, and any officer with police powers may
issue enforcement orders directing compliance with this section
and may undertake any other enforcement actions authorized by
law. Any person who violates the provisions of this section
may be ordered to restore property to its original condition and
take other actions deemed necessary to remedy such violations.
SECTION 2. Said section 40 of Chapter 131, as so
appearing, is hereby further amended by inserting after the
twenty-fourth paragraph the following paragraph: -
No person shall remove, fill, dredge or alter any area
subject to protection under this section without the required
authorization, or cause, suffer or allow such activity, or leave
in place unauthorized fill, or otherwise fail to restore illegally
altered land to its original condition, or fail to comply with an
enforcement order issued pursuant to this section. Each day
such violation continues shall constitute a separate offense
except that any person who fails to remove unauthorized fill or
otherwise fails to restore illegally altered land to its original
condition after giving written notification of said violation to
the conservation commission and the department shall not be
subject to additional penalties unless said person fails to
comply with an enforcement order or order of conditions.
SECTION 3. The last paragraph of said chapter 40 of
said chapter 131, as so appearing, is hereby amended by .striking
out the last two sentences.
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Appendix D
COMMONWEALTH OF MASSACHUSETTS
, ss. District Court
(county) WARRANT NO.
In The Matter Of
APPLICATION FOR ADMINISTRATIVE ENTRY & INSPECTION
WARRANT
Pursuant to G. L. c. 131 s. 40
NOW COMES the Conservation Commission by-
its member/agent , , and, based upon
the information contained in the attached - page affidavit,
requests that this Court issue an administrative warrant for the
entry, inspection, photographing and sampling of the soils and
vegetation on the property owned by
located at in , Massachusetts.
The requested entry and inspection is authorized by the
Wetlands Protection Act, G. L. c. 131 s. 40, subparagraphs eleven
and twenty- four. The Act provides, in part, at paragraph eleven:
The conservation commission and its agents, officers
and employees and the commissioner of environmental
quality engineering and his agents and employees, may
enter upon privately owned land for the purpose of
performing their duties under this section.
(Pursuant to Chapter 240 s. 101 of the Acts of 1989, the
Department ' s name was changed to the Department of Environmental
Protection.) The Act further provides at paragraph twenty- four,
as amended by Chapter 388 of the Acts of 1990:
In addition to the other duties provided for in this
section, a conservation commission and its agents,
officers and employees; the commissioner, his agents
and employees; environmental officers, and any officer
with police powers may issue enforcement orders
directing compliance with this section and may
undertake any other enforcement action authorized by
law.
Based upon personal knowledge and information received,
-2-
there is probable cause to believe that filling and alteration of
resource areas without a permit as required by the Wetlands
Protection Act, G. L. c. 131 s. 40 has occurred on these
premises. The Conservation Commission
therefore offers the affidavit attached and incorporated herein,
as specific evidence of an existing violation of a regulatory-
scheme .
Therefore, the Conservation
Commission, in light of the probability of an on-going violation
and pursuant to the provisions of G. L. c. 131 §40, seeks the
assistance of this Court.
Respectfully Submitted on behalf of the
Conservation
Commission
by:
Signed under the penalties of perjury,
Dated: (signature)
( name )
Then personally appeared the above named and made oath that the
foregoing application by him subscribed is true.
Signed before me this day of , .
Notary Public
My commission expires :
COMMONWEALTH OF MASSACHUSETTS
, ss .
(county) District Court Department
AFFIDAVIT OF IN SUPPORT OF
ADMINISTRATIVE WARRANT PURSUANT TO G.L. C. 131 §4 0
I, , being duly sworn, depose and say:
1) I am a currently employed by
or am a member of the Conservation
Commission (hereinafter "Commission") . I have been employed by or
have been a member of the Commission for years and am an
authorized agent of the Commission for the purpose of investigating
and inspecting any records, condition, equipment, practice or
property relating to the Commission's duties under the
Massachusetts Wetlands Protection Act, G.L. c.131 §40 (hereinafter
the "Act") .
2) Pursuant to the Act, the Commission has responsibility for
implementing standards and requirements for the protection and
restoration of wetland areas throughout the Commonwealth. Pursuant
to the Act, regulations governing wetlands activities are published
at 310 CMR §10.00 et seq further defining the Commission's role in
enforcing the Act .
3 ) is the owner of the property
located at in ,
Massachusetts. (hereinafter "the premises").
4) Located on the premises is property subject to the
jurisdiction of ch. 131, §40, to wit:
(describe type of wetland or protected area, location relative
to structures or geographic features on the premises, and/or
append a map depicting the protected area) .
5) On (date) , I received information from
conditions exist on the premises
.that the following activities and/or
Said activities and/or conditions constitutes violation (s) of ch.
131, §40.
-2-
6) On , at approximately ,
I attempted to enter and inspect the premises. Said inspection was
to be conducted to confirm the existence of violations of the Act
on the premises. Prior to the attempted inspection I spoke with
7) I identified myself and requested permission to enter and
inspect the premises, stating that based on
, the Commission has reason to believe that
there are ongoing wetlands violations on the premises at the
present time. Pursuant to the Act, the Commission has authority to
enter and inspect the premises .
8) would not permit me to enter the
premises and informed me that the only way I would be permitted to
enter the premises was with an Administrative Warrant .
9) The Act provides:
The conservation commission and its agents, officers and
employees and the commissioner of environmental quality
engineering and his agents and employees, may enter upon
privately owned land for the purpose of performing their
duties under this section.
Based upon the foregoing circumstances, I seek an
Administrative Warrant to:
1 . enter the premises located at in
, Massachusetts to conduct any or all of the
following activities:
2 . observe any violations of the Act in the area
subject to the jurisdiction of ch. 131, §40, as described
in paragraphs 4 and 5, above;
3 . photograph any evidence of violations of the Act on the
premises .
-3-
10) Said inspection shall begin as soon as possible after the
issuance of the Administrative Warrant and shall be completed with
reasonable promptness, taking into consideration the scope and
purpose of the inspection.
11) A prompt return shall be made to the court showing that the
inspection has been completed no later than ten (10) days from the
date of the issuance of the Administrative Warrant.
THEREFORE, I respectfully request that the court issue an
Administrative Warrant authorizing me to enter and inspect the
premises to observe, document, sample and photograph evidence of
violations of the Act.
Signed under pains and penalties of perjury.
(name)
(date)
Before me, a notary public of the State of Massachusetts, on
this day of , , personally appeared
_, and upon oath stated that the
facts set forth in this application are true to his knowledge and
belief .
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
, ss. District Court Department
(county) Warrant No.:
adk: ni strati ve warrant and return
ISSUED PURSUANT TO G.L. c. 131 s. 40
TO THE CONSERVATION COMMISSION AND
ITS PERSONNEL OR DULY AUTHORIZED AGENTS:
Application having been made this day of
, before , for
the issuance of an administrative warrant of entry, inspection,
sampling and photographing of evidence pursuant to the
Massachusetts Wetlands Protection Act, G.L. c. 131 §4 0, and the
regulations promulgated thereunder at 310 CMR 10.00 et seq. . and
the Court being satisfied that there has been sufficient showing
that reasonable standards for conducting an administrative
inspection have been satisfied.
WE THEREFORE COMMAND YOU, to conduct, during normal business
hours, an administrative inspection of the premises owned by
and located at in
, Massachusetts .
WE THEREFORE COMMAND YOU, to carry out the administrative
inspection pursuant to G.L. c. 131 §40 for the purpose of
observing, documenting, sampling and photographing evidence of
violations of G. L. c. 131 §4 0, which inspection shall consist of
one or more of the following activities :
1 . entry of the premises located at
in , Massachusetts for the
purpose of inspecting
(describe types of wetland or protected area, location
relative to structures or geographic features)
, located on said premises .
2 . the photographing of any evidence of violations of
G.L. c. 131 §40 on the premises located at
in ,
Massachusetts .
-2-
YOU ARE FURTHER AUTHORIZED to utilize a Police Officer as
you may require to conduct the administrative inspection
authorized by this warrant.
WE FURTHER COMMAND YOU to begin said inspection as soon as
practicable after the issuance of the Administrative Warrant,
with reasonable promptness during normal business hours.
A PROMPT RETURN shall be made to the County
District Court Department showing that the inspection has been
completed no later than days from the date of issuance of
the Administrative Warrant, provided that in the event there is
need for additional time you are hereby authorized to request the
court for an extension beyond said days.
WITNESS, , Esquire,
Justice at County District Court, aforesaid, this
day of , .
Justice of County
District Court
RETURN OF ADMINISTRATIVE WARRANT
I received the attached Administrative Warrant on
and have executed it as follows:
On at approximately-
carried out the authorized inspection. I inspected the following
areas . I
took photographs of those areas .
Signature
Subscribed and sworn to me this day of
Clerk Magistrate
APPENDIX
E
Inspection / Investigation Report
Wetland Violation Report
Please complete this report for each violation, or series of
violations, at a location.
1. Date of Occur ence ( s ) :
2. Location:
3. Ovner of Property:
Address :
Telephone No . :
4. Business/Trust Name:
Address :
Telephone No. :
5. Persons Responsible for Violation:
#1 Name:
Address :
Participation:
92 Name:
Address :
Participation:
6. Activity: (Check as appropriate)
Remove To Where:
Pill
Type:
Dredge
Amount :
Alter
Hov:
7. Equipment used:
Vechicles: 1. License #
2 . License $
3 . License /
8. Type of Wetland (check as appropriate):
(a)
Any
bank
the
ocean
any
freshwater wetland,
any
es tuary
any
coastal wetland,
any
creek
any
beach,
any
river
any
dune, bordering on
any
s cream
any
f lat ,
any
pond
any
marsh ,
or
any lake
or a
ny swamp
(b) Land under any of the water bodies listed above.
(c) Land subject to tidal action.
(d) Land subject to coastal storm flowage.
(e) Land subject to flooding.
9. Notice of Intent filed: date:
(attach copy)
10. Order of Conditions: date:
11. Superseding Order of Conditions date:
12. Cease and Desist Order(s): date:
Enforcement Order(s) date:
(attach copy)
13. Police Action (if any):
(attach copy)
14 . Witnesses :
Name Address Telephone #
1 .
2.
3.
A.
15. Other actions taken: (describe)
16. Conservation Commission Contact Person:
Telephone Number:
Completed by: Date
Return to:
■
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Appendix F
Violation Notice
DEP #
Issued by the Conservation Commission
Issued to :
Date:
Property:
The Conservation Commission has determined
that the activity described below is in violation of the
Massachusetts Wetlands Protection Act, G.L. c.131, 8.40 and the
Town of Wetland Bylaw, s. .
Extent and type of activity:
If this violation is not immediately addressed as requested
below, an Enforcement Order will be issued, which may include a
stop-work order and which may be followed by legal action that
could result in fines and/or imprisonment.
Requested Action:
Questions concerning this violation should be directed to the
Conservation Commission, telephone #
Signed :
I
APPENDIX
310 CMR 10.99
Form 9
tia Commonwealth
■ of Massachusetts
DEP File No.
City/Town
Applicant
(To be provided by DEP)
From.
To_
Enforcement Order
Massachusetts Wetlands Protection Act, G.L. c. 131, §40
and Town of Good Wetlands Protection Bylaw
Good Conservation Commission
Issuing Authority
Not-so-good Developer
Date of Issuance .
December 8, 1989
Property lot/parcel number, address One Main Street
Extent and type of activity:
See attached Enforcement and Restoration Order
The Good Conservation Commission has determined that the activity described
above is in violation of the Wetlands Protection Act. G.L c. 1 31 , §40, and the Regulations promulgated pur-
suant thereto 31 0 CMR 1 0.00, because:
& Said activity has been/is being conducted without a valid Order of Conditions.
□ Said activity has been/is being conducted in violation of an Order of Conditions issued to
, dated
File number Condition numbers)
□ Other (specify)
The Good Conservation Commission hereby orders the following:
C3 The property owner, his agents, permittees and all others shall immediately cease and desist from further
activity affecting the wetland portion of this property.
□ Wetland alterations resulting from said activity shaft be corrected and the site returned to its original con-
dition.
9-1
Effective 11/10/89
Issued by Commission
Z Completed application forms and plans as reauired by the Act and Regulations sna!! be filed with the
on or before (flate).
ana no further work shall be performed until a public hearing has been held ana an Oaer of Conditions
has been issued to regulate said work. Application forms are available at: ;
I? The property owner shall take every reasonable step to prevent further violations of tne act.
2? Other (specify)
See attached Enforcement and Restoration Order
Failure to comply with this Order may constitute grounds for legal action. Massachusetts General Laws Chap-
ter 1 31 . Section 40 provides:
Whoever violates any provision of this section shall be punished by a fine of not more
than twenty-five thousand dollars or by imprisonment for not more than two years or both.
Each day or portion thereof of continuing violation shall constitute a separate offense.
Questions regarding this Enforcement Order should be directed to: Conservation Commission Agent
Issued bv Good Conservarinn Commission
Signature(s)
(Signature of delivery person
or certified mail number)
9-2b
SAMPLE
ENFORCEMENT AND RESTORATION ORDER
MASSACHUSETTS WETLANDS PROTECTION ACT, C.L. c. 131, §A0
TOWN OF WETLANDS BYLAW
This Enforcement and Restoration Order is Issued by the Conservation
Commission to compel compliance with the Massachusetts Wetlands Protection Act
and, independently, the Town of Wetlands Bylaw. We order restoration
of resource areas illegally filled without following the procedures of state
and local law requiring pre-construction review by the Conservation Commission
and compliance with design specifications and performance standards for such
work. This Order confirms agreement by Mr. through his legal
counsel as described below, to carry out this restoration. This Order is
issued both to an owner of the property, , and to the
contractor who performed the work, . Both are independently
responsible for the violations since the Wetlands Protection Act and the
Wetlands Bylaw regulate any person who dredges, fills, removes, or alters any
of the protected wetlands and related water resources and adjacent nrcas
without the necessary approvals.
FACTS
Members and agents of the Conservation Commission in November witnessed
that a stream was piped and wetlands were filled and altered on the narcel at
the end of Street owned by . On November , the
Commission issued an Enforcement Order mandating that Mr. cease any
further alterations of the land area, requesting that a representative appear
at the next meeting of the Commission on November , and mandating that
completed application forms and plans be filed by December ,
On December , the Chairman of the Commission, accompanied by the con-
sultant for the Commission, of , conducted a site
inspection and observed that several activities regulated by the Act and the
Bylaw had occurred, including dredging, filling, removing, and altering a bank
of a body of water, a marsh and freshwater wetland bordering a body of water,
and land under water, as well as similar activities within 100 feet of the
bordering vegetated wetlands, all without notification to and approval by the
Commission after public hearing. Specifically, they observed obvious evidence
of filling the wetlands and the stream, damming the stream, extensive grading,
construction of roads, diversion of surface water, discharge of pollutants
including sediment, and destruction of plants.
These matters were reported to the Commission at its regularly scheduled
aeecing oa December , . The Commission voted unanimously to issue this
Inforcement and Restoration Order. Mr. had filed a Notice of Intent
10 December , seeking approval of this road construction only for
;emporary access to the rear land co perform percolation tests. Ac this
December meeting, this Notice of Intent was withdrawn by counsel for Mr.
subsequently, the legal counsel for the Commission visited the site, discussed
.he matter with , counsel for Mr. ,
, another counsel for Mr. , and , a
planner for Mr. . He is a principal of the engineering, surveying,
„nd planning firm of They were
accompanied by Mr. . . Counsel for the Commission requested notifica-
tion by December , whether Mr. intended to leave the road in
pluce «>nd seek wetlands and subdivision approvals, or instead to remove the
road and restore the area.
On December , at 5:45 p.m., counsel for Mr. telephoned
Commlbslon counsel to state that Mr. agreed to remove and restore.
CONCLUSIONS
Both Mr. , as an owner of the property, and Mr. , as contractor
performing the work, have violated the Wetlands Protection Act and the
Wetlands Bylaw. The dirt road, which ha6 been constructed through a protec-
table resource area composed of a stream, its banks, and the bordering
vegetated wetlands which extent outward from it, has altered between 4,000 and
7,000 square feet of resource area and a significant amount of what is known
as the buffer zone. The 6tream has been piped through a concrete pipe and
damming of the surface water has resulted. Erosion and consequent siltatlon
are occurring both on the road through the wetlands and on the steep banks
near it. The appropriate remedy is removal of all material from wetlands and
the restoration of the wetlands and the buffer zone to their condition prior
to this work. This is essential prior to further freezing of the soils in
order to minimize the effort necessary within the resource area. This
restoration must be accompanied by appropriate erosion control measures. It
.ilso is appropriate to take these measures immediately since the onset of snow
and the freezing of the ground could lower the af fectiveness of erosion
control measures. Snow melt and spring flooding would aggravate the problem
and cause an increase in turbidity in downstream water.
ORDER
The Commission, in accordance with its vote on December , , hereby orders
as follows:
1. The propety owner, his agents, permittees, and all others shall
immediately cease and desist from further activity affecting the
wetland portion of this property and the buffer zone, except as is
ordered by this Commission to accomplish restoration and protective
measures required herein.
2. Alterations of the wetland portion of this property and the buffer
zone shall be corrected and the site returned to its original
condition to the satisfaction of the Commission.
3. This restoration shall be commenced within 24 hours of receipt of this
Order and completed within 14 days of receipt.
4. Within 24 hours of receipt of this Order, Mr. or his agent
shall telephone the Chairman of the Conservation Commission at the
telephone number shown below to confirm receipt and agreement to
comply.
5. Restoration shall comply with the attached "PROTOCOL FOR RESTORATION
OF DISTURBED WETLAND AREA/ PARCEL AT STKEET"
dated December , , and the attached "SITE PLAN SHOWING
APPROPRIATE LOCATIONS OF RESTORATION ACTIVITIES" prepared by the
consultant' to the Commission.
6. Within 24 hours of completion of the restoration, Mr. or his
agent shall telephone the Chairman of the Conservation Commission to
notify the Commission of this completion.
7. Questions regarding this Order should be directed to
Chairman, Conservation Commission,
"he Commission invites technical
questions be directed to the Commission's consultant,
8. It is not necessary for a Notice of Intent to be filed with the
Commission to carry out this restoration provided it occurs as ordered
herein .
Please take note that failure to comply with this Order will result in further
enforcement action by the Commission under both the Wetlands Protection Act
and the Wetlands Bylaw. The Bylaw provides for criminal fines of $300. The
Act provides for a fine up to $25,000 or imprisonment up to two years. In
addition, the Act can be the subject of administrative money penalties Imposed
by the Massachusetts Department of Environmental Quality Engineering. Each
day or portion thereof of continuing violation shall constitute a separate
offense .
HAND DELIVERY TO MR. BY
SIGNATURE OF DELIVERY PERSON
DATE
TIME
CERTIFIED MAIL TO MR.
CERTIFIED MAIL NO. DATE
CERTIFIED MAIL TO MR.
CERTIFIED MAIL NO. DATE
cc :
D46/46
SAMPLE
PROPOSED AMENDMENT TO GENERAL BY-LAVS
ARTICLE I
Section 1 - Enf or cement
a) Criminal Complaint
Whoever violates any provision of these by-laws nay be
penalized by indictment or on complaint brought in the
district court. Except as say be otherwise provided by law
and as the district court may see fit to impose, the maximum
penalty for each violation, or offense, brought in such
manner, shall be three hundred dollars.
b) Noncriminal Disposition
Whoever violates any provision of these by-laws, the
violation of which is subject to a specific penalty, may be
penalized by a noncriminal disposition as provided in
General Laws, Chapter 40, section 21D. The noncriminal
method of disposition may also be used for violations of any
rule or regulation of any municipal officer, board or
department which is subject to a specific penalty.
Without intending to limit the generality of the
foregoing, it is the intention of this provision that the
following by-laws and sections of by-laws are to be included
within the scope of this subsection, that the specific
penalties as listed here shall apply in such cases and that
in addition to police officers, who shall in all cases be
considered enforcing persons for the purpose of this
provision, the municipal personnel listed for each section,
if any, shall also be enforcing persons for such sections!
each day on which any violation exists shall be deemed to be
a separate offense.
GENERAL BY-LAWS
Article X
Section 10 Dredging*. Silling or Altering
Wetlands
(Conservation Commission Members
and Agent) $ 50. 00
Section 13 loitering $ 50.00
Section 20 Curfew $ 50.00
Section 21 Dumping refuse on private
property, without permission
(Health Agent) $ 50.00
Section 22
Anti-Noise regulation
(Health Agent)
$ 50.00
Barnstable Citation Porn
4855
TOWN OF BARNSTAiLE MOTICE OF VIOLATION
Of TOWN BYLAW OR REGULATION
(Oai* mi «ut imkal 19
To: ;
(dry. W«i«. Zip Ca*a)
YOU HAVE BEEN OBSERVED VIOLATING
by
(act wammtmg vi«ui>en>
at (A.M.) (P.M.) on 19.
(mm W *•>« r< ««wt.w)
at
|pUu •■•Uiton)
I HEREBY ACKNOWLEDGE RECEIPT OF THE
FOREGOING CITATION:
(&>9A«iwr« of •ll«n««r)
Q Unable to obtain signature of offender.
THE FINE FOR THIS OFFENSE IS $ .
YOU HAVE THE FOLLOWING ALTERNATIVES WITH
REGARO TO DISPOSITION OF THIS MATTER:
(1) You may elect to pay the above fine, either
by appearing in person between 9:00 A.M. ano
5:00 P.M.. Monday tnrougn Friday. legal holidays
excepted, before: TH£ CLERK-MAGISTRATE
District Court £> oertment
First Barnstable Division
Court Compound. Main Street
Barnstable, Ma. 02630
or by mailing a check, money order or postal note
to the Clerk<Megistrate WITHIN TWENTY ONE (21)
DAYS Of THE DATE Of THIS NOTICE. This will
operate as • final disposition of the matter, with
no resulting criminal record.
(2) if you desire to contest this matter in a non-
criminal proceeding, you may do so by making a
written request to the above CLERK-MAGISTRATE
for a hearing. A determination oy a Judge. Clerk.
Magistrate or Assistant Clerk will operate as a fi-
nal disposition, witn no resulting criminal racoro.
provided any fine imposed by tnat officer is paid
•itfwn the time specified.
(3) If you fail to pay the above fine or to ap-
Kr as specified. • criminal complaint may be
ted against you.
I HEREBY ELECT the first option above, eon-
fess to the offense Charged, and enclose payment
in the amount of *
&>0A«IV<« ________________________________
APPENDIX
J
Procedures Guide
Non-Criminal Method of Disposition
For Violations of By-Laws, Rules/Regulations
1. Explain to offender that you believe a violation of a
town by-law, rule or regulation has occurred.
2. Explain to offender that in the exercise of
discretionary power given to you as an enforcement officer
for this specific provision that you intend to issue a non-
criminal 'ticket' rather than to seek a criminal complaint
against them.
3* Explain the procedures which are available to offenders
under this process. These are printed on the violation
notice itself.
4. Pick up lower end of one complete set of violation
notice forms and place both cardboard cover and metal cover
beneath the set.
5. Using a ball point pen, and while pressing down hard
(remember you are making multiple copies and the last page
must be readable as it is to be a permanent record), fill in
the blank spaces provided:
the name and address of the offender
the designation of the specific section which
was violated (e.g. Article 7, Section 7, General
By-Laws) Refer to cardboard cover which contains
complete listing of all sections covered by these
procedures •
enter the description of the act constituting the
offense, as it is printed on the card board cover,
(e.g. consumption of alcoholic beverage on public
property)
enter the time, date and place of occurrence
sign your name to the notice
enter the applicable fine (see cardboard cover)
request the offender to sign their naae indicating
receipt of a copy of the notice, explaining, if
necessary, that the signature is not an admission
of guilt.
if offender refuses to sign, so indicate on form.
6. Give offender a copy of the citation, again explain to
them the procedures to be followed, all of which are printed
on the citation form.
7. If offender refuses to accept the form, or if for any
other reason you are unable to give a copy of the citation
to them in person, you may mail or otherwise deliver a copy
to them.
(NOTE: The notice may be delivered, or mailed by the
enforcing person, the commanding officer, or head of
the enforcing person's department, with fifteen days
after the said violation to the last known address of
the offender. A certificate of the person so mailing
a copy shall be prima facie evidence of such mailing.
8. Two copies of the citation (the original for the
district court, and the copy for the town's records) must be
dropped off at the Police Department within twenty-four
hours following issuance of the citation. It is good
practice, unless otherwise prevented from doing so, to leave
all citations at the police department at the end of your
working day .
9. An incident report summarizing the circumstances in
which you have issued each citation must be prepared by you
at the time the notice of violation is written and kept
available until you are advised it is no longer needed. If
the offender requests a hearing, or if a criminal complaint
is later sought, it will be necessary to have such a
contemporary record of what happened. You will be notified
if this becomes necessary.
Appendix K
COMMONWEALTH OF MASSACHUSETTS
NOUFOLK, ss.
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
C.A. NO.
TOWN OF THROUGH ITS
CONSERVATION COMMISSION,
Plaintiff
V
Defendants
VERIFIED COMPLAINT
1. Plaintiff, Town of through its Conservation Commission,
duly organized and constituted in accordance with M. G.L. c. 40,
§SC, is charged with the enforcement within the Town of of
M. G.L. c. 131, §40, the Wetlands Protection Act.
2. Defendant,
the premises located at
setts. Defendant,
also resides at said , the ''premises" referred
to in the exhibits appended hereto and made a part hereof.
is a resident and the owner of
, Massachu-
3. This Court has jurisdiction over this matter and may order
injunctive relief under M.G.L. c. 131, §40, the Wetlands Pro-
tection Act.
4. Prior to, on or about and subsequent to April 23, the
defendants have removed, filled, dredged and altered portions
of the premises that are banks and freshwater wetlands, border-
ing on creeks or streams and land under said creeks or streams;
as well as land subject: to flooding. See Affidavit of
annexed hereto and made a part hereof as Exhibit "A".
-2-
5. Said removing, filling, dredging and altering has been
performed by defendants without filing written notice of their
intention to perform these activities with the plaintiff, as
required by M.G. L . c. 131, §40.
6. On or about April 23, . , defendants were delivered a
written request by the plaintiff to cease the work, described
supra . Said written request also informed defendants of the
required procedures under M.G.L. c. 131, §40, including the
required filing of a notice of intent. A copy of the statute
was enclosed with this cease and desist request. Said re-
quest is appended hereto and made a part hereof as Exhibit "B".
7. On or about April 27, plaintiff informed defendants'
counsel, of its request that defendants
cease and desist their removing, filling, dredging and alter-
ing. Defendants' counsel responded that a superior court
judgment determining that installation of a tennis court on
defendants' premises did not, under the Zoning Bylaw for the
Town of , require the permission of any munici-
pal agency, also eliminated the need for defendants to apply
to the plaintiff Conservation Commission. A true copy of this
judgment is appended hereto and made a part hereof as Exhibit C.
8. On or about May 14, plaintiff notified defendants,
through their counsel, that restraint of defendants' removal,
filling, dredging and altering activities would be sought by
plaintiff. A true copy of this notification is appended hereto
and made a part hereof as Exhibit D.
9. At this time the activities of the defendants described
supra , are continuing in violation of c. 131, §40.
10. Plaintiff and its citizens have suffered and are suffering
irreparable harm by defendants' activities that are in violation
of M.G.L. c. 131, §40. This harm, if not enjoined, consists
of reduced flood storage capacity and destruction of wetland
vegetation; denial of the public right to hearing and comment
upon said activities and their effects ; deprivation of plain-
tiff 's right, through its Conservation Commission, to review
and approve in advance said activities under a bona fide
Order of Conditions; and deprivation of plaintiff's right to
file such an Order with the Registry of Deeds.
11. No irreparable harm will occur to defendants if their
activities are enjoined, as:
A. these activities are easily postponed;
B. the required Conservation Commission application is
s imp 1 e ;
C. the Conservation Commission must hold a public
hearing upon such an application within 21 days
of receipt of defendants' notice of intent; and
D. the Conservation Commission must issue a decision
within 21 days of said hearing.
-3-
Ac most a one and one-half month delay in defendants' activi
ties would occur.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays that judgment issue in its favor,
and that this Honorable Court issue:
1. A Temporary Restraining Order enjoining the
defendants, their agents, attorneys, successors,
assigns , contractors and all others acting in
their stead or with their consent from any re-
moval, filling, dredging or altering activity
upon the premises located at
, for a period of 10 days or until a
preliminary injunction issues;
2. A Preliminary Injunction enjoining the de-
fendants, their agents, attorneys, successors,
assigns, contractors and all others acting
in their stead or with their consent from any
removal, filling, dredging or altering activity
upon the premises located at
until a proper Notice of Intent is filed
with the plaintiff and said activities are ap-
proved under a proper Order of Conditions in
accordance with M.G.L. c. 131, §40;
3. A permanent injunction following a trial upon
the merits enjoining said removal, filling,
dredging and altering by defendants, and order-
ing defendants to restore the premises at
r.\ * as nearly as possible to
its condition prior to the commencement of said
activities ;
4. That costs and expenses, including attorneys'
fees be ordered paid to the plaintiff by the
defendants; and
-A -
Such ocher relief as chis Court may deem appro-
priate .
By ins attorneys ,
I, state chac the facts alleged in the foregoing
complaint are true to the best of my personal knowledge.
NORFOLK, SS. May 21,
Personally appeared before me the above named
and stated that the facts in this Verified Complaint are to
his personal knowledge, on pains and penalties of perjury, true
Notary Public
My Commission Expires:
APPENDIX
L
AFFIDAVIT OF CHAIRMAN
TOWN OF CONSERVATION COMMISSION
RE:
1. My name is . I reside at.
Massachusetts, in Norfolk County. I am the Chairmat
of the Conservation Commission of the Town of * a positic
I have held for more than six years by appointment of the Board
of Selectmen. The Commission is charged with administering and
enforcing the state Wetlands Protection Act, G.L. Chap. 131, §40.
2. The defendants resid-
ing at • are constructing an access
road to a wetland area on a portion of their lot, and filling
this area, all subject to the Wetlands Protection Act. They are
doing this without filing the necessary information and plans
with the Conservation Commission under the statute. Some filling
and grading already has taken place, and large piles of fill have
been placed on the site, stockpiled for further work, all within
the area subject to the jurisdiction of the statute. Photographs
have been taken showing this road and other construction activity.
3. On behalf of the Conservation Commission I visited the
premises on April 23, . . I spoke to-. and
we walked the work area. I explained that the statute requires
an application, known as a Notice of Intent, and then the Con-
servation Commission holds a public hearing, thereafter issuing
an approval, known as an Order of Conditions. I indicated the
-2-
Commission was not prejudging what it would decide in this case,
but that the Wetlands Protection Act clearly requires this re-
view and approval for the "filling" and "altering" of this land.
indicated he was acting on advice of counsel, and
would not stop the work pending the proper applications.
4. On behalf of the Commission I delivered a letter dated
April 23, explaining the basic re-
quirements and procedure of the Wetlands Protection Act. I
supplied a copy of the statute and told them in the letter
where they may obtain the necessary forms for the application.
The letter asked that all work on the wetland area cease forth-
with. The work is continuing.
5. The legal counsel for the
claims that since no approval is necessary under zoning,
no approval is needed from the Conservation Commission. I have
explained in a letter to him dated May 14, that the Wet-
lands Protection Act is completely separate from the Zoning
Act and local zoning bylaws. The Conservation Commission ad-
ministers the Wetlands Protection Act independent of the Board
of Appeals under zoning.
6. The filling and altering is occurring in a vegetated
wetland and also in a flood-prone area under the statute. This
is a bank, flat, marsh, meadow, swamp or freshwater wetland
bordering a body of water, namely a stream, in the language of
the statute. Regulations of the state Department of Environ-
mental Quality Engineering (DEQE) under the statute define
-3-
jurisdiction as reaching out to 100 feet beyond the edge of
the wetland vegetation. This site is easily within such an
area, and the vegetation is predominantly wetland type. In
addition, the land is subject to flooding, in the language of
the statute. The DEQE regulations define jurisdiction as
reaching out to the 100 year flood elevation.
This area is easily within that distance. In fact, the area
of work is below the 100 year flood elevation. Moreover, it
is very commonly flooded, as is shown on photographs which have
been obtained by the Conservation Commission. This filling is not
only within the floodplain of the Charles River, it is only
a few hundred yards from the river, or even less.
7. At a meeting of the Conservation Commission on May
12, my action in notifying the to cease work was
ratified, and it was determined by the Commission to take legal
action to enforce compliance with the Wetlands Protection Act.
-4-
8. I make these statements on. personal knowledge and
under the penalties of perjury.
. CHAIRMAN
Town of
Conservation Commission
COMMONWEALTH OF MASSACHUSETTS
NORFOLK, SS. May 21,
Personally appeared before me the above named
and stated that the facts in this affidavit are to his personal
knowledge, on pains and penalties of perjury.
Notary Rublic
My Commission Expires:
APPENDIX
M
APPLICATION X ADULT
IR COMPLAINT, Tf JUVENILE
X
NUMBER
Trial Court of Massachusetts
District Cdurt Department
iRREST
HEARING
□ SUMMONS
□ WARRANT
within named complainant requests that a complaint Issue against the within
tea defendant, charging said defendant with the oflenseo) listed below.
E OF APPLICATION
2/23/88
OATE OF OFFENSE
1/25/88
PLACE OF OFFENSE
One Main Street
COURT DIVISION
Lawrence District Court
381 Common Street
Lawrence. Ma. 01840
E OF COMPLAINANT
Conservation ConaieaAon, Town of Good
RESS AND ZIP Cr>Q&AftCOMPLAINANT
Town Hall
Good, MA
L, ADORESS ANO ZIP OOOE OF OEFENDANT
■ Not- so-good Developer
Central Street
Good, MA
NO.
OFFENSE
Violation of Vetlande
Protection Act
Violation of . Town
Wetland Bylaw
G.L Ch. a
c.1'31 e
Bylaw
c.5 s.
JRT USE
A hearing upon this complaint application
will be held at the above court address on
DATE OF HEARING
TIME OF HEARING
AT
COURT US
< ONL
CASE PARTICULARS - BE SPECIFIC
NAME OF VICTIM
Owner of property,
person assaulted, ate.
DESCRIPTION OF PROPERTY .
Goods stolen, wttat
destroyed, etc.
VALUE OR PROPERTY
Over or under
am
TYPE OF CONTROLLED
SUBSTANCE OR WEAPON
Marijuana, gun. etc
— tb^
L, f\
ER REMARKS: / if1 11 /
V V
Chairman or Agent
SIGNATURE OF COMPLAINANT
DEFENDANT IDENTIFICATION INFORMATION
— Corrrolffte data below if known.
F BIRTH
PLACE OF BIRTH
SOCIAL SECURITY NUMBER
SEX
RACT <U***GHt 1 WJJGtd
1 1
HAIR
ATION
EMPLOYER/SCHOOL
MOTHER'S NAME (MAIDEN)
FATHER'S NAME
j COURT USE ONLY +
DATE
DisPOsmoN
AUTHORIZED By
NO PROCESS TO ISSUE
C At request of complainant
□ Complainant failed to prosecute
n Insufficient vidence having been presented
PROCESS TO ISSUE TYPE OF PROCESS
□ Sufficient evidence presented □ Warrant
□ Dftfftndant failed to app*ff»" □ Summons r*tum*bl*
fl fVtntintmrl to
MENTS
Appendix N
Sample Site Inspection Letter
[date]
Certified Mail #:
Return Receipt Requested
RE: Wetlands/ [town/city]
Compliance Inspection
Dear [name] :
The [town/city] Conservation Commission has received a
complaint that a violation of the Wetlands Protection Act has
occurred at your property on [location: street address, town/city] .
The activity described consists of: [describe activity: be
specific] .
In accordance with Massachusetts General Laws, Chapter 131,
Section 40, the Commission has scheduled a site inspection of your
property. [Name] will be on the site at approximately [time] , on
[day] , [date] . The purpose of this site inspection is to determine
if the area is significant to the interests of the Act and to
factually determine the existence, nature, and extent of the
alleged violation (s) .
Please be advised that no unpermitted activity may occur on
any portion of the property within 100 feet of any Resource Area
defined by the Wetlands Protection Act (MGL Chapter 131, Section
40) and/or its implementing regulations, 310 CMR 10.00.
We welcome your presence and participation in this matter. If
you have any questions or objections concerning this site
investigation, please contact [name] at [telephone number] during
normal business hours.
Very truly yours,
[Name]
[Title]
[town/city] Conservation Commission
CONTACT/REFERENCE LIST
Massachusetts Agencies
Department of Environmental Protection
Division of Wetlands and Waterways
Wetlands Protection Program
One Winter Street, 8th floor
Boston, MA 02108
(617) 292-5695
DEP/Northeast Regional Office
10 Commerce Way
Woburn, MA 01801
(617) 935-2160
DEP/Southeast Regional Office
2 0 Riverside Drive, Route 105
Lakeville, MA 02347
(508) 946-2800
DEP/Central Regional Office
75 Grove Street
Worcester, MA 01605
(508) 792-7650
DEP/Western Regional Office
State House West, 436 Dwight Street
Springfield, MA 01103
(413) 784-1100
Wetlands Conservancy Program
One Winter Street, 8th floor
Boston, MA 02108
(617) 292-5704
Waterways Regulation Program
One Winter Street, 8th floor
Boston, MA 02108
617/292-5695
Division of Water Pollution Control
One Winter Street, 8th floor
Boston, MA 02108
(617) 292-5673
Massachusetts Agencies (continued)
ME PA Unit
Enforcement Division
100 Cambridge Street
Boston, MA 02202
(617) 727-5830
Dept. of Fisheries, Wildlife, and Environmental Law Enforcement
Division of Law Enforcement
100 Cambridge Street, 19th floor
Boston, MA 02202
(617) 727-1614
Metropolitan District Commission
2 0 Somerset Street
Boston, MA 02108
(617) 727-5215
Environmental Strike Force
One Winter Street
Boston, MA 02108
(617) 556-1000
DEP/Northeast Regional Office
Karen Golden-Smith, Vincent Ferlisi
(617) 935-2160
DEP/Southeast Regional Office
David Johnston
(508) 946-2708
DEP/Central Regional Office
Craig Dunlop
(508) 792-7692
DEP/Western Regional Office
Craig Givens
(413) 784-1100 -
Attorney' s General Office
Environmental Protection Division
One Ashburton Place, Room 1902
Boston, MA 02108
(617) 727-2200
Federal Agencies
U.S. Army Corps of Engineers
424 Trapelo Road
Waltham, MA 02254-9149
(617) 647-8220
U.S. Environmental Protection Agency
Region One
J.F.K. Building
Boston, MA 02203-2211
(617) 565-4868
Non-profits
Massachusetts Association of Conservation Commissions (MACC)
10 Juniper Road
Belmont, MA 02178
(617) 489-3930
MACC Western Outreach Office
2 West Street
Hadley, MA 01035
(413) 584-2724
Massachusetts Audubon Society
208 South Great Road
Lincoln, MA 01773
(617) 259-9500
County District Attorney Offices
Barnstable County
District Attorney
Barnstable Division
3231 Main Street
Barnstable/ MA 02630
508-362-8113
Berkshire County
District Attorney
44 Bank Row
P.O. Box 1969
Pittsfield, MA 01202
413-443-5951
Hampshire County
District Attorney
55 Federal Street
Greenfield, MA 01301
413-774-3186
Middlesex County
District Attorney
Superior Court House
40 Thorndike St.
P.O. Box 38
Cambridge, MA 02141
617-494-4050
Bristol County
District Attorney
888 Purchase Street
P.O. Box 94
New Bedford, MA 02740
617-997-0711
Dukes County
District Attorney
3231 Main Street
Barnstable, MA 02630
508-362-8113
Norfolk County
District Attorney
360 Washington Street
P.O. Box 309
Dedham, MA 02026
617-329-5440
Nantucket County
District Attorney
Superior Court House
Barnstable, MA 02630
508-362-8113
Essex County
District Attorney
70 Washington Street
Fourth Floor
Salem, MA 01970
508-745-6610
Franklin County
District Attorney
One Court Square
Northampton, MA 01060
413-586-9225
Hampden County
District Attorney
Hall of Justice
50 State Street
Springfield, MA 01103
413-781-8100 ext. 3009
Plymouth County
District Attorney
32 Belmont Street
P.O. Box 1665
Brockton, MA 02403
508-584-8120
Suffolk County
District Attorney
New Court House
Pemberton Square
Boston, MA 02108
617-725-8600
Worcester County
District Attorney
Court House
Worcester, MA 01608
617-775-8601
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