(1)
DEC
Powers. Under St. 1993, c. 498, § 11 the DEC has full powers
to enforce M.G.L. c. 131, § 40A: Wetlands Protection Act
and
310 CMR
10.00: Wetlands Protection.
(2)
Purpose. To
protect the wetlands and water resources in Devens and adjoining land areas by
controlling activities likely to have a significant or cumulative effect on
wetland functional values, including but not limited to:
(a) public and private water supply
protection;
(b) groundwater supply
protection;
(c) flood
control;
(d) storm damage
prevention;
(e) pollution
prevention;
(f) fisheries
protection;
(g) wildlife habitat
protection;
(h) erosion prevention
and sedimentation control.
(3)
Resource Areas
include any:
(a) freshwater
wetlands;
(b) marshes;
(c) wet meadows;
(d) bogs;
(e) swamps;
(f) vernal pool habitat;
(g) banks;
(h) reservoirs;
(i) lakes;
(j) ponds of any size;
(k) rivers, streams, and creeks;
(l) lands under water bodies; and
(m) lands subject to flooding or inundation
by ground or surface water (collectively protected as "Resource
Areas").
(4)
When Permits are Required. No person shall remove,
fill, dredge, build upon, degrade, discharge into, or otherwise alter Resource
Areas except as permitted by the DEC or as exempted by 974 CMR 4.06. Permits
are required when activities are conducted within Resource Areas or within 100
feet of Resource Areas. Lands within 100 feet of Resource Areas are presumed
important (By-laws, Article XII Section C.1) to the protection of Resources
Areas because activities undertaken in close proximity to resource areas have a
high likelihood of adverse impact on the Resource.
The By-laws do not permit any alteration of natural vegetation
or substrate within 25 feet of a Resource Area or the location of any building
within 50 feet of a Resource Area except that the construction of recreational
facilities (bikeways, trails, docks, etc.), roads, streets,
rail sidings, aboveground or underground public utilities and infrastructure,
detention basins or drainage structures, measures undertaken for the
remediation of contaminated soils or groundwater, or removal of solid waste is
allowed within these setbacks. Any exceptions shall implement all controls
necessary to minimize adverse impacts to Resource Areas.
(5)
When Permits are not
Required.
(a) Maintaining,
repairing, or replacing an existing and lawfully located structure or facility
used in the service of the public to provide electric, gas, water, telephone,
or telecommunication services, provided that written notice has been given to
the DEC prior to the commencement of work and there are adequate (as determined
by the DEC) measures to protect the Resource Areas during the maintenance,
repair, or replacement activities. This exemption does not apply to substantial
changes to or enlargement of such structures or facilities. An Applicant
claiming that work to remove, fill, dredge or alter a Resource Area does not
require the filing of a Notice of Intent has the burden of establishing that
the work is not subject to Regulation under M.G.L. c. 131, § 40. In such
cases, the Applicant may be required to file a Request for Determination of
Applicability with the DEC.
(b)
Emergency projects necessary for the protection of the health and safety of the
public, as per
310 CMR
10.06(1): provided that:
1. The work is performed or supervised by
MassDevelopment.
2. Notice, oral or
written, has been given to the DEC prior to or within 24 hours of the
commencement of work. Such notice shall specify why the project is necessary
for the protection of public health and safety.
3. The Director certifies the work as an
emergency project. The certification shall include a description of the work
which is to be allowed.
4. The work
is performed only for the time and place certified by the Director for limited
purposes to abate the emergency; and
5. A permit application shall be filed with
the DEC within 21 days of commencement of an emergency unless the project has
been completed by this time.
(6)
Applications for
Permits.
(a) Applications to
perform activities affecting Resource Areas (Notices of Intent) and decisions
to allow such activities (Orders of Conditions) are subject to Level Two
review. The issuance of a Certificate of Compliance is a Level One
permit.
(b) Applications shall
include a description of proposed activities and their effects on Resource
Areas. No activity shall commence without receiving and complying with a permit
issued pursuant to 974 CMR 4.06.
(c) Applicants seeking a Request for
Determination (RFD) as to whether a Notice of Intent (NOI) is required shall
submit their application simultaneously to the DEC and the DEP Central Regional
Office. The Director shall review the RFD and issue a Determination within 21
days of the submission of the application. A positive Determination requires an
Applicant to file an NOI. If the application for an RFD is incomplete, a
positive Determination shall be rendered. Any Determination by the DEC Director
is valid only upon ratification by the DEC at a public meeting. The DEC may
ratify, modify or disapprove the Director's decision. A negative Determination
shall be valid for three years, provided the project is not changed within that
period.
(d) A NOI is required to
fill, dredge, or alter any wetlands or land within 100 feet of a wetlands or
water body. An NOI shall include:
1. Owners'
and Applicants' names, date of application, scale;
2. North arrow;
3. Size of total lot, size of altered or
impacted areas, calculations based on accurate measurements and certified by a
Professional Engineer;
4. Assessors
map and lot (if available) and a list of abutters, certified if
possible;
5. Stamp and seal of
engineer and other professionals preparing the plan;
6. Existing contours at two foot intervals
(or as specified by the Director);
7. Proposed contours and amount of fill or
material removed;
8. Location and
specifications of any retention structures or other improvements;
9. Existing drainage patterns and proposed
alterations;
10. Boundaries of all
waterbodies, wetlands, and buffer areas (buffers as defined in the By-laws,
Article XII, Section C.1);
11.100-year floodplain;
12. Top and toe of bank;
13. Identification of indigenous upland and
wetland vegetation;
14. Limit of
work ("construction envelope");
15.
Erosion and sedimentation plan showing the details and location of all
temporary erosion control;
16. All
existing and proposed below-ground alterations and structures, including
drainage structures and systems, septic systems, wells, storage tanks,
etc.;
17. Distance
of leaching facilities to wetlands, water course, and waterbodies;
18. Drainage easements and ways;
19. Wetland Replication plans (if replication
is required) including, but not be limited to, design, construction and
monitoring consistent with the Massachusetts DEP Wetland Replication
Guidelines, March 2002;
20. Required forms and fees;
21. Details on impacts on habitats of
state-listed species (if any);
22.
A written request to extend the time in which the DEC must render a decision
(to accommodate the DEC required 30-day town comment period) shall be filed
with the application;
23. A
certified list of all abutters and property owners within 300 feet of the
boundaries of the site upon which the work is to be performed;
24. Any other material specified by the
Director.
(e) Public
hearings will be advertised, noticed, and held as required by the By-laws and
974 CMR 1.04:
Level One Review. Applicant shall stake or flag the edge of
wetlands on the project site at least five days prior to the hearing. The DEC,
after public hearing, shall determine whether the impacts on the area on which
the proposed work is to be done are significant to public or private water
supply, to the groundwater supply, to flood control, to storm damage
prevention, to prevention of pollution, to the protection of wildlife habitat,
to erosion and sedimentation control or to the protection of fisheries, and
shall by written order within 21 days of such hearing impose such conditions as
will contribute to the protection of the Resources.
(f) All work shall be done in accordance with
the orders issued by the DEC. No work may commence until the final order and
plans have been recorded in the Registry of Deeds and proof of such recordation
has been submitted to the DEC and a sign identifying the project with the MADEP
file number has been posted on site in a location visible from the nearest
public way.
(g) The DEC may require
that the performance and observance of the conditions imposed be secured wholly
or in part by either:
1. A proper bond or
deposit of money or other instrument acceptable to the Director as specified in
974 CMR
1.13: Performance
Guarantees; or
2. A
conservation restriction, easement, or other covenant enforceable in a court of
law, executed and duly recorded by the owner of record, running with the land
to the benefit of the DEC or a non-profit organization, the principal purpose
of which is the conservation of open space.