A Guide to the Massachusetts Wetlands Protection Act Requirements, Process, and Compliance

The Massachusetts Wetlands Protection Act (MWPA) is a critical piece of environmental legislation that safeguards the state's invaluable wetland resources. This comprehensive guide delves into the intricacies of the MWPA, providing a clear understanding of its applicability, regulatory standards, and compliance obligations. By exploring the Act's key provisions, recent developments, and potential enforcement actions, readers will gain the knowledge necessary to navigate the complex landscape of wetland protection in Massachusetts. The guide also highlights the importance of proactive compliance and early engagement with relevant agencies to ensure successful project outcomes while minimizing environmental impacts. With a focus on practical insights and actionable information, this resource serves as an essential tool for effectively managing projects in accordance with the MWPA and preserving the state's vital wetland ecosystems for future generations.

GENERAL INFORMATION

Key Details of the Massachusetts Wetlands Protection Act

Issuing Agency: Massachusetts Department of Environmental Protection (MassDEP)

Year Established: 1972

Last Amended: 2014

Statutory Authority: Massachusetts Wetlands Protection Act, Massachusetts General Laws Chapter 131, Section 401

Primary Legal Reference: Code of Massachusetts Regulations, 310 CMR 10.002

Overview of the Massachusetts Wetlands Protection Act

The Massachusetts Wetlands Protection Act (WPA) is a state law that operates within the broader framework of Massachusetts environmental regulations. It complements federal wetlands protection laws, such as Section 404 of the Clean Water Act, by providing additional protections for wetlands and related water resources at the state level.

The primary goal of the WPA is to protect Massachusetts' wetlands, watercourses, and adjoining land areas from damage caused by development, pollution, and other human activities. The law is administered and enforced by the Massachusetts Department of Environmental Protection (MassDEP) in collaboration with local conservation commissions.

Enacted in 1972, the WPA has undergone several amendments over the years to strengthen its protections and clarify its requirements. The most recent significant amendments occurred in 2014.

The WPA achieves its goals by requiring property owners and developers to obtain permits before undertaking any work that may alter or impact wetlands or other protected resources. The permit review process involves an assessment of the proposed work's potential environmental impacts and the implementation of measures to avoid, minimize, or mitigate those impacts.

The law applies to all wetlands, watercourses, and adjoining land areas throughout Massachusetts, with some exemptions for certain agricultural and forestry activities.

What does the Massachusetts Wetlands Protection Act protect?

The Massachusetts Wetlands Protection Act protects a variety of wetlands and related water resources from damage, destruction, and pollution caused by human activities. Specifically, the law protects:

  1. Bordering Vegetated Wetlands (BVWs): Freshwater wetlands that border on creeks, rivers, streams, ponds, and lakes3.
  2. Salt Marshes: Coastal wetlands that are regularly flooded by salt water4.
  3. Coastal Banks: The seaward face or side of any elevated landform, other than a coastal dune, that lies at the landward edge of a coastal beach, land subject to tidal action, or other wetland5.
  4. Dunes: Coastal dunes and banks that are significant for storm damage prevention and flood control6.
  5. Land Under Water Bodies and Waterways: The land beneath any creek, river, stream, pond, or lake7.
  6. Riverfront Areas: The land between a river's mean annual high-water line and a parallel line measured horizontally 200 feet away8.
  7. Vernal Pools: Temporary bodies of freshwater that provide essential breeding habitat for certain amphibian and invertebrate species9.

The WPA protects these resources by requiring project proponents to obtain permits before undertaking any work that may alter or impact them. The permit review process ensures that the proposed table of contents

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Massachusetts Wetlands Protection Act (MWPA) is a comprehensive state law designed to protect wetlands, water resources, and adjoining land areas in the Commonwealth of Massachusetts. The Act regulates activities that may have a significant impact on wetland areas, such as removing, filling, dredging, or altering these sensitive ecosystems.10

The MWPA applies to various industries and entities involved in construction, development, and land alteration projects near wetlands. This includes, but is not limited to:

  • Real estate developers
  • Construction companies
  • Landscaping businesses
  • Agricultural operations
  • Municipalities and government agencies
  • Homeowners and private landowners

Under the MWPA, the following activities are prohibited without a permit:

  1. Removing, filling, dredging, or altering any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow, or swamp bordering on any ocean, estuary, creek, river, stream, pond, or lake.11
  2. Disturbing or altering the existing topography, vegetation, or hydrology of a wetland resource area.
  3. Constructing, reconstructing, or expanding any structure or infrastructure within a wetland resource area or buffer zone.

These prohibitions are in place to prevent the degradation of wetlands, which provide crucial ecosystem services such as flood control, water purification, groundwater recharge, and habitat for diverse plant and animal species.12 By regulating activities that may harm wetlands, the MWPA seeks to strike a balance between environmental protection and responsible development.

Structure and Key Provisions

The Massachusetts Wetlands Protection Act is codified in Massachusetts General Laws Chapter 131, Section 40.13 The Act is further elaborated upon in the Wetlands Protection Act Regulations (310 CMR 10.00), which provide detailed rules and procedures for implementing the law.14

Key Provisions

  1. Jurisdiction: The MWPA covers any wetland, floodplain, riverfront area, or other water resource area in the Commonwealth of Massachusetts.15

  2. Definitions (310 CMR 10.04): This section defines key terms used throughout the regulations, such as "alter," "bank," "bordering vegetated wetland," and "riverfront area."16

  3. Performance Standards (310 CMR 10.51-10.60): These sections establish criteria for evaluating proposed activities in wetland resource areas and ensuring that they will not have significant adverse impacts on the environment.

  4. Permitting Requirements (310 CMR 10.05): This section outlines the procedures for filing a Notice of Intent (NOI) to perform work in a wetland resource area, as well as the process for obtaining a permit from the local Conservation Commission or the Massachusetts Department of Environmental Protection (MassDEP).17

  5. Enforcement (310 CMR 10.08): This section describes the enforcement actions that may be taken by Conservation Commissions or MassDEP for violations of the MWPA, including issuing enforcement orders, administrative penalties, and civil or criminal court actions.18

It is essential for anyone planning to undertake a project near wetlands in Massachusetts to carefully review the full text of the Wetlands Protection Act and its associated regulations. Consulting with the local Conservation Commission and MassDEP early in the project planning process can help ensure compliance with the law and avoid potential enforcement actions.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Massachusetts Wetlands Protection Act establishes various standards and limitations to protect wetlands and other water resources in the state. These include performance standards for work in or near wetlands, such as maintaining a certain buffer zone around wetlands, minimizing alterations to wetland hydrology, and preserving wildlife habitat.19 The Act also sets forth a "no net loss" policy for wetlands, requiring that any unavoidable impacts to wetlands be mitigated through restoration, enhancement, or creation of wetlands elsewhere.20

These standards are implemented through a permitting process overseen by local Conservation Commissions and the Massachusetts Department of Environmental Protection (MassDEP). Developers and consultants must demonstrate compliance with the applicable standards in their permit applications and during project implementation. Enforcement of these standards is carried out through site inspections, administrative orders, and legal action by the Conservation Commissions and MassDEP.21

Monitoring, Reporting & Recordkeeping Obligations

Under the Massachusetts Wetlands Protection Act, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements. These obligations are typically specified in the permits issued by the Conservation Commissions or MassDEP for work in or near wetlands. Examples of such requirements may include:22

  • Conducting regular site inspections to ensure compliance with permit conditions
  • Submitting periodic reports on the status of the project and any impacts to wetlands
  • Maintaining records of permit applications, plans, and other relevant documents

Developers and consultants should work closely with the Conservation Commissions and MassDEP to understand and fulfill the specific monitoring, reporting, and recordkeeping obligations that apply to their projects. Failure to comply with these requirements can result in enforcement actions and penalties.23

Enforcement Actions & Penalties

The Massachusetts Wetlands Protection Act provides for various enforcement actions and penalties for violations of the Act or the conditions of permits issued under the Act. These may include:24

  • Notices of Violation: Issued by Conservation Commissions or MassDEP to inform a party of a violation and require corrective action
  • Administrative Orders: Issued by Conservation Commissions or MassDEP to require specific actions to address violations or restore damaged wetlands
  • Civil and Criminal Penalties: Fines and other penalties that may be imposed by courts for violations of the Act or permit conditions

To avoid enforcement actions and penalties, it is essential for developers and consultants to proactively comply with the requirements of the Massachusetts Wetlands Protection Act and engage early and often with the Conservation Commissions and MassDEP. Readers should consult the full text of the Act and work closely with these agencies to understand the specific enforcement provisions and penalty structures that may apply to their projects.25

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

In recent years, the Massachusetts Wetlands Protection Act has undergone several significant developments that have shaped the current regulatory landscape. One notable change was the amendment to the Act in 2014, which expanded the jurisdiction of the Massachusetts Department of Environmental Protection (MassDEP) to include the regulation of stormwater discharge in wetland areas 26. This amendment has had a substantial impact on developers and environmental consultants, who must now ensure that their projects comply with the enhanced stormwater management requirements.

Another important development was the Massachusetts Supreme Judicial Court's decision in the case of Pepin v. Division of Fisheries and Wildlife in 2015 27. This ruling clarified the scope of the Act's "limited project" exemption, which allows certain activities to proceed without a full wetland permit. The court's decision emphasized the need for a strict interpretation of the exemption criteria, making it more challenging for projects to qualify for this provision.

Looking ahead, there are several proposed regulatory changes and policy shifts that stakeholders should be aware of. The MassDEP is currently considering amendments to the Wetlands Protection Act regulations that would streamline the permitting process for certain low-impact projects 28. If adopted, these changes could provide some relief for developers and environmental consultants working on smaller-scale projects.

To stay informed about these and other developments related to the Massachusetts Wetlands Protection Act, stakeholders can:

  1. Regular‍ly visit the MassDEP's wetlands protection website (https://www.mass.gov/guides/wetlands-protection) for updates and announcements.
  2. Subscribe to the MassDEP's email newsletter, which provides news and information about environmental regulations and policies.
  3. Engage with industry associations, such as the Massachusetts Association of Conservation Commissions (MACC), which offers training, resources, and networking opportunities for professionals involved in wetland protection and management.

By staying informed and actively participating in the regulatory process, developers, environmental consultants, and other stakeholders can better navigate the evolving landscape of the Massachusetts Wetlands Protection Act and ensure compliance with its requirements.

Additional Resources

MassDEP Wetlands Protection Program Website: The official website of the Massachusetts Department of Environmental Protection's Wetlands Protection Program, providing access to regulations, guidance documents, forms, and other essential resources. 29

Wetlands Protection Act Regulations (310 CMR 10.00): The official regulations implementing the Massachusetts Wetlands Protection Act, including detailed requirements for permitting, resource area delineation, and performance standards. 30

REFERENCES

  1. Mass. Gen. Laws ch. 131, § 40 ↩

  2. 310 CMR 10.00 ↩

  3. 310 CMR 10.55(2) ↩

  4. 310 CMR 10.32(2) ↩

  5. 310 CMR 10.30(2) ↩

  6. 310 CMR 10.28(2) ↩

  7. 310 CMR 10.56(2) ↩

  8. 310 CMR 10.58(2) ↩

  9. 310 CMR 10.04 ↩

  10. Mass. Gen. Laws ch. 131, § 40. ↩

  11. 310 CMR 10.02(1). ↩

  12. "Wetlands Protection." Mass.gov. https://www.mass.gov/guides/wetlands-protection. ↩

  13. Mass. Gen. Laws ch. 131, § 40. ↩

  14. 310 CMR 10.00. ↩

  15. 310 CMR 10.02(1). ↩

  16. 310 CMR 10.04. ↩

  17. 310 CMR 10.05. ↩

  18. 310 CMR 10.08. ↩

  19. Mass. Gen. Laws ch. 131, § 40; 310 CMR 10.00 et seq. ↩

  20. Mass. Gen. Laws ch. 131, § 40; 310 CMR 10.55(4)(b) ↩

  21. Mass. Gen. Laws ch. 131, § 40; 310 CMR 10.08 ↩

  22. 310 CMR 10.00 et seq. ↩

  23. Mass. Gen. Laws ch. 100, § 40; 310 CMR 10.08 ↩

  24. Mass. Gen. Laws ch. 131, § 40; 310 CMR 10.08 ↩

  25. Mass. Gen. Laws ch. 131, § 40; 310 CMR 10.00 et seq. ↩

  26. MassDEP. (2014). Massachusetts Wetlands Protection Act Amended to Include Stormwater Discharge Regulation https://www.mass.gov/doc/massachusetts-wetlands-protection-act-amended-to-include-stormwater-discharge-regulation ↩

  27. Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210 (2015). ↩

  28. MassDEP. (2021). Proposed Amendments to Wetlands Protection Act Regulations https://www.mass.gov/doc/proposed-amendments-to-wetlands-protection-act-regulations ↩

  29. MassDEP. (n.d.). Wetlands Protection https://www.mass.gov/guides/wetlands-protection ↩

  30. 310 CMR 10.00: Wetlands Protection Act Regulations. ↩

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the Massachusetts Wetlands Protection Act. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.