II. Wetland Buffers/Expansion of Conservation Commission Jurisdiction Beyond 100'

Commentary: The Wetlands Protection Act does not provide direct protection for buffer areas surrounding wetlands that provide important functions, including mitigating stormwater impacts, sedimentation and erosion control, removing nutrients, and recharging groundwater. Research has documented the increase in nitrogen and phosphorus loading to wetlands as adjacent watershed areas are cleared of vegetation. Buffer areas play an important role in minimizing impacts of adjacent land uses and separating them from wetlands. Buffer areas also have important wildlife habitat value.

In order to provide protection for wetland buffer areas, the “Jurisdiction” language contained in Section 01.0 above, includes “lands abutting… resource areas.” In addition, the following bylaw language is recommended. The case of Fafard v. Conservation Commission of Reading 41 Mass. App. Ct. 565 makes it clear that if a Commission wants to protect buffer areas the bylaw should provide authorization for it to do so. Commissions may expand their jurisdiction beyond 100' where appropriate by inserting language within the bylaw establishing such authorization. For example, Commissions may want to expand their jurisdiction to protect land along rivers to mirror or expand upon the protection offered to the 200' Riverfront Area in recent amendments to the Wetlands Protection Act and regulations. Other areas that a town might consider for expanded jurisdiction include, but are not limited to extremely sensitive areas such as: land within 350' of vernal pools, land within 300' of coastal plain ponds, land within 300' of wetlands designated as estimated habitat for rare species by the Massachusetts Natural Heritage and Endangered Species Program and lands within Areas of Critical Environmental Concern (ACECs).

A. Bylaw language

Lands within 200 feet1 of rivers, ponds and lakes, and lands within 100 feet of other resource areas, are presumed important to the protection of these resources because activities undertaken in close proximity to resource areas have a high likelihood of adverse impact to these resources, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities. These adverse impacts from construction and use can include, without limitation, erosion, siltation, loss of groundwater recharge, poor water quality, and loss of wildlife habitat. The Commission therefore may require that the applicant maintain a strip of continuous, undisturbed vegetative cover within this area, unless the applicant demonstrates to the satisfaction of the Commission that the area or part of it may be disturbed without harm to the values protected by the bylaw.

In the review of areas within 200 feet of rivers and streams, and within 100 feet of other resource areas, no permit issued hereunder shall permit any activities unless the applicant, in addition to meeting the otherwise applicable requirements of this bylaw, has proved by a preponderance of the evidence that 1) there is no technically demonstrated feasible alternative to the project with less adverse effects and that 2) such activities, including proposed mitigation measures, will have no significant adverse impact on the areas or values protected by this bylaw. The closer an activity is proposed to a resource area, the more scrutiny will be given to the potential impacts of a proposed project.

Any activity proposed or undertaken outside of the resource areas protected by this bylaw, as specified above, shall not be subject to jurisdiction of the Conservation Commission unless in the judgment of the Conservation Commission, said activity will result or has resulted in the alteration of a resource area protected by this Bylaw. “

B. Regulation Language

B.1 Presumption: Where a proposed activity involves work within 200 feet of [resource area]; the Commission shall presume that such area is significant to the interests specified in the Bylaw. This presumption is rebuttable upon clear and convincing evidence that the buffer area does not play a role in the protection of said interests (wetland values) protected by the Bylaw.

B.2 Performance Standards: No activity which will result in the alteration of land within 200 feet of [resource area] shall be permitted by the Conservation Commission with the following exceptions:

a) planting of native vegetation or habitat management techniques designed to enhance the wetland values protected by the Bylaw;

b) construction and maintenance of unpaved pedestrian access paths not more than 4' in width;

c ) maintenance of existing structures, utilities, stormwater management structures and paved areas;

d) construction and maintenance of water dependent structures and uses;

e) vista pruning and removal of dead and diseased vegetation consistent with Conservation Commission standards;

f) construction of new utility lines where the proposed route is the best environmental alternative;

g) septic system maintenance and, if a system has failed, repair/replacement meeting state/local standards where the maximum feasible buffer is maintained;

h) construction of accessory structures/uses associated with lawfully existing single family houses where the Conservation Commission finds that alternatives outside the buffer area are not available; the size and impacts of the proposed structure/use have been minimized; and the structure/use is located as far from the resource as possible;

i) Where a buffer area is already altered such that the required buffer cannot be provided without removal of structures and/or pavement, this requirement may be modified by the Conservation Commission provided that it finds that the proposed alteration will not increase adverse impacts on that specific portion of the buffer area or associated wetland and that there is no technically demonstrated feasible construction alternative;

j) Where a lot is located entirely within buffer area, the Commission may permit activities within the buffer area when the applicant has demonstrated that the proposed work has been designed to minimize impacts to the buffer area. As mitigation, the Commission may require the applicant to plant or maintain a naturally vegetated buffer of the maximum feasible width given the size, topography, and configuration of the lot.