WETLANDS PROTECTION ACT
Overview: The Massachusetts Wetlands Protection Act (WPA), M.G.L. Chapter 131, section 40, implemented by 310 CMR 10.00, sets forth a public review and decision making process by which certain designated environmentally sensitive areas are to be regulated by local conservation commissions and the Massachusetts Department of Environmental Protection (DEP) in order to ensure maximum environmental protection for environmentally sensitive areas. Since in certain circumstances the WPA will significantly restrict a property owner’s ability to develop, expand or improve their property, it is important that Realtors are aware of the basic requirements of the WPA. While it is not expected nor anticipated that Realtors become hands-on experts in WPA administration, a basic understanding of the basics of the WPA will prepare Realtors and their clients for the complex and confusing issues which regularly arise.
Relevant Law: M.G.L. Chapter 131, § 40
Massachusetts Wetlands Protection Act Regulations 310 CMR 10.00
Important Issues: The WPA statute and regulation proscribes a process and timetable which a project applicant and the local conservation commission must adhere to.
Once determined that the WPA applies to an applicant’s project, the applicant must submit a Notice of Intent (NOI) to the local conservation commission. Filing fees for the NOI vary depending on the project type. The NOI will be delivered to all abutters within 100 feet of the property line of the proposed project. The NOI must include all applications for permits, variances, and approvals which are necessary to describe the effect of the proposed project on the environment. Within 21 days of receipt of the NOI, the local conservation commission shall: (1) make a written determination as to whether the WPA is applicable to the proposed project and (2) hold a public hearing, notice of which shall be published 5 days in advance and given to the project applicant, the local board of health, and the planning commission. Within 21 days of the public hearing, the conservation commission shall issue an Order of Conditions stating all conditions necessary to ensure the proposed project’s compliance with the WPA.
Any person(s) may request the DEP to issue a Superseding Determination of Applicability or to issue of Superseding Order of Conditions, whichever is appropriate, if the conservation commission has (1) issued a Determination of Applicability; (2) issued an Order of Conditions; or (3) failed to hold a public hearing or issue an Order, Notification, or Determination within the designated time period. Person(s) who may request DEP intervention include the applicant; the project property owner, if not the applicant; any persons aggrieved by the Order; any owner of land abutting the land on which the work is to be done; any ten residents of the city or town where the land is located; and DEP. The WPA contains numerous specific requirements relative to filing appeals. Consult 310 CMR 10.00 and expert counsel to ensure compliance.
The WPA statute and regulation are extremely detailed and technical. They contain numerous exemptions and nuances. Consult with proper authorities in order to ensure complete understanding of the WPA on any specific proposed project.
Frequently Asked Questions:
Q: What areas are subject to regulation under the Wetland Protection Act (WPA)?
A: The following areas are subject to protection under the WPA: any (a) bank, (b) freshwater wetland, (c) coastal wetland, (d) beach, (e) dune, (f) flat, (g) marsh, or (h) swamp that border on the ocean, any estuary, creek, river, stream, pond, or lake. Also included is land under any of the above listed water bodies, land subject to tidal action, land subject to coastal storm flowage, and land subject to flooding. In certain circumstances, this the protected area may include an addition radius of 100 feet from the protected area (the so-called "Buffer Zone").
Q: What activities are subject to regulation under the WPA?
A: Any activity proposed or undertaken within an area listed above which will remove, fill, dredge, or alter that are is subject to regulation under the WPA and requires the filing of a Notice of Intent. In addition, activities located within 100 feet of the above listed protected areas which, in the judgment of the local conservation commission, will alter the protected area are subject to regulation under the WPA.
Q: What standard is used by a local conservation commission in reviewing a proposed project’s impact on a WPA protected area?
A: In reviewing a Notice of Intent, the local conservation commission will determine whether the proposed project will have a significant adverse impact on one or more of the interests identified in the WPA. The 8 interests identified in the WPA are: (1) protection of public and private water supply; (2) protection of ground water supply; (3) flood control; (4) storm damage protection; (5) prevention of pollution; (6) protection of land containing shellfish; (7) protection of fisheries; and (8) protection of wildlife habitat. If determined that the proposed project will effect on or more of these values, the local conservation commission will issue an Order of Conditions specifying the necessary changes to the project to minimize such adverse impacts.
Q: How does a current or potential property owner determine if their property is subject to regulation under the WPA?
A: To be sure whether a specific project location is subject to the WPA, any person may submit to the local conservation commission a Request for a Determination of Applicability. Within 21 days of the request, the local conservation commission must issue a formal Determination of Applicability. This determination will indicate if and where, if at all, the WPA applies. The Determination of Applicability process involves public hearings, and an optional appeal process. See 310 CMR 10.05(3) for the specific requirements relative to a Request for a Determination of Applicability.
Q: Can a local conservation commission or the DEP under the WPA prevent a property owner from using their property?
A: While it is possible that an individual may be prohibited from undertaking certain projects as a result of the WPA, in certain situations, governmental regulation, such as the WPA, may result in an unconstitutional taking, therefore requiring the government to either compensate the property owner or to abate enforcement of the regulation. However, the WPA contains a variance process that exempts a project from the WPA if enforcement would result in undue hardship or an unconstitutional taking. (See 310 CMR 10.36 and 10.58). Since 1978 the DEP has approved 29 of the 30 WPA variance requests submitted.
Last Update 12/97
For more information please contact the following:
Massachusetts Association of REALTORS ® at (800) 370-LEGAL
Massachusetts Department of Environmental Protection,
Division of Wetlands and Waterways at (617) 292 - 5500.
This publication is provided as a service to members of the Massachusetts Association of REALTORS ® and is intended for educational use only. Opinion or suggestions in this publication do not necessarily represent the official policies or positions of the Massachusetts Association of REALTORS ® . The Massachusetts Association of REALTORS ® does not accept responsibility for any misinterpretation or misapplication by the reader of the information contained in this article. The publishing of this material does not constitute the practice of law nor does it attempt to provide legal advice concerning any specific factual situation. FOR ADVICE ON SPECIFIC LEGAL PROBLEMS CONSULT LEGAL COUNSEL.