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DEC Powers: Under the Act, the DEC has full powers to enforce the Massachusetts Wetlands Protection Act, (M.G.L. c. 131) and the Regulations pursuant thereto, (310 CMR 10.00 et. seq.).
- 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
- "Resource areas" include any:
(a) freshwater wetlands,
(b) marshes,
(c) wet meadows,
(d) bogs,
(e) swamps,
(f) vernal pools
(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").
- 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 this section. Permits are required when activities are conducted lands within one hundred (100) feet of resource areas. These areas are presumed to be significant (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 twenty-five (25) feet of a resource area or the location of any building within fifty (50) feet of a resource area.
- Exemptions:
(a) No permit shall be required for:
- 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.
- emergency projects necessary for the protection of the health and safety of the public, provided that:
a. the work is performed or supervised by Mass Development
b. notice, oral or written, has been given to the DEC prior to or within 24 hours of the commencement of work
c. the Director certifies the work as an emergency project
d. the work is performed only for the time and place certified by the Director for limited purposes to abate the emergency, and
e. 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.
(b) Other than stated in this section, the exemptions of the Wetlands Protection Act and Regulations shall not apply.
- Applications for permits
(a) Applications to perform activities affecting resource areas (Notices of Intent) are subject to Level Two review. Decisions or approvals of Notices of Intent are Orders of Conditions and reviewed pursuant to a Level Two review. The issuance of a Certificate of Compliance is a Level One permit.
(b) Written applications shall be submitted to the DEC to perform activities affecting Resource Areas. The application shall include a description of proposed activities and their effects on Resource Areas and order of conditions. No activity shall commence without receiving and complying with a permit issued pursuant to Section 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 and RFD within twenty-one (21) days of the submission of the application. A positive Determination requires an applicant to file a NOI. If the application for a RFD is incomplete, a positive Determination shall be rendered. Any Determination 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 RFD need not be filed for instances where the DEC presumes a permit will be required. These include:
- Any activity within the resource area.
- Any activity within fifty (50) feet of the Bordering Vegetated Wetland (BVW) closest to the resource area.
- Activities that alter more than 1,000 square feet within the outer fifty (50) feet of the BVW.
- Activities within the outer fifty (50) to one hundred (100) feet of the BVW when the Massachusetts Heritage Program inventories or field surveys indicate that habitats of endangered or threatened species are present.
(e) A NOI is required to fill, dredge, or alter any wetlands or within one hundred feet of a wetlands or water body. An NOI shall include:
- Owners' and applicants' names, date of application, scale
- North arrow
- Size of total lot, size of altered or impacted areas, calculations based on accurate measurements and certified by a Professional Engineer
- Assessors map and lot (if available) and a list of abutters, certified if possible
- Stamp and seal of engineer and other professionals preparing the plan
- Existing contours at 2 foot intervals (or as specified by the Director)
- Proposed contours and amount of fill or material removed
- Location and specifications of any retention structures or other improvements
- Existing drainage patterns and proposed alterations
- Boundaries of all waterbodies, wetlands, and buffer areas (buffers as defined in the By-Laws, Article XII, Section C.1)
- 100-year floodplain
- Top and toe of bank
- Identification of indigenous upland and wetland vegetation
- Limit of work ("construction envelope")
- Location of temporary erosion control
- All existing and proposed below-ground alterations and structures, including drainage structures and systems, septic systems, wells, storage tanks, etc.
- Distance of leaching facilities to wetlands, water course, and waterbodies
- Drainage easements and ways
- Any other material specified by the Director
In addition, required forms and fees, an erosion and stabilization plan, details of wetlands replication (if any), and impacts on habitats of endangered or threatened species (if any). A request to extend the time in which the DEC must commence the public hearing (until the next monthly Public Hearing) and a request to extend the time in which the DEC must render a decision (to accommodate the required thirty-day comment period) shall be filed with the application. The applicant shall also notify by certified mail all abutters within one hundred (100) feet of the lot upon which the work is to be performed.
(f) Public hearings shall be advertised, noticed, and held as required by the By-Laws and 974 CMR 1.04. The applicant shall stake or flag of 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 twenty-one days of such hearing impose such conditions as will contribute to the protection of the resources.
(g) 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 352# has been posted on site in a location visible from the nearest public way.
(h) The DEC may require that the performance and observance of the conditions imposed be secured wholly or in part by either:
- A proper bond or deposit of money or other instrument acceptable to the Director as specified in 974 CMR 1.13.
- 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.
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