Creative Writing under the Wetlands Protection Act – Minor Activities

By Dave Gorden, CWS | CPSS, Senior Environmental Resources Manager,  "That Wetlands Guy"

Did you know that minor activities, as described in the Wetlands Protection Act (WPA) within the buffer zone and outside any WPA regulated areas, are not otherwise subject to regulation under the WPA provided that the work is performed solely within the buffer zone, in a manner which reduces the potential for any adverse impacts to the resource area during construction, and with post-construction measures implemented to stabilize any disturbed areas?

Would we know if our project consisted of a minor activity within the buffer zone?  Would we know if our minor activity reduced the potential for any adverse impacts to the resource area?  Or, would we already be exhausting our time and/or our clients’ money on finessing a creative permitting strategy in front of the local Conservation Commission that is simply not necessary?

In this issue of Creative Writing under the WPA, we’ll briefly review the 17 minor activities within the buffer zone, which may not otherwise be subject to regulation under the WPA.  Please note that during a project’s initial evaluation, the verbiage within each of the minor activity categories described in the WPA regulations may be misinterpreted, may be under-defined, or may be further reviewed by a Conservation Commission with more strict wetlands protection regulations and bylaws.  It may be best to first consult with a wetland scientist or soil scientist with significant permitting experience and a candid prowess in front of Conservation Commissions in advance of proceeding with the presumption of “not otherwise subject to regulation”.  It may still be beneficial to notify Conservation Commissions when activities “not otherwise subject to regulation” are proposed, as this supports good communication between the Applicant and Conservation Commissions, should future work be planned for the proposed project.

The 17 minor activities listed within the WPA include:

a.     Unpaved pedestrian walkways less than 30 inches wide for private use and less than 3 feet wide for public access on conservation property.

b.     Fencing (provided it will not constitute a barrier to wildlife movement), stonewalls, or stacks of cordwood.

c.     Vista pruning, provided the activity is located more than 50 feet from the mean annual high water (MAHW) line within a Riverfront Area (RFA) or from Bordering Vegetated Wetland (BVW), whichever is farther.  Pruning of landscaped areas is not subject to jurisdiction under the WPA. 

d.     Plantings of native species of trees, shrubs, or groundcover, but excluding turf lawns.

e.     The conversion of lawn to uses accessory to residential structures such as decks, sheds, patios, pools, replacement of a basement bulkhead and the installation of a ramp for compliance with accessibility requirements, provided the activity, including material staging and stockpiling is located more than 50 feet from the MAHW line within the RFA, Bank or from BVW, whichever is farther, and erosion and sedimentation controls are implemented during construction.  The conversion of such uses accessory to existing single family houses to lawn is also allowed.   Mowing of lawns is not subject to jurisdiction under the WPA.

f.     The conversion of impervious to vegetated surfaces, provided erosion and sedimentation controls are implemented during construction.

g.     Activities that are temporary in nature, have negligible impacts, and are necessary for planning and design purposes provided that resource areas are not crossed for site access.  These may include the installation of monitoring wells, exploratory borings, sediment sampling and surveying, and percolation tests for septic systems.

h.     Installation of directly embedded utility poles and associated anchors, push braces or grounding mats/rods along existing paved or unpaved roadways and private roadways/driveways, and their existing maintained shoulders, or within existing railroad rights-of-way, provided that all work is conducted within 10 feet of the road or driveway shoulder and is a minimum of 10 feet from the edge of the Bank or BVW and as far away from resource areas as practicable, with no additional tree clearing or substantial grading within the buffer zone, and provided that all vehicles and machinery are located within the roadway surface during work.

i.     Installation of underground utilities (e.g., electric, gas, water) within existing paved or unpaved roadways and private roadways/driveways, provided that all work is conducted within the roadway or driveway and that all trenches are closed at the completion of each workday.

j.     Installation and repair of underground sewer lines within existing paved or unpaved roadways and private roadways/driveways, provided that all work is conducted within the roadway or driveway and that all trenches are closed at the end of completion of each workday.

k.     Installation of new equipment within existing or approved electric or gas facilities when such equipment is contained entirely within the developed/disturbed existing fenced yard.

l.     Installation of access road gates at public or private road entrances to existing utility right-of-way access roads, provided that all vehicles and machinery are located within the roadway surface during work. 
 
m.     Removal of existing utility equipment (poles, anchors, lines) along existing or approved roadways or within existing or approved electric, water or gas facilities, provided that all vehicles and machinery are located within the roadway surface during work.
 
n.     Vegetation cutting for road safety maintenance, limited to the following:

i.     Removal of diseased or damaged trees or branches that pose an immediate and substantial threat to driver safety from falling into the roadway.
ii.     Removal of shrubbery or branches to maintain clear guardrails; such removal shall extend no further than 6 feet from the rear of the guardrail.
iii.     Removal of shrubbery or branches to maintain sight distances at existing intersections; such removal shall be no farther than 5 feet beyond the "sight triangles" established according to practices set forth in American Association of State Highway and Transportation Officials (AASHTO) A Policy on Geometric Design of Highways and Streets, 2011, 6th edition, and such removal is a minimum of 10 feet from a resource area, other than Riverfront Area; and
iv.     Removal of shrubbery, branches, or other vegetation required to maintain the visibility of road signs and signals.

Please note that for the above, MADEP recommends that cuttings of shrubs and branches from mature trees will be performed with suitable horticultural equipment and methods that do not further damage the trees.  To prevent the possible export of invasive plants, MADEP recommends that cut vegetation should be chipped and evenly spread on site, provided the chips are spread outside the buffer zone, and raked to a depth not to exceed 3 inches, clear of all drainage ways.  MADEP also indicates that, alternatively, all cuttings and slash shall be removed from the site and properly disposed.

o.     Installation, repair, replacement or removal of signs, signals, sign and signal posts and associated supports, braces, anchors, and foundations along existing paved roadways and their shoulders, provided that work is conducted as far from resource areas as practicable, and is located a minimum of 10 feet from a resource area, any excess soil is removed from the project location, and any disturbed soils are stabilized as appropriate.

p.     Pavement repair, resurfacing, and reclamation of existing roadways within the right-of-way configuration provided that the roadway and shoulders are not widened, no staging or stockpiling of materials, all disturbed road shoulders are stabilized within 72 hours of completion of the resurfacing or reclamation, and no work on the drainage system is performed, other than adjustments and/or repairs to respective structures within the roadway.

q.     The repair or replacement of an existing and lawfully located driveway servicing not more than two dwelling units provided that all work remains within the existing limits of the driveway and all surfaces are permanently stabilized within 14 days of final grade.

It’s important to note that activities within the buffer zone which do not meet the requirements of the above are subject to preconstruction review through the filing of a Determination of Applicability to clarify jurisdiction or a Notice of Intent under the provisions of the WPA.  For additional information, you may contact us or visit MADEP electronic version of the Wetlands Protection Act regulations (310 CMR 10.00) here:

http://www.mass.gov/eea/docs/dep/service/regulations/310cmr10a.pdf

_{Dave Gorden is a Certified Wetland Scientist and Certified Professional Soil Scientist with a Master of Science degree and 23 years of strategic experience with industry leading firms in the clean energy, environmental, engineering, industrial hygiene, natural resource, sustainability, and transportation fields.  Mr. Gorden has been the recipient of the Environmental Business Council’s (EBC) Committee Leadership Award, has volunteered for 12 years as a Massachusetts Conservation Commission member, was appointed as a Director on the Massachusetts Association of Conservation Commissions (MACC) Board of Directors, and serves as a committee chair for the Association of Massachusetts Wetland Scientists.  Mr. Gorden, perhaps more commonly known by his wetland-themed poetry as “That Wetlands Guy”, may be contacted by email: ThunderchaseLFECS@gmail.com}

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