Understanding the Regulatory Process
|Previous||1. Understanding The Regulatory Process
2. Types of Wetlands
3. What Does “Protected” Mean?
4. Impact of Proposed Work
5. Performance Standards
Wetlands are valuable resources, and among the most useful tools we have for protecting those resources are the Massachusetts Wetlands Protection Act and its partner the Massachusetts Wetlands Protection Act Regulations, which includes the rules for implementing and administering the act. The act and the regulations describe the resources that are protected under the act, and the specific protections that are provided. The local agency responsible for enforcing this act and its accompanying regulations is the town’s or city’s Conservation Commission. At the state level, the Massachusetts Department of Environmental Protection (DEP) has this responsibility.
The regulatory process often begins when new work is proposed and a wetland is nearby. The work may be a simple backyard project or major industrial construction. The first question is often, “Does the Wetlands Protection Act restrict or prohibit this proposed work?” If the answer is “yes,” the project must be reviewed by the local Conservation Commission. But how do you know whether the Wetlands Protection Act applies?
When in doubt, ask the Conservation Commission to make a determination. The official procedure for making this request is to file a Request for Determination of Applicability (RDA). Anyone (e.g., property owner, contractor, neighbor, concerned citizen) may file an RDA.
Upon receiving an RDA, a Conservation Commission must schedule a public meeting within 21 days. Sometimes no special scheduling is needed, because some Conservation Commissions hold regularly scheduled public meetings. This public meeting must be advertised in a local newspaper (at the expense of the person making the request) at least 5 days prior to the meeting. The commission should make a site visit before the meeting to prepare for their evaluation of the proposed work.
At the public meeting, the commission will review the facts related to the proposed work and make a determination. The public must be given an opportunity to provide input at these meetings.
The commission’s determination is usually made and announced at the same meeting, although the commission does have 21 days to make their determination and will sometimes continue discussion to a later public meeting. The commission’s determination is reported to the DEP on DEP’s Determination of Applicability form.
There are two possible determinations the commission can make. The commission can make a negative determination, saying that the project is not subject to regulation under the Wetlands Protection Act. If the commission makes this determination, the work may begin without a permit from the Conservation Commission after a 10 day appeal period.
A positive determination indicates that the proposed work is subject to regulation under the Wetlands Protection Act and requires a permit from the Conservation Commission to continue. The applicant must now file a Notice of Intent (NOI) with both the Conservation Commission and the Massachusetts Department of Environmental Protection (DEP) indicating an intent to perform work in or near a wetland and requesting a permit for that work. The NOI must contain enough supporting material to allow the commission and members of the public to evaluate possible impacts of the work on the wetland. Sometimes an NOI is filed without ever bothering with the RDA. This is usually done when the applicant knows that the work is regulated under the Wetlands Protection Act.
Upon receiving an NOI, the Conservation Commission must schedule a public hearing within 21 days. The hearing must be advertised in a local newspaper (at the expense of the applicant), and all abutters of the property on which the work is being done must be notified in writing by the applicant. Before the public hearing, the commission members should review the NOI and its supporting material in preparation for their evaluation of the project.
At the public hearing, the Conservation Commission will review proof of abutter notification provided by the applicant, question the applicant, and review the NOI and its supporting documents to evaluate the project’s likely impact on the nearby wetland. The public must be given an opportunity to make comments and ask questions at this hearing. Based on this discussion and review, the commission may determine that it needs more information before it can reach a decision. They may then require the applicant to provide further information and continue the hearing to a later date. The hearing may not be continued beyond 21 days without the permission of the applicant, however if the applicant refuses the commission’s request for more information, the commission may deny the permit.
If the commission determines that it does have enough information, it has 21 days to issue or deny a permit for the work. It may decide that the proposed work does not meet the requirements of the Wetlands Protection Act and deny the permit. This decision may be appealed by the applicant.
The commission may also decide that the proposed work will not endanger the nearby wetlands as long as the work proceeds subject to certain conditions. If this is their determination, they issue an Order of Conditions. This is the permit for the proposed work. It lists any conditions the commission is placing on the work in order to protect the wetland. There is a 10-day appeal period before the work may proceed. During this time, the commission’s decision may be appealed by the applicant, an abutter, any affected individual, or any 10 citizens of the town.
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