Amendment Or Project Change? - Berkshire Environmental Action Team

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The regulations of the Wetland Protection Act provide two procedures for changing a project that has already been permitted. The first procedure is to apply for an Amendment to the Order of Conditions. This amendment procedure requires a public hearing and allows proponents or opponents to appeal the commission’s decision. This is the procedure that was abandoned by the college and SK Design.The second procedure is to request from the Conservation Commission a project change or modification. This procedure is intended to accomodate small changes in a project without requiring the applicant to go through the entire permitting process and public review. A representative of the DEP gave an example of the kind of change allowed by the project modification procedure. He said this procedure is intended to be used for small changes such as having to move a silt fence to a new position because rock immediately below the surface prevented it from being entrenched into the ground. The DEP also describes this procedure as the one to be used to correct typographic errors in a permit. A different representative of the DEP explained to BEAT that even amending an Order of Conditions may only be done if the result is to lessen the environmental impact of the project. If the result will be an increased impact, a new Notice of Intent must be filed and the permitting process must be started over.

By June of 2001, just a few months after the Amendment to the Order of Conditions was withdrawn, the college and SK Design considered re-filing the Amendment to the Order of Conditions, and weighed this option against filing a simpler, although probably inappropriate, project modification.In a memo to college president Barbara Viniar, SK Design pointed out that

“The filing of an amendment will invite abutters to voice their concerns and will open the college up to an appeal. This is a concern as the commission is unpredictable and may chose (sic) to modify our plans and these modifications may not be acceptable to the college faculty and/or administration. The possibility of project modification must be considered.”

Impact on Rare Species Habitat Considered?

At a meeting of the Conservation Commission at which the college’s request for a project change was being considered, the Commission Chairman expressed concern that the Commission had not yet received comments from the Natural Heritage and Endangered Species Program.

Untimely Notification

The city’s Conservation Agent and a representative of SK Design Group informed the Commission that NHESP had received the appropriate material for review and had delayed more than 45 days to consider the material and offer comments, and that the Commission should not wait any longer for a response from that agency.

SK Design Group representative did not disclose, however, that new material had been sent to NHESP on the same day as the Commission’s meeting.

It is obvious that NHESP had no opportunity to properly review the new material in advance of the public hearing.

Rare Species: Standards and Procedures for Determining Adverse Impacts to Rare Species Habitat (DWW Policy 90-2)

BEAT Analysis

Despite the fact that the earlier application for an Amendment to the Order of Conditions was withdrawn at the suggestion of the Department of Environmental Protection, SK Design and the college decided to ask the Pittsfield Conservation Commission to allow the changes under the project modification procedures. The Pittsfield Conservation Commission allowed the college to use this procedure despite the magnitude of the requested changes and despite the fact that this procedure bypassed public review (in fact this was exactly the advantage that SK Design saw in this procedure).

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