Wetlands Protection Act and White Pond

[vics]

Concern is how this applies to a steep banked kettle pond.
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Originally emailed by Fred: (see attached doc)

Wetlands Protection Act and White PondI spoke to Delia today about the Wetlands Protection Bylaw as it pertains to White Pond. She said:

- They mainly want to protect the 25-foot buffer zone, and that is currently protected already under the state Wetlands Protection Act. She didn't see a big additional impact for White Pond abutters.
- She said the 25 feet would be measured from the top of the bank, and "the bank" would be within a few feet of the water, not the top of Shore Drive or White Avenue.
- She said the definition of "the bank" is at 310 CMR 10.54 (I have reprinted below. It is no higher than the mean annual flood level.)
- She said we should also know about 310 CMR 10.55 Bordering Vegetated Wetlands (I think there might be a patch of this at the far end of the Association Beach)
- And we should know about 310 CMR 10.56 Land Under Water Bodies and Waterways (She said this would affect docks with poles. It doesn't mean you can't have one, it just means there is oversight.)
Delia offered to come to one of our next WPAC meetings and discuss how this would affect our area. She will let me know in the next day or so if Monday Dec 22 works out. If not, she will try for the end of January.
There will be a public hearing on January 15th.
They plan to issue a proposed bylaw in the Warrant in early January. She said it could be changed after that, so meeting with us on January 27 wouldn't be a waste.
I also spoke with Joanne Loynd of Warner's Pond Stewardship Committee. Their next meeting is this Thursday and they will be discussing this bylaw. They had gone to the outreach meetings, but had not reviewed the actual proposed bylaw. I sent her Judith Sprott's comments.


- Fred-PS: Details on the Act:


Wetlands Protection Act (Law)
http://www.mass.gov/dep/water/laws/ch131s40.pdf
Wetlands Protection Act (Regulations and Appendices)
http://www.mass.gov/dep/service/regulations/310cmr10a.pdf
http://www.mass.gov/dep/service/regulations/310cmr10b.pdf
10.54: Bank (Naturally Occurring Banks and Beaches)
...
(2) Definition, Critical Characteristics and Boundary.
(a) A Bank is the portion of the land surface which normally abuts and confines a water
body. It occurs between a water body and a vegetated bordering wetland and adjacent flood
plain, or, in the absence of these, it occurs between a water body and an upland.
A Bank may be partially or totally vegetated, or it may be comprised of exposed soil,
gravel or stone.
(b) The physical characteristics of a Bank, as well as its location, as described in the
foregoing 310 CMR 10.54(2)(a), are critical to the protection of the interests specified in
310 CMR 10.54(1).
(c) The upper boundary of a Bank is the first observable break in the slope or the mean
annual flood level, whichever is lower. The lower boundary of a Bank is the mean annual
low flow level.

[vics]

Reply to Fred from Judith:

Wetlands Protection Act and White PondThanks for all your information, the references to relevant sections of the Wetlands Protection Act and for your outreach. As soon as I saw the "bank" definition in your email, I remembered working with it and it always puzzled me. If Delia believes that the upper boundary of a "bank" bordering White Pond would be interpreted as being only a few feet from the water, that's less troublesome than other determinations could be. However, as I read the language describing a "bank" in the Wetlands Protection Act, most of it does not seem relevant to a kettle pond. Mean annual flood level, and mean annual low flow level are hard to apply to a pond that rises and falls on the long time line and to the degree that White Pond does. I always thought one of the WPA's descriptions of a bank - "it occurs between a water body and an upland" - sounded like a nice, simple definition.

I believe that a "local control" bylaw should be applied with an even hand, in accordance with clear and applicable legal language and it should result in a reasonably predictable and understandable outcome. Where that is not possible, then a "special district" can be created with definitions, etc. that fit the reality of a particular wetland resource. Instead it appears that under the proposed Wetlands Bylaw, White Pond property owners trying to get permission for some activity have to take it on faith that the NRC will be able to make an objective and appropriate determination under the bylaw. I have been told not to worry because the law doesn't mean what it says and even it does, somehow the Commission will do what's right, but I don't think that is way the law should work.

Look forward to Delia responding to White Pond concerns either Dec. 22 or in January.

[WhitePond]

Reply to Judith from Delia:

Judith,

The Wetlands Protection Act definitions for wetland resource areas would be the same under the proposed bylaw. Bank is a reasonably easy field determination for kettle ponds – a wetland scientist will flag the first observable break in slope or the mean annual flood level, whichever is lower. We have many applications on file where homeowners have had this resource area flagged around White Pond and no one has ever indicated that it was problematic or confusing.

The bylaw is intended to provide clarity for activities that are currently regulated under the state Act. Science shows that many activities near wetlands can harm the wetlands ability to provide the free public services we all enjoy from wetlands – clean drinking water, excellent wildlife and fisheries habitat, and pollution prevention to name a few. The state Wetlands Protection Act does not prohibit development at the edge of a wetland, and the Commission occasionally hears from developers that the 25-foot No Disturb Zone policy is “just a suggestion”. They are right – a policy has no standing in a court of law. Developing the shores of White Pond with new buildings would jeopardize the protection of wetlands and White Pond, and could be allowed by the state DEP.

The Commission has successfully administered the 25-foot No Disturb Zone policy for 15 years. This will be codified into a bylaw. The Bylaw will PREVENT wetland encroachments and degradation, but also will have exemptions for existing structures, minor repairs, landscaped areas, agricultural activities and others.

I’m not sure who has told you “not to worry because the law doesn't mean what it says and even it does, somehow the Commission will do what's right”. It is a very puzzling statement. The Commission currently administers the Wetlands Protection Act fairly and consistently, and would continue to do so with a bylaw, which may be what the person who told you this intended to say.

Al Easterday, NRC chair, and I are looking forward to attending next week’s WPAC meeting to discuss the bylaw further. The Commission is in receipt of both your comment letters and will be responding to each.