Boston is home to several unique inland and coastal wetland and waterway resources, ranging from freshwater rivers and creeks to the oceanfront. As developments are permitted upward and outward, Boston and other municipalities are attempting to support the need for more housing and other development while also preparing to withstand the most severe impacts of climate change. The balance between development and conservation can be seen in wetlands protection laws, and, in Boston, the Boston Conservation Commission fills the vital role of preserving the city's wetland resources. If you're planning a project that may impact wetlands, waterways, or other protected areas, obtaining a permit, called an Order of Conditions, from the Commission is a necessary step. In this post, we will guide you through the process of obtaining permission for a development project that is subject to local and state wetlands protection laws.
Determine whether your project requires wetlands permits.
In Boston, that means checking in two places. First, under the Massachusetts Wetlands Protection Act, the Commission must review projects that involve activities such as construction, dredging, filling, or alteration within wetland resource areas such as banks, beaches, dunes, flats, marshes, or swamps that border certain water bodies, land under water bodies, land subject to inland or coastal flooding or tidal action, and riverfront areas. The Commission may also review projects that fall within a 100-foot “Buffer Zone” to certain wetlands. Second, you will need to check whether your project impacts additional wetlands protected under the Boston Wetlands Protection Ordinance (BWPO), such as vernal pools, intermittent streams, and what the BWPO describes as the Coastal and Inland Flood Resilience Zones. These are areas that may be impacted by flooding due to future impacts of climate change, such as sea level rise and extreme precipitation.
In addition to the availability of mapping tools, you can find out if your project is in a wetland resource area and requires certain permissions under the Act or the BWPO by submitting a Request for Determination of Applicability (RDA). If you are unsure whether your project requires wetlands permits, it is crucial to either file an RDA or, at least, consult Commission staff or your own environmental consultants for the most up-to-date information and guidance when planning a project as specific boundaries may vary or change over time.
Assemble the required documentation.
This typically includes project plans, detailed plot plans with wetland delineations shown, engineering drawings, wetland delineation reports, and any other related studies or surveys. As you consult with your project team on assembling documents, make sure to check the applicable plan requirements because different conservation commissions have varying plan detail and formatting requirements for application submissions. The Boston Conservation Commission published an application checklist that can be referred to as a helpful guide as you are assembling the required documentation.
Prepare the Notice of Intent (NOI).
The NOI is the formal application submitted to the Conservation Commission. It outlines the project's scope, purpose, location, potential environmental impacts, and proposed measures to mitigate any adverse impacts to wetland resource areas. Be thorough and provide all the required information to avoid unnecessary delays and further requests for information. If your project is in a municipality that has its own local wetlands protection ordinance or bylaw, you will need to determine whether there are any additional filing requirements or forms beyond those required under the Act. While most municipalities will accept the standard NOI as the application for a permit under a local law, some, like Boston, will have a different or additional form to accompany the complete application.
Address the wetlands protection regulations in the application materials.
Familiarize yourself with the Act’s regulations and, if applicable, any implementing regulations under local wetlands laws. Then, in your NOI, be prepared to demonstrate how your project meets the necessary criteria. The Act’s regulations describe specific performance standards for each wetland resource area, and, if impacts meet or exceed certain thresholds, the mitigation and/or wetland restoration required before your project can be permitted.
Engage with the Conservation Commission.
Participate actively in the review process by attending pre-filing meetings and public hearings. While pre-filing meetings with Conservation Commission staff are not required, they provide an invaluable opportunity to present your project, address concerns, and receive useful feedback from staff. In most cases, public hearings are required before the Conservation Commission permits a project. Demonstrating your commitment to environmental stewardship; expressing your willingness to collaborate; and emphasizing the mitigation, enhancements, or restoration you propose in meetings and hearings can enhance the chance of obtaining a favorable Order of Conditions.
Obtain and record the Order of Conditions.
Once the Conservation Commission has reviewed your application, held its public hearing, addressed any concerns, and considered mitigation measures, they will issue an Order of Conditions. This document will outline the approved project conditions, mitigation, and any ongoing monitoring or reporting requirements. Adhering to these conditions is essential to maintaining compliance and ensuring successful project completion. After you receive an Order of Conditions, you will need to make it effective by filing a copy in your property’s title record at the appropriate registry of deeds.
Securing an Order of Conditions from the Conservation Commission is a critical and necessary step in any project that may impact wetland resources. By carefully reviewing both the procedural and environmental requirements, collaborating with the Commission, and adhering to its processes and regulations, you can set your project up for success. Wetland protection laws are not intended to preclude development. If you propose a responsible project that acknowledges Boston's natural resources, the balance between conservation and development intended by Massachusetts wetland protection laws will be an advantage to your project.
If you have questions regarding the Massachusetts Wetlands Protection Act or other local wetlands laws and regulations, feel free to contact Partner Sammy Nabulsi by e-mail at ssn@rose-law.net or by phone to discuss or brainstorm permitting solutions for your project.