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March/April 2011

The Newsletter of the Massachusetts Association of Conservation Commissions

Inside President’s Message . . . . . . . . . .2 News from the Hill: MACC Promotes Municipal Enforcement Legislation . . .3 Take Five Steps Now to Avoid Problems During Snowmelt and Spring Rains . . . . . . . . . . . .4 Compensatory Mitigation: A Federal Perspective . . . . . . . . .11 Spring/Summer 2011 Educational Offerings . . . . . . . . . . . . . . .12, 13 Spring/Summer 2011 Registration Form . . . . . . . . . . .14 Mass Clean Energy and Climate Plan for 2020 . . . . . . . . . . . . . .15 AMWS/MACC Networking Event 16 The Future of North Shore’s Great Marsh . . . . . . . . . . . . . . .17 MACC 2011 Environmental Service Awards . . . . . . . . . .18-20 Outrageous Excuses for Erosion and Sediment Control Failure . . . . .21 Thank You to MACC’s 2011 Annual Environmental Conference Sponsors . . . . . . . .23 Congratulations to Fundamentals Graduates . . . . . . . . . . . . . . . . .23 Calendar . . . . . . . . . . . . . . . . . . .24

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Volume XXXXI Number 2

MassHighway Not Immune from Local Wetland Regulation By Nathaniel Stevens, Esq.

Massachusetts' highest court recently ruled that the Massachusetts Highway Department is subject to limited regulation by local boards of health. This decision bodes well for Conservation Commissions exercising authority over MassHighway and other state agency projects under their local wetlands bylaw or ordinance and related local wetland regulations. In Town of Boxford v. Massachusetts Highway Department & another, the Supreme Judicial Court (“SJC”) held that an entity created by the Massachusetts Legislature, including state agencies such as MassHighway, is subject to local regulation, but only to the extent that those regulations do not interfere with the agency's ability to fulfill its “essential governmental purposes” and such regulations have only a “negligible effect” on its operations. (MassHighway Not Immune....continued on page 6)

Changes to Massachusetts Endangered Species Act Regulations By Heidi Ricci and Patrick Garner

2011 MACC Fall Conference October 15 Clark University Worcester

2012 MACC Annual Environmental Conference March 3 Holy Cross College Worcester

On October 15, 2010, revisions took effect on the regulations (321 CMR 10.00) under the Massachusetts Endangered Species Act (MESA). The regulations, including a summary, filing requirements and various forms may be found at: www.mass.gov/dfwele/dfw/nhesp/regulatory_ review/mesa/mesa_home.htm. The Natural Heritage and Endangered Species Program (NHESP) adopted these changes to make the rules more clear and transparent for both landowners subject to regulation and members of the public interested in protection of state-listed rare species. These updates to MESA permitting (Changes to MESA Regulations....continued on page 7)

President's Message Massachusetts Association of Conservation Commissions Community Conservation Since 1961

By Patrick Garner

Board of Directors President Patrick Garner First Vice President Kathleen E. Connolly, Esq.

Northborough Hopkinton

Vice President for Education Michele Grzenda

Lincoln

Vice President for Advocacy Kenneth F. Whittaker, Ph.D., Esq.

Wenham

Treasurer Sally A. Zielinski, Ph.D. Secretary Margaret Carroll Directors Amy Ball Walter Bickford Jo-Anne Burdin Shepley Evans Brandon Faneuf Ingeborg Hegemann Scott Jackson Brenda Kelly Gregor McGregor, Esq. Tim Purinton E. Heidi Ricci Jennifer Steel Janice Stone Seth Wilkinson

Carlisle Upton Sandwich Berlin Templeton Stockbridge W. Warwick, RI Stow Whately Bedford Concord Ipswich Shirley Wayland Shutesbury Orleans

Board of Advisors Bernie McHugh Edward O. Wilson Brian Rehrig George Wilslocki President’s Council Alexandra Dawson, J.D. Judith Eiseman George Hall, Esq. Executive Director Linda Orel Associate Director & Education Coordinator Michèle Girard Newsletter Editor Membership & Publications Coordinator Lindsay Martucci Technology Coordinator Database Administrator Rick Chaff ESC Program Coordinator Nancy Putnam Bookkeeper Candace Domos

MACC Office 10 Juniper Road, Belmont, MA 02478 Phone 617.489.3930 • Fax 617.489.3935 www.maccweb.org 2

This regular President's Message will serve to let you know about ongoing evolutions within MACC. Some of the more notable happenings and announcements follow. • MACC has begun to receive queries regarding FY2012 dues. Given the tight budgetary constraints imposed on towns and cities throughout the state, I'm pleased to confirm that membership dues will not rise in FY12 by more than three percent. • Starting with the next issue, our Newsletter is off i c i a l l y becoming a quarterly. In acknowledgment of that change, the hitherto named MACC Newsletter becomes officially titled, The MAC C Quarterly. We will continue bringing you the same timely and important news that we have for years. In addition, we will increase the number of stories and articles in each edition. Breaking news alerts will be emailed as necessary. Last, we expect to enhance our publishing software to make the newsletter more robust and useful. Look for changes over the next year! • MACC is ramping up its advocacy efforts. Although we have always been strong advocates for environmental policies, MACC will be a far more active player in coming years. Thanks to the expertise and “Hill” connections of our new Executive Director, Linda Orel, MACC will be a far stronger presence. • We should all be aware that MassDEP will inevitably continue to change, particularly under the budgetary pressures that have been a constant reality over the last half decade. We have already met in person with the new MassDEP Commissioner, Ken Kimmell, and have offered him ready access to our expertise. Please expect us to reach out to you in the next year for support and opinions as well. After all, you are MACC, and our efforts are expended to maintain and enhance the natural resources throughout the state that you work so hard to protect. • I want to welcome new and returning MACC Board members. Our Board has a unique mix of attorneys, wetland scientists, commission agents, educators and business persons. This is a hard working board, with many members putting in countless hours through the year. No glamour here, yet each of us believes thoroughly in MACC's mission. I speak for all when I say that the time we volunteer is well worth it. • Last, I note that any MACC member is welcome to come to MACC board meetings-just let us know with a call or email that you expect to sit through one of our Monday evening meetings! Until the next issue,

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March/April 2011

NEWS FROM THE HILL

MACC Promotes Municipal Enforcement Legislation By Kate Connolly, Esq.

MACC is taking a leading role to enact state legislation that would enable cities and towns to enforce their ordinances and bylaws through increased penalties, that is, General Law Chapter 40, Section 21D, the so-called noncriminal disposition statute. The pending legislation, known as, An Act Relative to the Effective Enforcement of Municipal Ordinances and Bylaws (“local enforcement bill”) seeks to raise the maximum penalty that municipalities may seek for violations of local laws from the current $300 to $1,000 (including but not limited to local wetlands bylaws and ordinances). The bill would also authorize the superior courts to impose these civil penalties sought by a municipality, in conjunction with other equitable relief, such as a stop work order. Previous attempts to increase the penalty or fine amount to several thousand dollars per violation have not garnered sufficient support, so MACC and other proponents are now

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promoting a more conservative approach: the maximum allowable penalty has been limited in recognition of today's economic realities. Nevertheless, if the bill passes it will be the first time that the penalty amount has increased in thirty years. Under current law and the proposed legislation, a city or town must first adopt an ordinance or bylaw authorizing the non-criminal disposition of that law under Section 21D. In other words, a city or town must independently exercise this right through adoption of an additional bylaw or ordinance. Subsequently, the designated municipal authority may issue a notice of violation such as a ticket or other local form. The monies collected from civil fines, whether an individual agrees to pay the fine without appealing to court or after a court hearing, go back to the municipality. Without a non-criminal disposition addition to local bylaws and ordinances, when a violator fails to appear in (MACC Promotes Municipal Enforcement....continued on page 10)

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Take Five Steps Now to Avoid Problems During Snowmelt and Spring Rains By Brenda Kelly

Record-setting snow volume can lead to erosion, flooded neighborhoods and wetland degradation. Here are five steps Conservation Commissions should plan now to minimize drainage, flooding and washout challenges caused by snowmelt and spring rains. (1) Proactive emergency management Identify likely trouble spots and arrange vigilance spotters to be on the lookout for conditions that could lead to washed-out culverts, bank overflow, bank damage and widearea flooding. Tap members of your committees such as conservation area, trail and bikeway stewards. Work with property owners, department of public works staff as well as city or town boards. Remind them to obtain permits before working in wetlands, streams and buffer zones, and to follow correct procedures when doing the work.

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(2) Flooding awareness Review flooding response protocols with your municipal boards. When the snow melt begins, spring rain that normally creates localized flood conditions will have greater impact this year. Rain will have nowhere to go when the ground is frozen. Where the ground is not frozen, it may be saturated already. Rivers and floodplains will be inundated. The usual trouble spots could become dangerous due to flooding and swiftmoving water. Under-sized culverts may be overwhelmed and degrade rapidly. (3) Snow storage siting and operation Remind residents, commercial property owners, snowplow operators and town workers that snow storage siting and runoff should be directed away from wetlands,

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rivers and streams and their buffer zones. Where this is not feasible, they should contact the Conservation Commission to discuss site-specific protections and sedimentation barriers. (4) Preventative maintenance Request residents to monitor storm drains in their neighborhoods and remove leaves and debris that may restrict water flow. Remind all commercial and industrial property owners to ensure their personnel and subcontractors understand their operation and maintenance procedures and site plans and follow them. Review proactively all active projects where erosion and sedimentation control may become a problem. Any location where the soil was not stabilized by vegetation growth in the autumn is likely to incur a runoff challenge this spring. Require property owners to inspect, repair and reinforce the drainage, erosion and sedimentation protections they installed in the autumn; haybales and silt fencing are probably degraded by the time the snow melts.

restriction will realize the protection provided by that same buffer zone in avoiding even more flooding damage during snowmelt and spring rains. Remind residents that no treatment occurs for runoff from winter snow and spring rain. As water flows from parking lots and driveways to storm sewers to the local rivers, what's in the runoff goes directly into the streams and rivers including de-icing chemicals such as road salt and motor vehicle residue such as gasoline and oil. Appoint a Commissioner to write a short article for your local newspaper, your town's newsletter, website and Facebook page. Consider using photos from March 2010 flooding in your city or town to remind residents and property owners that their vigilance and compliance are essential to everyone's safety. Brenda Kelly is Vice President of Stra t egic Communications at Atmospheric and Environmental Research and a MACC Director.

Verify with each project's environmental site supervisor that the project's (temporary or permanent) stormwater management system and wetland and buffer protections are operating properly. We recommend the environmental site supervisor should provide a short narrative and datestamped photos so the Commission can review quickly and triage which locations may require additional measures. Confirm that each environmental site supervisor has authority to take corrective action on the site on a 24-hour basis. The Commission may wish to require dated photos to document the extent of standing water, flooding, and/or erosion after each spring rainstorm of a specific magnitude, perhaps 1.5-inch or greater. Inform project owners that the Commission must be notified immediately of any adverse environmental impacts that develop. You may also want to obtain signatures now so that the Commission's members and agents have rightof-entry onto the property to inspect for compliance. (5) Education on wetland values and impact Leverage heightened awareness of flooding and washouts to educate residents of the value of wetlands, buffer zones and floodplains in providing flood control, storm damage prevention, groundwater supply and protection of public or private water supply. The same property owner who may complain about a buffer zone MACC Newsletter

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(Continued from page 1, MassHighway Not Immune....)

Importantly, in its December 28, 2010 decision, the SJC specifically rejected MassHighway's assertion that it enjoyed “sovereign immunity” and thus was exempt from local regulation for health and safety laws, in this case, the Town of Boxford Board of Health's drinking water well requirements. Many Commissions have been told, and until now believed, they could not apply their local wetlands bylaw or ordinance to MassHighway projects because, as a state agency, MassHighway was immune from local municipal bylaws or ordinances. MassHighway is now part of Massachusetts Department of Transportation or MassDOT. This impression may have been reinforced by the occasional bond or other funding bill exempting a specific bridge, highway repair or upgrade, or a statute in the General Laws, which, strictly speaking, are something different than what was involved in this case. The facts of this case did not appear to be disputed. MassHighway owns and operates a salt shed in the Town of Boxford near Exit 53 on Interstate 95. Salt and other chemicals are stored there for winter use on Interstate 95 and several nearby state roads. MassHighway has acknowledged that the stored salt has contaminated neighboring private wells, but refused the Town's request to relocate the facility. In February 2006, MassHighway

began work to install replacement wells at aff e c t e d residences. Saying it was immune from local regulation, MassHighway did not obtain a well permit required by the local Board of Health's regulations. The “shallow” wells MassHighway dug are specifically prohibited in Boxford. The Board of Health brought enforcement actions against MassHighway, and the matter ended up in Superior Court where MassHighway again insisted it enjoyed “sovereign immunity” and sought to have the suit against it dismissed. The Superior Court judge did not dismiss the case and MassHighway appealed. The appeal was transferred to the SJC. The SJC sent the case back to the lower court to determine whether, given the facts in this case, the local regulation would interfere with MassHighway's “essential governmental purpose” or if the regulation would have more than a “negligible effect.” While the SJC did not in this decision explain these terms, in prior decisions it has looked to the statute creating the particular agency to determine what is its “essential governmental purpose” or “function.” The SJC acknowledged that this term is construed broadly and often serves to exempt a state entity from local regulation. The court said that determining what is more than a “negligible effect” depends on the facts specific to the case. If a state agency such as MassHighway asserts exemption from your local bylaw or ordinance, you should ask for the specific statute or budget enactment for the particular project, or class of projects, that the agency asserts as its basis for being exempt. If it cannot provide a specific act of the state Legislature exempting it or the work it proposes (as has been the case for some specific bridge projects), then your Commission should apply its local wetlands bylaw or ordinance and your regulations to the project in such a manner that does not interfere with the agency's “essential government purpose” or have more than a “negligible effect” on its operations. That is now the law in Massachusetts. Nathaniel Stevens is an Associate at McGregor & Associates and the Chair of the Arlington Conservation Commission

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(Continued from page 1, Changes to MESA Regulations....)

refine the rules adopted in 2005. They were promulgated in part as a reasonable alternative to extreme measures proposed in pending legislation and a lawsuit that, if successful, would effectively gut MESA. The revisions cause no change in the procedures for NHESP review of projects in Estimated Habitat of rare species under the Massachusetts Wetlands Protection Act (WPA). For instance, if the proposed project is within Estimated Habitat for state-listed rare wildlife, a copy of the filing must be submitted to the NHESP, even if the project qualifies for a MESA filing exemption. The MESA and WPA reviews are separate and should not be confused - only the rules for MESA permitting have changed. There a r e , h o w e v e r, s e v e r a l c h a n g e s t h a t C o n s e r v a t i o n Commissions should note, including: • Schedule and process for updating of Priority Habitat maps; • Expanded grandfathering and exemptions, including limited exemptions for projects obtaining an Order of Resource Delineation (ORAD) under the WPA before an area is mapped as Priority Habitat; • Mitigation standards and guidance; • Statewide Conservation Plans and streamlined permitting for Species of Special Concern; and • Municipal-wide planning and permitting for communities with substantial areas of Priority Habitat.

Endangered species (but not Species of Special Concern). As always, it is important that sightings of rare species be carefully documented and observations submitted to NHESP on the required forms. Photo Courtesy of Mass Audubon Conservation Commissioners and other citizens should work proactively to document rare species. The new rules provide for a 60 day public review period for the draft map revisions. Comments will be accepted and considered on the “physical or biological features of the habitat, or the current scope of existing development in the area.” If you know of rare species in your community, MACC recommends that you do not wait until the draft maps are released or a project is proposed. Even reports of new sightings within existing Priority Habitat should be reported, since records more than 25 years old are not included when the maps are updated. NHESP considers the overall size and viability of a species' local population when deciding which ones to include in the maps. Exemptions and Grandfathering The regulations at 321 CMR 10.14 provide exemptions (Changes to MESA Regulations....continued on page 8)

Map Updates NHESP has periodically updated Priority Habitat maps every two years based on new observations of rare species, scientific knowledge of species' habitat needs, quality of habitat in a particular location, changes in land use and other new information. (Note: Estimated Habitats of rare wetlands wildlife, used under the WPA, are a subset of the Priority Habitat maps.) The maps will now be updated every four years instead of every two. The next update is scheduled for January 2012. This new schedule is intended to provide more consistency and predictability for landowners in planning for the use of their property. However, it also means that newly discovered populations of rare species may not be protected by permitting requirements under MESA if the population is not within the mapped habitat in effect at the time a project is proposed. NHESP retains some ability to review and require permits for sites outside of Priority Habitat where there are new records of Threatened or MACC Newsletter

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(Continued from page 7, Changes to MESA Regulations....)

for certain categories of projects. These are mainly projects that have small impacts or are routine maintenance of existing development. The revisions add some new exemptions and clarify other existing ones. One provision now exempts a new residential unit built on an infill lot no more than two acres in size if the lot is part of a previously approved subdivision and does not require an Order of Conditions under the WPA. Further exemptions are found in related sections of the regulations, for example 321 CMR 10.18 revises performance standards to result in an automatic determination of no taking of a rare species for projects impacting no more than 10,000 square feet of Priority Habitat. This performance standard applies to animal species of Special Concern if the project is not subject to the WPA and is more than 300 feet from a vernal pool. In addition, under this provision determinations of no take will now be valid for five years rather than three years, and the deadline for starting work under a Conservation and Management Permit can be extended at the agency's discretion. The grandfathering provisions previously issued as guidelines have now been formally adopted within the regulations, with a few revisions. A project that has received an ORAD on a site outside of Priority Habitat will

be exempt from MESA review if the site is mapped as Priority Habitat after the ORAD is issued, provided certain other permits are secured and an Order of Conditions is obtained within three years of issuance of the ORAD. MACC raised concerns regarding the confusing language of this Photo Courtesy of Richard Johnson provision during the comment period on the draft regulations. We recommend that Conservation Commissions pay close attention to this provision and projects that fall under it, and consult with NHESP if questions arise. MACC is also interested in hearing from Commissions that encounter difficulties with this or other provisions of the regulations. Mitigation Standards and Guidance Projects receiving permits allowing takings of rare species are required to provide mitigation that will result in a long-term net-benefit to the species. To improve consistency and predictability, the revised regulations specify general mitigation standards to meet the “long-term net-benefit standard” (321 CMR 10.23). The ratios for area of mitigation versus impact are, Endangered 3:1, Threatened 2:1, and Special Concern 1.5:1. NHESP may allow variances from these standards on a case-bycase basis but must explain those decisions in writing, including discussing the factors considered. Mitigation may include habitat protection and/or other measures such as habitat management or contributions to research on the species. NHESP also will post guidelines for meeting the performance standards for species for which three or more Conservation and Management Permits are issued in a three-year period. This will help to ensure that different projects affecting the same species are subject to consistent requirements, and guides landowners on what mitigation should be expected when they are planning projects. Impacts to species of Special Concern will be afforded more flexibility than impacts to Threatened or Endangered species, and NHESP will only exert jurisdiction over new occurrences of Threatened or Endangered species when commenting through the MEPA process on projects outside of Priority Habitat. (Changes to MESA Regulations....continued on page 9)

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Statewide Conservation Plans for Species of Special Concern One new major provision allows for the development of statewide Conservation Plans for species of Special Concern. These new plans will identify priority areas essential for the long-term viability of the species in the Commonwealth. Once the plan is adopted, projects outside of the conservation protection zones specified in the plan will be allowed to proceed in accordance with the terms of a general permit. Mitigation for projects outside the conservation zones may include contributions toward protection of land within the zones. No new areas of Priority Habitat for the species will be mapped after the plan is approved. The Eastern Box Turtle will be the first species for which such a conservation plan will be developed. The draft is scheduled for public comment and will be released later this spring. The new provision represents a major shift for NHESP and is intended to secure the long term viability of the species on large-scale conservation zones, while de-emphasizing the previous creation of numerous smaller, scattered sites across the state. Municipal-wide Planning and Permitting For communities with substantial areas of Priority Habitat, a new NHESP planning tool is now available. The municipality can work with NHESP to develop a comprehensive conservation and management plan and permit for the entire town or selected areas (e.g., a local industrial park or development zone). This may include designation of areas for building permits within a large site, facilitating planning, and development in a more coordinated manner benefiting both the affected species and development interests. At the request of MACC and other commentators, NHESP added a provision requiring a public participation process for these municipal plans and permits.

Photo Courtesy of Jake Kubel

application of the law, while also improving public transparency and retaining critical fundamental protections for our natural heritage. We look forward to seeing annual reports from NHESP on the results of the new regulations. We also advise each Conservation Commission to review the revised regulations to help each city and town develop a working understanding of the changes. Heidi Ricci is a Senior Policy Analyst at Mass Audubon and a MACC Director; Pat Garner is a Wetlands Scientist and MACC President.

Conclusion The Massachusetts Endangered Species Act is one of the Commonwealth's most important environmental statutes, and one of the most effective tools in the nation for protecting rare and endangered species at the state level. Recently, this law has been subject to attack both in court and through proposed legislation. MACC is working actively with other environmental groups to oppose those efforts, which would render MESA ineffective in protecting rare species. The recent revisions to the MESA regulations address many of the concerns raised by landowners and developers seeking more clarity and consistency in the MACC Newsletter

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(Continued from page 3, MACC Promotes Municipal Enforcement....)

court and/or to pay a penalty or fine, a municipalities' only recourse is to file a criminal complaint. Any fine paid after a criminal conviction is paid to court, and a city or town gets a portion. The cost, time and personnel resources needed to pursue such a criminal action impose substantial burdens on municipal efforts to deter or punish egregious violators of local laws. Further, if a municipality goes to court seeking equitable enforcement, such as an injunction to stop a bylaw violation from continuing, under current law, the superior court lacks the authority to assess a penalty, even when there has been a willful violation of the law that harms the public health, safety or environment. The local enforcement bill would allow municipalities to seek and the court to impose civil penalties and equitable enforcement at the same time and through the same process. (Currently, a Commission can still seek both equitable remedies and fines, but through separate proceedings.) As with any type of court proceeding, noncriminal disposition does not provide a guarantee of what a judge will decide, but this process can be less expensive and faster for municipal officials to use, without the expense of town counsel. The proposed amendment would strengthen, but not

entirely change the legal process for enforcement. Municipalities still would not possess unilateral authority to assess fines or penalties and will still need to present a case in court. MACC supports the local enforcement bill because it would provide cities and towns with sharper teeth through the ability to pursue alleged violators of local laws in superior court and raise the maximum violation amount to $1,000. The proposed changes are more likely to garner more attention from potential and documented violators. This threat is also enhanced to some degree as each day that a violation is allowed to stand uncorrected can be considered as a new and separate violation subject to these penalties. As wetlands bylaws and ordinances are among the types of local laws that can utilize non-criminal disposition, MACC further supports the bill for the benefits it would bring to Commissions who administer those laws. MACC, through its Quarterly Newsletter, Environmental Handbook for Massachusetts Conservation Commissioners, and Helpline assistance continues to provide information and support on the drafting and adoption of wetlands bylaws and ordinances. MACC is working actively to pass this bill as the lead, statewide organization promoting it. Watch for E-MACC alerts about the progress of the legislation and the best times and ways to contact your elected officials. MACC believes that public support for this legislation will be key to its passage and strongly encourages your participation in this effort. To read the legislation filed by Representative Stephen Kulik and Senator James Eldridge during the 2011-2012 legislative session, see: http://www.maccweb.org/ documents/legislation/Municipal_Enforcement_Bill.pdf. Kate Connolly, First Vice President of MACC, is a land use and environmental attorney with Murtha Cullina LLP. She can be reached at 617.457.4096.

Environmental Consulting Services For Conservation Commissions Third Party Permit Reviews Wetland Delineation Reviews Construction Compliance Monitoring Erosion Control Plans Stormwater Management System Evaluations Wetland Restoration & Mitigation Plans Rare Species Habitat Studies Vernal Pool Assessments Wetland Plant Nursery and Planting Services

Wetlands Preservation, Inc. Environmental Consulting Services 475 Ipswich Road, Boxford, MA 01921 (978) 352-7903 47 Newton Road, Plaistow, NH 03865 (603) 382-3435 FAX : (603) 382-3492 E-MAIL: [email protected] Website: www.wetlandwpi.com

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Compensatory Mitigation: A Federal Perspective By Ruth M. Ladd, PWS

The US Army Corps of Engineers “(“Corps”) regulates the discharge of dredged or fill material into waters of the United States under the Clean Water Act and all work in navigable waters under the Rivers and Harbors Act. Until recently, the New England District of the Corps was usually able to get by with either not requiring mitigation for projects covered by our Massachusetts General Permit (“GP”) or accepting the mitigation required by the local Conservation Commission. This is changing due to a couple of national shifts in regulation and policy in the past few years. First, in 2007, the Corps issued revised Nationwide Permits (“NWP”) which are used in much of the US, but not New England where the Corps has a general permit for each state. The NWP regulations state: “Compensatory mitigation at a minimum one-for-one ratio will be required for all wetland losses that exceed 1/10 acre and require pre-construction notification, unless the district engineer determines in writing that some other form of mitigation would be more environmentally appropriate and provides a project-specific waiver of this requirement. For wetland losses of 1/10 acre or less that require preconstruction notification, the district engineer may determine on a case-by-case basis that compensatory mitigation is required to ensure that the activity results in minimal adverse effects on the aquatic environment. Since the likelihood of success is greater and the impacts to potentially valuable uplands are reduced, wetland restoration should be the first compensatory mitigation option considered.” [March 12, 2007 Federal Register, p. 11193, C.20(c)]

reduce the adverse effects of the project…” [C.19(g)] Although the New England District does not use the NWPs, we use many parts of them in developing our state GPs. Second, on April 10, 2008, the Corps and the US Environmental Protection Agency published regulations in the Federal Register entitled, “Compensatory Mitigation for Losses of Aquatic Resources; Final Rule” [33 CFR Part 332]. This is commonly called the Mitigation Rule (“Rule”). The Rule has rendered obsolete some previous guidance and formalized other guidance. The focus is on mitigation planning and performance so that the result will be self-sustaining aquatic resources that provide the desired functions. Key points in the Rule include: • A preference hierarchy is established: 1) Mitigation bank credits, 2) In-lieu fee (“ILF”) program credits, 3) (Compensatory Mitigation....continued on page 22)

and “For losses of streams or other open waters that require pre-construction notification, the district engineer may require compensatory mitigation, such as stream restoration, to ensure that the activity results in minimal adverse effects on the aquatic environment.” [C.20(d)] Also, Where certain functions and services of waters of the United States are permanently adversely affected, such as the conversion of a forested or scrub-shrub wetland to a herbaceous wetland … mitigation may be required to MACC Newsletter

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Spring/Summer 2011 Educational Offerings Valuable MACC educational programs are available to you this spring. Sign up as soon as possible to reserve your space.

Fundamentals for Conservation Commissioners (Middleborough Town Hall) Saturday, April 9 9:00 - 11:30 a.m. (Check-in 8:30 a.m.) 12:30 - 3:00 p.m. (Check-in 12:00 p.m.) Saturday, April 16 9:00 - 11:30 a.m. (Check-in 8:30 a.m.) 12:30 - 4:00 p.m. (Check-in 12:00 p.m.) Saturday, April 30 9:00 - 11:30 a.m. (Check-in 8:30 a.m.) 12:30 - 3:00 p.m. (Check-in 12:00 p.m.)

Unit 5 ~ Wetland Types: Their Functions and Values Unit 6 ~ Writing an Effective Order of Conditions Unit 2 ~ Getting Home before Midnight: How to Run an Effective Meeting Unit 4 ~ Plan Review and Site Visit Procedures (note longer class time-dress appropriately for field) Unit 7 ~ Open Space Planning & Protection Techniques Unit 8 ~ Managing Conservation Lands

Fee: MACC members $45 per Unit, Non-members $60 per Unit. Frederick J. Fawcett II Scholarships are available to MACC members - call the office at 617.489.3930. Anyone is welcome to sign up for the Units, which can be taken in any order. Times may vary slightly, depending on location. Confirmation with exact time and directions will be sent via email. Morning refreshments will be served. Bring a bag lunch.

Soil Erosion and Sediment Control Training Program Erosion and Sediment Control Problems and Solutions: What are the Options for Effective Prevention and Control? This full day workshop is geared toward Conservation Commissioners and inspectors and will introduce you to effective methods of erosion prevention and sediment control, including different BMP’s (Best Management Practices) and their applications. A site visit to an active construction site will be included. All participants will receive certificates for 6 Professional Development Units! Please dress for the weather. Workshop: 9:00 a.m. - 4:00 p.m. (Check-in: 8:30 - 9:00 a.m.) Friday, April 8 Saturday, April 16 Saturday, April 23 Saturday, April 30 Saturday, May 7

S. Egremont Fire Station, Egremont Wrentham Public Safety Building, Wrentham Stevens Memorial Library, Ashburnham Senior Center, Wellfleet Sturbridge Town Hall, Sturbridge

Fee: Workshop is Free for Conservation Commissioners and other local, state, and federal regulators. The fee is $85 for private consultants and non-regulators, who are MACC Members and $100 for non-members. Morning refreshments will be provided. Lunch is provided for a fee ($7.00) or bring your own, indicate preference when registering. 12

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Basic Wetland Delineation Workshops with John Rockwell Having delivered his “Basic Wetland Delineation Workshop” to hundreds of Conservation Commissioners and wetland aficionados in Marion, Massachusetts over the past several years, John Rockwell, Buzzards Bay National Estuary Program Wetland Specialist, will now split his one-day workshop into two full-day workshops. Participants in both workshops will become more familiar with the state methodology of wetland delineation through practice sessions, case studies and a field session; they’ll be introduced to plant identification and be shown how to use the DEP manual “Delineating Bordering Vegetated Wetlands under the Massachusetts Wetlands Protection Act”.

Basic Wetland Delineation: Soils

Basic Wetland Delineation: Vegetation

Saturday, May 21 (Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m. Marion Town House, Marion

Saturday, June 11 (Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m. Marion Town House, Marion

MACC Members $95 • Non-members $110

MACC Members $95 • Non-members $110

Focus is on hydric soils, indicators of wetland h y d rology and understanding the DEP BVW Delineation Field Data form: Section II. Indicators of Hydrology (limit 15) (2.0 Advanced Credits)

Focus is on wetland vegetation and understanding the DEP BVW Delineation Field Data Form: Section I. Vegetation. (limit 15) (2.0 Advanced Credits)

Lunch and DEP manual Delineating Bordering Vegetated Wetlands under the Massachusetts Wetlands Protection Act are included in each session. Bring pen/pencil and pocket calculator. Field work in the afternoon. Presented in cooperation with the Buzzards Bay National Estuary Program.

“Beyond Beginners” Wetland Delineation Workshop Saturday, May 7 (Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m. Marion Town House, Marion MACC Members $95 • Non-members $110 Ever heard the expression, “A little bit of knowledge can be a dangerous thing”? This workshop is designed to expand upon the information and techniques presented in John's two full-day Basic Delineation Workshops: Soils and Vegetation. Attendees will improve their understanding of the state delineation methodology and their ability to make those tough soils and vegetation determinations through practice sessions, case studies and field work. Lunch and workshop materials are included in the fee. Bring pencil/pen and pocket calculator. Optional: soils auger, sharpshooter and Munsell Color Book. Prerequisites: registrants must have previously attended both of John's full-day basic delineation workshops (soils and vegetation), provide proof of prior delineation training (college level) OR be a practicing wetland professional. (limit 15) (2.0 Advanced Credits)

8:00 - 8:30 8:30 - 10:15 10:15 - 10:35 10:35 - 12:00 12:00 - 12:30 12:45 - 4:00

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March/April 2011

AGENDA registration; coffee, etc. lecture: vegetation & analysis break lecture: difficult to analyze soils lunch (provided) field work

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MACC Spring-Summer 2011 Registration Form (or register online at www.maccweb.org/edu_workshops.html)

Name ____________________________________ E-mail _____________________________________ Commission/Organization _______________________________________________________________ Address __________________________ City____________________ State__________ Zip _________ Phone (w) _______________________________

(h) ____________________________

Please include your payment and mail to: MACC, 10 Juniper Road, Belmont, MA 02478. Membership fee applies to MACC members, Conservation Commissioners, and staff when members dues are paid. Cancellation must be received in writing (mail, fax, email) at least 2 business days prior to session. No refund or credit for less than 2 days notice. A $10 processing fee will be charged for cancellation. Call 617.489.3930 if you have questions. To receive program credit, you must attend entire workshop. Fax: 617.489.3935 • Email: [email protected]

Fundamentals for Conservation Commissioners (MACC Members $45 per unit, non-members $60 per unit) (✓ unit choices) Saturday • April 9 • Middleborough Town Hall Morning: Unit 5 ______ c0448 Afternoon: Unit 6 ______ c0449

$ ________

Saturday • April 16 • Middleborough Town Hall Morning: Unit 2 ______ c0450 Afternoon: Unit 4 ______c0451

$ ________

Saturday • April 30 • Middleborough Town Hall Morning: Unit 7 ______ c0452 Afternoon: Unit 8 ______ c0453

$ ________

Delineation Workshops “Beyond Beginners” Wetland Delineation c0457 (MACC Members $95, Non-members $110) (2.0 Advanced Credits) Saturday • May 7 • Marion Town House, Marion

$ ________

Basic Wetland Delineation: Soils c0458 (MACC Members $95, Non-members $110) (2.0 Advanced Credits) Saturday • May 21 • Marion Town House, Marion

$ ________

Basic Wetland Delineation: Vegetation c0459 (MACC Members $95, Non-members $110) (2.0 Advanced Credits) Saturday • June 11 • Marion Town House, Marion

$ ________

ESC Workshops Soil Erosion and Sediment Control (Free for Conservation Commissioners & other local, state & federal regulators) (For other MACC Members $85, Non-members $100) (2.0 Advanced Credits) Friday • April 8 • Egremont c0460 Saturday • April 16 • Wrentham c0461 Saturday • April 23 • Ashburnham c0462 Saturday • April 30 • Wellfleet c0463 Saturday • May 7 • Sturbridge c0464

(Yes ___ or No ___ adding $7.00 for lunch) (Yes ___ or No ___ adding $7.00 for lunch) (Yes ___ or No ___ adding $7.00 for lunch) (Yes ___ or No ___ adding $7.00 for lunch) (Yes ___ or No ___ adding $7.00 for lunch)

$ ________ $ ________ $ ________ $ ________ $ ________

TOTAL $ ________ Method of Payment: Check enclosed (payable to MACC ) ❑ ❑ Visa ❑ MasterCard ❑ American Express ❑ Discover Bill my credit card: Card Number: _____________________________ Expiration Date ________________ CVV Code______ 14

MACC Newsletter

March/April 2011

Massachusetts Clean Energy & Climate Plan for 2020: The Commonwealth's 10 Year Plan to Meet 25% Emissions Reductions By Eugenia Gibbons

On December 29, 2010, the Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) revealed the emissions reductions limit for the state had been set at 25 percent below 1990 levels by 2020 - the maximum allowed under Massachusetts' Global Warming Solutions Act (GWSA). Along with this announcement, the state also released the Massachusetts Clean Energy and Climate Plan for 2020. The unveiling of the state's plan and the determination of the 2020 limit further underscore why Massachusetts is a national leader of climate policy. A landmark piece of legislation, the GWSA was passed in 2008. It mandates that Massachusetts reduce its greenhouse gas (GHG) emissions, economy-wide, 10-25 percent below 1990 levels by 2020, and 80 percent below 1990 levels by 2050. The 136-page Massachusetts Clean Energy and Climate Plan for 2020 was developed by an interagency technical team at EOEEA and informed by extensive scenario modeling conducted by a team of expert consultants. It also reflects recommendations made by the state's Climate Protection and Green Economy Advisory Committee. It should be noted that this plan is separate from a climate adaptation plan also generated by EOEEA per the GWSA. The adaptation plan, the release of which is forthcoming, will be informed by the recommendations made by the Climate Change and Adaptation Advisory Committee. The Massachusetts Clean Energy and Climate Plan layers new and expanded measures onto existing policies and programs with a high potential for “generating significant energy cost savings and to create clean energy jobs.” Policy Solutions at a Glance In total, the report contains more than 20 policy solutions. Some strategies are regulatory, others require legislation or executive action, while still others can be led by local or municipal efforts, but all combine to create opportunities for clean energy growth and GHG reductions.

Tree Retention and Replanting One new policy, unique in its simplicity, is a measure related to Tree Retention and Planting to Reduce Heating and Cooling Loads. The contribution of trees to reduced heating and cooling loads in buildings is welldocumented; the recent decimation of tree populations by the Asian Longhorn Beetle has provided an unintended case study and an unwelcome reminder of precisely how valuable the cool shade of a tall tree can be on the hottest of days. The below table outlines the estimated/anticipated benefits of planting trees through 2020. Estimated GHG emission Reductions impact 100,000 tons in 2020, 300,000 tons in 2035

Estimated job gains

Upwards of 500 jobs/year (subject to program scale)

Other cost-saving benefits

Reduced energy costs and fuel imports

Potential resources for pilot programs

Existing utility efficiency programs. Creating a new regulatory authority. Municipal adoption of development ordinances that include incentives for retention and planting

This new policy is rooted in the understanding that when strategically located around buildings, trees can significantly reduce cooling and heating loads. In fact, the Clean Energy and Climate Plan asserts that optimal placement of trees “on the southeast and southwest sides of a building [can] provide shade and reduce air conditioning load. Evergreen trees planted on the north and northwest sides (given prevailing winds in Massachusetts) provide wind breaks and can reduce winter heating needs.” Tree retention and planting yields aesthetic benefits and achieves significant emissions reductions, encourages local job growth and contributes to reduced energy costs and fuel imports. Conservation Commissions can be vocal and active in municipal planning and procedures for tree siting, species selection and ongoing tree maintenance, especially on municipally owned lands, especially in towns that have a tree warden or a tree committee. Next Steps - Plan Implementation Actions required for implementation vary between policies stated under the Massachusetts Clean Energy and (Massachusetts Clean Energy....continued on page 16)

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(Continued from page 15, Massachusetts Clean Energy....)

Join Us at the Climate Plan. Some can be achieved through multiple courses of action. Building energy rating and labeling for example, can be incorporated into the existing code governed by the independent Board of Building Regulation and Standards, or related requirements can be pushed through legislation. Still other measures may be implemented through Executive Order (i.e. sustainable development principles) and codified through legislation (i.e. an expanded smart growth package). No matter the course of action, if Massachusetts is to achieve the emissions reductions targets mandated by the GWSA, full implementation of all the measures outlined in the plan and adoption of many not contained therein is imperative. Presently, EOEEA is developing an agenda that will help reach the 25 percent limit by 2020. Separately, several pieces of legislation aimed at achieving source reductions have been filed this session, including a transition to a coal free economy that implies increased investment in renewable energy and expanding energy eff i c i e n c y programs. Other approaches include zoning reform that would help communities plan and develop in ways that promote more walk-able neighborhoods, support for more efficient vehicles and more funding dedicated to transit alternatives. The release of Massachusetts Clean Energy and Climate Plan for 2020 and the Patrick Administration's commitment to reduce emissions represent a significant step in the right direction; proof that the state is committed to tackling one of the most important issues of our time. But it is only the beginning. It provides a blueprint, an exciting starting point from which to move forward on a path towards a cleaner, healthier more sustainable future.

AMWS/MACC NETWORKING EVENT April 25, 2011 Buca di Beppo Restaurant Shrewsbury Courtesy of Oxbow Associates

A relaxing evening of appetizers and social networking. The MACC Networking Group and the AMWS Networking Committee organize opportunities for Conservation Commissioners, agents, and administrators; city, state, and federal regulatory officials, wetland scientists, educators, ecologists, and environmental professionals from all professional backgrounds to: network socially; learn about career advancement; develop a diverse professional skill set; and to share expertise regarding wetlands, natural and biological resources, and open space that can help shape local, state and federal policies, bylaws and regulations.

This event is free.

To find out more about implementation of the Global Warming Solutions Act, or to read the Massachusetts Clean Energy and Climate Plan for 2020, visit the Massachusetts Department of Environmental Protection website. Eugenia Gibbons is the Program Coordinator for the Environmental League of Massachusetts.

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MACC Newsletter

March/April 2011

The Future of North Shore’s Great Marsh By Tim Purinton

Scientists are peering into the future, and the fate of the Great Marsh and other coastal salt marshes is coming into focus. The United States Geological Survey predicts that by 2100, rising sea level - driven primarily by a warming climate - may submerge North Shore's Great Marsh to such an extent that it will more resemble the mud flats and open water of Plum Island Sound than the iconic salt-hay landscape famously painted by Martin Johnson Heade.

So what's at stake if the Great Marsh can't keep up with sea level rise? As a self-described marsh rat, who grew up jumping ditches that crisscross the 20,000 acre marsh and still relishes weekends at a family duck hunting camp on Shad Creek in Rowley, the loss is difficult to fathom. Take the commuter train from Ipswich to Newburyport and the grandeur of the Great Marsh is on full display. The train bisects the heart of the marsh, elevated just a few feet from the grass tips. Through the Lexan windows it is not uncommon to see flocks of birds (greater yellowlegs, snowy egrets, least sandpipers) alight on the marsh surface or to glimpse a lone snowy owl perched on the pitch of a clam shack. Will these species move on or perhaps adapt to

the anticipated changed landscape? Marshes are incredibly nutrient rich, processing and filtering organic material like a fine-tuned, backyard composter - giving back these nutrients to a range of other forms of life. If this enormous energy processor is gone, what will be the ripple effect? Setting aside the profound ecological impacts, there will be other losses; with the potential disappearance of the marsh a distinct cultural landscape disappears, like losing a priceless heirloom. I asked my friend, Geoff Walker, carver of beautiful marsh bird decoys who put it simply: “The Great Marsh holds a person's heart in its hands. It was a gift from my father, Hank Walker, the famous wildlife artist, to me. I have gifted it to my wife and sons, Nathan and Joshua. It's hard to believe that this ritual will be lost forever and a place of such ecological importance will disappear.” The 20,000-acre question is what can people and communities do to help these marshes keep up with rising seas and migrating inland? We are developing and implementing climate change adaptation strategies, but with especially-vulnerable wetlands like the Great Marsh, we may only have a generation or two to make sure we get it right. Note: This article was first published in the Commonwealth of Massachusetts' Great Outdoors Blog found at: http://environment.blog.state.ma.us Tim Purinton is the Acting Director with the Massachusetts Department of Fish and Game’s Division of Ecological Restoration and a MACC Director.

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March/April 2011

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MACC 2011 Environmental Service Awards Presented at the Annual Environmental Conference on March 5 (all photos courtesy of Photographer Norm Eggert)

Conservation Commissioner of the Year

Stewart Kennedy Linda Orel, Stewart Kennedy, Seth Wilkinson

Stewart Kennedy has served on both the Lexington Conservation Commission and Lexington Conservation Stewards since 2003 and is renowned for his role as liaison between these two organizations–helping to keep the Commission up to date on stewardship efforts throughout town and facilitating interactions between different groups. Stewart has amassed an extensive list of achievements as an environmental steward: he has coordinated several volunteer projects, ranging from invasive species removal to storm drain marking. He also conducts public outreach to local organizations, advocates for bike-friendly amenities in town, raises funds for environmental stewardship and participates in resource monitoring projects. Stewart was a key leader in launching a new Watershed Stewardship Program–working closely with the town Department of Public Works engineers. Stewart completed both the MACC Fundamentals and Advanced Certificate Training programs.

Outstanding Achievement in Community Conservation

Patricia Loring Linda Orel, Patricia Loring, Seth Wilkinson

Pat Loring is no stranger to the work of community conservation; she's done it all from being a long-serving Conservation Commissioner to spearheading land acquisition projects. Pat served as a MACC Director, assisting MACC early on with developing MACC's first training program for Commissioners. Pat is highly committed to land acquisition and preservation efforts–leading land acquisition campaigns, negotiating and finalizing easements and conservation restrictions (19 total), taking a leadership role producing two Open Space and Recreation Plans, maintaining trails and coordinating other projects. Pat's knowledge of land acquisition has allowed the Town of Duxbury to acquire significant and strategic parcels, including her extraordinary efforts to protect the historic O'Neil Dairy Farm. She has served both as Chair and member of the Duxbury Open Space and Recreation Committee since 1996. Pat was instrumental in passing the Community Preservation Act in Duxbury and also serves on the Community Preservation Committee.

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MACC Newsletter

March/April 2011

Long Time Service

Edward Clancy Linda Orel, Edward Clancy, Seth Wilkinson

Ed Clancy has served the City of Marlborough for over 43 years. His tenure on the Marlboro Conservation Commission began in 1968, and he has served as the Chair of the Commission since 1993. Ed's public service also includes working as a biology teacher and a City Councilman. Ed has reviewed more than 1,500 wetland permits and has participated in several appeals of Order of Conditions. In all, the Conservation Commission estimates that he has dedicated over 5,160 hours of volunteer time tending to the Commission's work and its meetings. Other noteworthy achievements include: successfully advocating for the Water Supply Protection District Ordinance and the Stormwater Ordinance as a City Counselor, and serving as a working member of two Open Space and Recreation Plan Committees.

Outstanding Public Service

DEP Circuit Rider Program Christine Odiaga Pamela Merrill Alice Smith Mark Stinson Left to right: Mark Stinson, Christine Odiaga, Alice Smith, Pamela Merrill

Since the Circuit Rider Program's inception in 1996, MassDEP's Wetland Circuit Riders have served the Conservation Commissions and citizens of Massachusetts to strengthen their ability to better protect wetlands. The Circuit Riders are known for their dedication, enthusiasm and effectiveness in providing service and assistance to Conservation Commissions. Despite economic downturns and the recent loss of three regional Circuit Riders in the past two years, the remaining staff has continued to work hard to provide Commissions and others with the essential help they need. This past year they have offered 50 training sessions on wetland topics; attended 100 Conservation Commission meetings, and they have responded to over 9,000 e-mail requests for information–all of which improve the quality of permit submissions and regulation clarification.

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March/April 2011

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MACC Honors Stuart DeBard, MACC Founder, with Nancy Anderson Award Accepting award, DeBard’s daughter Ellen Debard Adle & Parvis Adle

MACC is extremely pleased to have bestowed upon Mr. Davis “Stuart” DeBard (posthumously) our most prestigious honor, the Nancy Anderson Award for his leadership, vision, dedication and lifelong commitment to community conservation at the Annual Environmental Conference in March. At a time when the concept of Conservation Commissions was only four years old and the great majority of towns did not have one, Stuart and other visionaries saw the need for an organization dedicated to supporting Conservation Commissioners. Stuart helped found MACC in 1961 and served as its first President. He also authored the first Massachusetts Conservation Commission Handbook, now titled the Environmental Handbook for Massachusetts Conservation Commissioners currently in its ninth edition. On our Golden Anniversary, MACC can imagine no one more suitable to receive this award than Stuart DeBard. Stuart was a dedicated conservationist and a pacesetter; his life was filled with public service. As a member of the Hingham Planning Board, he sponsored an article at the 1959 Special Town Meeting to create Hingham's Conservation Commission. He was its Charter Member and continued to serve for twenty years, three of those as Chair. After battling to save salt marshes, he pioneered the concept of privately held conservation easements (known in Massachusetts as conservation restrictions), giving speeches starting in 1949 around the United States and drafting several easements as an attorney. Stuart served for 10 years as President of the Hingham Land Conservation Trust and brokered several land protection deals, including the acquisition of Wampatuck State Park and several other stellar land conservation holdings involving state and private financing. From 1960-1994, Stuart was Executive Secretary of the Massachusetts Association of Town Finance Committees where he regularly authored the Finance Committee Handbook for ATFC, still a key publication today. He also served for a time as President of the Boston Junior Chamber of Commerce, and helped found and then served as Vice President for over 40 years of the World Affairs Council of Boston. He did all this while running a thriving law practice for the Boston firm of Weston Patrick P.A. Stuart had a delightful and fun personality. He could juggle oranges and ride a unicycle, and told wonderful stories. He was an avid dancer, skier, painter, traveler, and sailor and never missed an opportunity to march with the Hingham Militia, carrying his musket and dressed as a Continental Army Minute Man. He graduated from Harvard College in 1936 and from Harvard Law School in 1939. After serving in World War II as a Commanding Officer aboard the Destroyer Escort, he moved to Hingham. Stuart passed away in October 2010 at age 95, and is survived by his wife, children, step children and grandchildren. About the Nancy Anderson Award The Nancy Anderson Award is MACC's most prestigious award. It is given to honor an environmental leader best exemplifying the former MACC President, Nancy Anderson, and is presented in her memory. The Anderson Award is given only at times the Board of Directors identifies a person with success in sustained environmental leadership, staying power, creative thinking, fairness to all, love of our planet and a moral certainty in the goodness of all things great and small. We were pleased to be able to provide this Award for only the second time in MACC's history to Mr. Davis Stuart DeBard. 2020

MACC MACCNewsletter Newsletter

March/April March/April2011 2011

Outrageous Excuses for Erosion and Sediment Control Failure Presented at the 2011 MACC Annual Environmental Conference

Photo Courtesy of Brandon Faneuf

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

What’s the big deal? Wetlands like sediment. They didn’t predict that much rain. Beavers ate all of our stakes. My supplier ran out of haybales. Hoped the Japanese Knotweed would stop the erosion. Construction sites are supposed to be dirty. Thought state projects were exempt. So what? The damage is only temporary. Didn’t know my contractors had even started working. With climate change, everything’s going to be eroded anyway.

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(Continued from page 11, Compensatory Mitigation....)

Permittee-responsible mitigation with a site selected using a watershed/ecosystem level approach, 4) Permitteeresponsible mitigation on-site with in-kind aquatic resource type restoration, creation, enhancement, preservation, and, 5) Permittee-responsible mitigation onsite but out-of-kind. • Site selection should consider habitat diversity, connectivity, land use trends and compatibility with adjacent uses. • Preservation-only mitigation is appropriate in some circumstances. • Including buffers in mitigation projects is important. • Use of two mitigation sites may be appropriate to ensure functions are provided in appropriate settings, e.g., flood storage should be proximate to the impact but habitat should be provided where it is sustainable. • Deed restrictions with no third-party involvement are to be avoided in most cases; conservation easements/restrictions with a third party responsible for long-term stewardship are preferable. • There is a need to have greater than 1:1 impact-tomitigation area ratios to address temporal losses, uncertainty, risk and difficulty. How does this affect mitigation in Massachusetts? 1. The New England District is requiring mitigation for many small (5,000 square feet to one acre) projects from the federal perspective. 2. The New England District is requiring mitigation for secondary/indirect impacts on aquatic resources (e.g., loss of critical terrestrial habitat for vernal pools, fragmentation of aquatic resources and conversion of aquatic resources from one type to another by removal of vegetation once jurisdiction has been triggered through the discharge of fill in inland waters).

4. If mitigation banking or an ILF program is established in the state, applicants for small impact projects, especially, are likely to be directed to them by the Corps to increase the likelihood of replacement of lost functions. In many parts of the country, including New Hampshire, Maine and Vermont, there are alternatives to permitteeresponsible mitigation such as mitigation banks and/or ILF programs. There is actually a small ILF program for Essential Fish Habitat (designated by the National Marine Fishery Service) run by the Department of Marine Fisheries in Massachusetts. The banks and ILFs are handled by third-parties and result from the pooling of impacts so larg e r, more sustainable restoration, enhancement and/or preservation projects can be accomplished within watersheds or other bioregions. The Corps is actively encouraging potential bank or ILF sponsors to explore the potential for establishing thirdparty mitigation in Massachusetts so that especially smaller projects will have an option for addressing mitigation requirements without having to acquire, design, construct, monitor and steward the work themselves. The costs would be approximately what it would cost permittees to construct mitigation themselves. This article is to help Conservation Commissions understand the background if they hear that the Corps is requiring different mitigation than they are requiring. Whenever possible, the Corps would like to coordinate with Commissions and see if there is a way for applicants to satisfy the needs of both the Commission and Corps without having two completely different mitigation packages. Any opinions expressed in this article are the opinions of the author and should not be construed as the position of the US Army Corps of Engineers including the New England District. Ruth Ladd is the Chief, Policy Analysis and Technical Support Branch Regulatory Division at the New England District Corps of Engineers and can be re a ched at 978.318.8818 or [email protected].

3. The Mitigation Rule often precludes Corps acceptance of the Conservation Commission-required replication for all lost functions, although on-site mitigation for flood storage and some water quality functions is usually acceptable. If the replication involves loss of healthy upland, the Corps may not be able to accept any of it.

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MACC Newsletter

March/April 2011

THANK YOU TO MACC’S 2011 ANNUAL ENVIRONMENTAL CONFERENCE SPONSORS!!

CONGRATULATIONS Fundamentals for Conservation Commissioners Graduates!!!

GOLD SPONSORS NSTAR National Grid SILVER SPONSOR McGregor and Associates, P.C. BRONZE SPONSORS BSC Group, Inc. LEC Environmental Consultants, Inc. Murtha Cullina, LLP New England Environmental, Inc. Wilkinson Ecological Design, Inc.

MACC Newsletter

March/April 2011

Gretchen Carey Chris Fallon Gail Feldman Sarah Flynn Russell Gregory, Jr. Irwin Hendricken Elizabeth Kelley Brian Marques Amy Maxner Tom Sakshaug Joseph Teixeira Greg Young

Burlington Westwood Braintree Pittsfield Southborough Baldwinville Warren Taunton Danvers Pittsfield Newburyport Northborough

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Massachusetts Association of Conservation Commissions 10 Juniper Road Belmont, MA 02478 617.489.3930 www.maccweb.org

Non-profit Organization U.S. POSTAGE PAID Belmont, MA 02478 Permit No. 56583

CALENDAR April 8, 2011. Soil Erosion and Sediment Control. S. Egremont Fire Station, Egremont. See page 12 for details and page 14 for registration.

April 30, 2011. Soil Erosion and Sediment Control. Senior Center, Wellfleet. See page 12 for details and page 14 for registration.

April 9, 2011. Fundamentals for Conservation Commissioners Units 5 & 6. Middleborough Town Hall. See page 12 and page 14 for registration.

May 7, 2011. Soil Erosion and Sediment Control. Sturbridge Town Hall. See page 12 for details and page 14 for registration.

April 16, 2011. Soil Erosion and Sediment Control. Wrentham Public Safety Building, Wrentham. See page 12 for details and page 14 for registration.

May 7, 2011. “Beyond Beginners” We t l a n d Delineation Workshop. Marion Town House, Marion. See page 13 for details and page 14 for registration.

April 16, 2011. Fundamentals for Conservation Commissioners Units 2 & 4. Middleborough Town Hall. See page 12 and page 14 for registration.

May 21, 2011. Basic Wetland Delineation: Soils. Marion Town House, Marion. See page 13 for details and page 14 for registration.

April 23, 2011. Soil Erosion and Sediment Control. Stevens Memorial Library, Ashburnham. See page 12 for details and page 14 for registration.

June 11, 2011. Basic Wetland Delineation: Vegetation. Marion Town House, Marion. See page 13 for details and page 14 for registration.

April 30, 2011. Fundamentals for Conservation Commissioners Units 7 & 8. Middleborough Town Hall. See page 12 and page 14 for registration.

MACC is a Member of Earth Share of New England and the Massachusetts Environmental Collaborative.

MACC is a private non-profit service corporation. Our voting members are the Conservation Commissions of Massachusetts. Nonvoting memberships are available to others interested in community resource protection and include receipt of this newsletter. MACC welcomes letters, articles, drawings and photographs from readers, but reserves the right to edit or reject submissions. Non-staff articles do not necessarily represent the opinions of MACC. Reproduction in whole or in part is permitted with proper credit. For advertising rates and membership information call MACC at 617.489.3930.