Massachusetts Association of Conservation Commissions

1. Writing an Effective Order of Conditions& Ensuring ComplianceFundamentals for Conservation CommissionersTraining ProgramUnit 6 Massachusetts Association of Conservation Commissions Creation of this Unit was funded in part with a grant from the Massachusetts Environmental Trust Prepared with the assistance of Priscilla Ryder & Michele Grzenda, Marlborough & Framingham Conservation Agents

2. Today’s Schedule A. Brief overview of Notice of Intent Review B. Drafting an Order of Conditions C. Permit Issuance and Appeals D. Ensuring Compliance of OOC E. Amendments/Extensions F. After Construction

3. Con Com Permitting Process • File: Most proposed work within 100 feet of a wetland or 200 feet of a perennial stream, requires the filing of a “Notice of Intent” (NOI) or “Request for Determination of Applicability” (RDA). • Hearing: The Commission schedules a public hearing • Review: Before and during the hearing, the Commission and its agents spend a lot of time reviewing the details of the project. • Permit: If the Commission determines that the project will not impact the functions and values of the wetland resource areas and the project has met all the performance standards of the wetland regulations, the Commission issues an Order of Conditions or Negative Determination of Applicability (permit).

4. A. The Notice of Intent Review Process Accepting the Notice of Intent • Make sure required number of NOI copies have been submitted to Commission & DEP • USGS Map (or other suitable locus map) • Site Plan (s) • BVW field data forms • Stormwater Mngt Form? • Check abutter notification • Check filing fee • Local Wetlands Bylaw Form?

5. The Notice of Intent Review Process Ensure NOI Application is Complete • Is work proposed in Resource Areas (RA)? • Ensure appropriate RA boxes are checked off • Has applicant included narrative describing how project meets performance standards for work in resource area? • Is work proposed in Riverfront Area? • Check for required notifications (e.g. NHESP)

6. The Notice of Intent Review Process • Schedule Public Hearing within ___ days of receipt • 21 days • Advertise in newspaper ____ days before Hearing • 5 business days

7. Public Hearings & Meetings • Make sure there is a Quorum • Open hearing and set time limit • Describe Review process to the public • Request proof that abutters have been notified • Typically applicant makes presentation • Con Com Members ask questions • Chair allows public comments (related to wetland issues).

8. What resource areas are present on site? What work is being proposed? How will work affect resource areas? Is work allowable per performance standards? What evidence has been presented? What alternatives exist? Phasing/sequencing Replication/ mitigation? Erosion controls sufficient? Hearing Questions and Discussions

9. Hearing Questions and Discussions When to continue a Hearing? • Commission members request additional information • Plans are unclear or inaccurate • Be sure to summarize at hearing what additional information you are requesting • Commission members wish to conduct site visit • NOTE: Commission must have applicant’s consent to continue a hearing, in most cases*

10. Importance of Site Visits • Determine presence of resource areas • Verify wetland boundaries • Verify staked locations of activity • Consider relevant aspects or features • Identify problems and potential solutions

11. Hearing Questions and Discussions • Document receipt of additional information during the hearing • Commission may vote to close the hearing if sufficient information has been submitted to determine whether the project can be conditioned to: • Meet the performance standards of the regulations • Protect the interests of the Act

12. Decisions and Permit Issuance • After hearing Commission has 21 days to issue an Order of Conditions • During deliberations the Commission should: • Discuss the interests of Act and Bylaw project is significant to • Confirm what work (alteration) being allowed and what mitigation/replication (if any) is required • Discuss specific conditions that should be imposed to protect the interests of the Act

13. B. Drafting an Effective Order of Conditions • Approval • Meets performance standards • Ability to protect Interests of the Act • Denials • Don’t include any conditions • Write “Denial” before “Order of Conditions” at top of each page

14. Drafting an Effective Order of Conditions Findings of Fact: • Description of Scope of Approved Project • List approved plans and documents • Site /Project History • Define specific resource areas affected by proposed work (BVW, bank, etc.) • Describe how project meets applicable performance standards • Clearly describe project’s ability to protect the interests of the Act

15. Drafting an Effective Order of Conditions • Properly drafted Order of Conditions both guide the applicant and give the Commission a standard to enforce if the required measures fail. • General Conditions (1-18) • Special Conditions added by Commission

16. Drafting an Effective Order of Conditions Special Conditions • General Condition • Special Circumstances • Pre-construction • During Construction • Post-Construction/ Conditions in Perpetuity • MACC’s list of Special Conditions: http://www.maccweb.org/resources_templates

17. Drafting an Effective Order of Conditions • General Conditions • Violation of any of these conditions may result in fines (local bylaw) • Document shall be included in all construction contracts • Plans and OOC shall be available at the project site at all times • Commission reserves the right to require additional conditions if deemed necessary • This Order shall only pertain to…. • prohibits work in….

18. Drafting an Effective Order of Conditions Consider seasonal concerns (conducting work in dry vs. wet months

19. Drafting an Effective Order of Conditions Special Circumstances • Replications • Specify size and location of approved replication • Performed in accordance with approved (plan) • Wetland Specialist shall be retained by the Applicant to supervise construction and monitor progress • Details of Installation? • Following Installation (seasonal monitoring reports, weeding program, compliance with meeting the 75% re-vegetation requirement)

20. Drafting an Effective Order of Conditions Special Circumstances, Cont. • Stormwater Management • All stormwater mngt. shall be conducted in accordance with (list plans titles and dates) • New Development • Constructed after initial site clearing to allow for capture and control of site runoff during construction

21. Drafting an Effective Order of Conditions Special Circumstances, Cont. • Stormwater Management • Redevelopment • Protect Catch basins • Maintained as specified in the O & M Plan • Annual maintenance rpt shall be submitted to the Con Com (during construction and in perpetuity?)

22. Drafting an Effective Order of Conditions Prior to Construction • Pre-construction meeting • Applicant, Contractor, erosion control monitor • Minimal disturbance of vegetation may be allowed prior to Pre-construction meeting in order to install erosion controls. \ • Review OOC • Discuss sequencing, construction phasing, etc. • Submittal of a sequencing plan for construction and implementation of erosion control measures

23. Drafting an Effective Order of Conditions During Construction Conditions • Applicant to contact Con Com if unforeseen problem occur • Applicant shall designate and Environmental Monitor/Erosion Control Monitor to: • Inspect Erosion controls weekly or after rain events of .5 inches or greater • Advise on erosion control practices • Ensure adherence to the OOC • Be present during *** • Provide weekly/monthly updates to the Commission

24. Drafting an Effective Order of Conditions During Construction Conditions, Cont. • Phasing and Construction sequence shall comply with approved plans and documents • If dewatering proves to be necessary, a dewatering plan shall be submitted to the Con Com for review and approval

25. Drafting an Effective Order of Conditions During Construction Conditions, Cont. • No alterations beyond installed siltation barrier during or after construction shall be permitted • Temporary/permanent stabilization of exposed soils

26. Drafting an Effective Order of Conditions Post-Construction • Within ** days of completion of project, all disturbed areas shall be permanently stabilized… • Remove and properly dispose of all erosion controls • Upon final stabilization, the Applicant shall request a Cert. of Compliance

27. Drafting an Effective Order of Conditions Conditions inPerpetuity • Maintenance of stormwater mngt structures are the responsibility of… • No sodium chloride shall be used within 100 feet of … (vernal pool) • Continued maintenance of *** area, in a manner that assures permanent stabilization shall be the responsibility of the Owner/Assign

28. C. Permit Issuance and Appeals • Be careful; it’s a legal document • Check off all relevant boxes • Check off approval vs denial Check correct boxes • Sign Order • Issue date is date hand delivered or mailed (not signed) • Notarize order • The file is a public record • Keep well-organized and labeled files. • If appealed, critical to have accurate and complete record. Particularly true for Bylaw appeals; Certiorari limited to public record

29. Local Orders of Conditions and Wetlands Protection Act Orders • Separate appeal mechanisms (DEP vs Superior Court) • Legally separate, though normally issued at same time • Must clearly differentiate what parts pertain to the WPA versus Bylaw • Best to issue two separate documents

30. Appeals – Wetlands Protection Act • WPA appeals: To DEP, within 10 business days of issuance. Tell applicants about appeal period at hearing – decreases number of projects that start before appeal period has elapsed • DEP can overturn Commission’s Order, Remand it back to Commission, or affirm the Order

31. Appeals - Bylaw • Bylaw appeals: Certiorari, Superior Court within 60 days • A clear well written Order is most likely to be upheld as the Judge is constrained to review of the public record only

32. D. Ensuring Compliance • Recording: Applicant must record your Order of Conditions with the Registry of Deeds. • Sign: Applicant must display a 2’ x 2’ sign with your DEP file number. • Sedimentation and Erosion (S&E) Control: Applicant must properly install sedimentation and erosion control in the appropriate locations. • Pre-construction site visit: Contact Conservation Commission

33. Ensuring Compliance: Pre-construction site visit Present: Applicant, Contractor, Erosion Control Monitor, Con Com • Review Order of Conditions • Review construction sequencing/schedule • Check on DEP File # sign • Inspect Erosion Control • Confirm Limit of Work • Is permit recorded? • Schedule follow-up visit?

34. Ensuring Compliance: Erosion Controls • The Good: • Staked straw wattles and staked/entrenched filter fabric • Silt sacks • Hay bales

35. S&E Maintenance: It is your responsibility to maintain your sedimentation and erosion control in good working order. • General Permit Compliance: Fines may be issued if: • Work is not done according to the approved plans or conditions – CALL US BEFORE YOU MAKE CHANGES. • Work of any sort occurs beyond the sedimentation and erosion control boundary (e.g., dumping, grading, cutting, or construction). • Damage to the wetland or buffer zone occurs as a result of failure of your sedimentation and erosion control.

37. Ensuring Compliance: Erosion Controls • The Ugly: • Improper installation • Inadequate maintenance

39. Unprotected Catch Basins

40. Ensuring Compliance: Construction Monitoring

41. Ensuring Compliance: Construction Monitoring Case Example: Doeskin Water Betterment, Framingham, MA • April 2004

42. Ensuring Compliance: Construction Monitoring • July 2004

43. September 2004 Ensuring Compliance: Construction Monitoring

44. Ensuring Compliance: Construction Monitoring • September 2004

45. Ensuring Compliance: Construction Monitoring • October 2004

46. October 2004 May 2006

47. Ensuring Compliance: Construction Monitoring Buffer Zone Plantings

48. Ensuring Compliance: Construction Monitoring Wetland Replication

49. E. Amendments (DWW Policy 85-4) • Minor vs. Major amendments • Discretionary • Only for same or less impact to resource areas. Increased impact, new NOI • Effective date of Order remains unchanged • Cannot amend expired Order • Must advertise in newspaper and notify abutters just like NOI

50. E. Extensions Con Com may grant an extension one or more times for periods of up to three years. • Requests 30 days before expiration. • Once expires, cannot be extended. • Extension is discretionary. • Con Com can deny if: • No work has begun, except if there were unavoidable delays • New information indicates the Interests of the WPA are not being protected • Incomplete work has led to damage to a Resource Area • There is a violation of the OOC • Regulations have been amended and the existing OOC no longer complies