May/June 2009 The Newsletter of the Massachusetts Association of Conservation Commissions Volume XXXIX Number 3 Inside MACC Newsletter: Hard or Federal Court Requires Permits for Electronic Copy? . . . . . . . . . . . . .2 DCS FY10 Grant Round . . . . . . . .2 Pesticide Applications to Wetlands and Without Clearly Defined Performance Waterways - US EPA Decides Not To Appeal Standards, a Local Wetlands Bylaw May be Worthless . . . . . . . . . . . .3 Spring/Summer Programs . .6, 7, 8 By Ken Whittaker, Ph.D., Esq. Spring Networking Reception a Success . . . . . . . . . . . . . . . . .11 Call for Nominees for Annual On January 7, 2009 the Sixth Circuit Court of Appeals in a complex decision Environmental Service Awards .12 rejected a US EPA Final Rule exempting certain pesticide applications from Job Posting . . . . . . . . . . . . . . . . .12 requirements for permitting under the Federal Clean Water Act (see decision at Congratulations Graduates . . . . .13 Call for Workshop Topics http://www.ca6.uscourts.gov/opinions.pdf/09a0004p-06.pdf). The rule was and Speakers . . . . . . . . . . . . . .15 proposed in November 2007 to implement the Agency’s previous policy of not Calendar . . . . . . . . . . . . . . . . . . .16 requiring National Pollution Discharge Elimination System (NPDES) permits Thanks to AEC Sponsors . . . . . .16 for a variety of pesticide applications to, over or near surface waters under the jurisdiction of Clean Water Act (i.e. “waters of the United States”). A variety How would you like to receive of environmental groups successfully appealed this final rule. The court found your future MACC Newsletters? that the Clean Water Act does in fact require NPDES permits for many applications of pesticides to wetlands or waterways, and that EPA did not have Hard copy? the authority to overrule this legal requirement with a regulatory exemption. Electronic copy? Please see page 2 (Federal Court Requires Permits.... continued on page 9) for more details. 2009 Local Wetlands Bylaws are not Intended to MACC Fall Conference Supersede the Wetlands Protection Act, but S AV E T HE D AT E S ! ! ! to Provide Additional Local Protections Saturday, October 24 Wellesley Hills By Kathleen E. Connolly, Esq. ~~~~~ Saturday, November 7 Northampton A recent decision of the Massachusetts Appeals Court has reinforced the fact that a Conservation Commission cannot deny or condition a project under a MACC is a private non-profit service more stringent local bylaw or ordinance where the proposed project does not corporation. Our voting members are the Conservation Commissions of trigger those more stringent local provisions. While the holding in Healer, et al. Massachusetts. Nonvoting memberships are v. Department of Environmental Protection, et al1., is not precedent-setting, it available to others interested in community provides a helpful interpretation that, while the Wetlands Protection Act (the resource protection and include receipt of this newsletter. MACC welcomes letters, “Act”) does not preempt local regulation, local bylaws are not intended to articles, drawings and photographs from supersede the Act but rather to provide additional local protections appropriate readers, but reserves the right to edit or reject submissions. Non-staff articles do not to the community. necessarily represent the opinions of MACC. Reproduction in whole or in part is permitted The Act is administered and enforced by both the Department of with proper credit. For advertising rates and membership information call MACC at 617.489.3930. (Local Wetlands Bylaws are not Intended.... continued on page 4) MACC Newsletter Massachusetts Association of Conservation Commissions Hard or Electronic Copy? Community Conservation Since 1961 Board of Directors As an MACC Member and recipient of the bimonthly President newsletter, we are asking you for your preference regarding how Sally A. Zielinski, Ph.D. Carlisle you receive it. You can either get the newsletter through the President-Elect mail (hard copy) or in your email box (electronic copy). We are Patrick Garner Northborough happy to deliver it whichever way you prefer, but we need to Past President Gregor I. McGregor, Esq. Concord know your preference. For the next several issues, MACC will Vice President for Education send you the newsletter both ways (if we have your email Amy Ball Sandwich address) so that you can make a comparison. Some of you may Vice President for Advocacy have already expressed a preference, but we are re-starting the Tim Purinton Ipswich process to avoid any confusion. Treasurer Jo-Anne Burdin Templeton Starting with the November/December issue, you will Secretary automatically receive the hard copy UNLESS you tell us Kathleen E. Connolly, Esq. Hopkinton otherwise that you want the electronic copy. If you want to Directors Helen D. Bethell Manchester receive the newsletter ONLY electronically in your e-mail box, Margaret Carroll Upton please email firstname.lastname@example.org and give us your Lorraine DeSouza Ashburnham Shepley Evans Stockbridge choice. For any questions, call Lindsay at 617.489.3930. Dave Gorden Dedham Michele Grzenda Lincoln THANKS! Scott Jackson Whately Francesca Maltese Amherst Michael Marcus Amherst Stephen McKenna Brewster Ross Povenmire, Esq. Haverhill E. Heidi Ricci Seth Wilkinson Shirley Orleans Division of Conservation Services (DCS) Kenneth F. Whittaker, Ph.D., Esq. Wenham Nancy Yeatts Lakeville Fiscal Year 2010 Grant Round Board of Advisors Announcement Bernie McHugh Edward O. Wilson Brian Rehrig George Wilslocki The FY 2010 grant round for Parkland Acquisitions and President’s Council Alexandra Dawson, J.D. Renovations for Communities grant (PARC) and Local Acquisitions Judith Eiseman for Natural Diversity grant (LAND) is now open. PARC grants George Hall, Esq. provide municipalities with funding for parkland acquisition, Ingeborg Hegemann development of parks, and renovations of existing parks. LAND Executive Director grants provide municipalities with funding for conservation land Linda Mack acquisition. The grants will be due on July 15, 2009. Please attend Education Coordinator a “How to” grant workshop on Thursday, May 21, 2009 at 10:00 am Michèle Girard in the 2nd floor conference room at 100 Cambridge Street, Boston. Newsletter Editor Visit DCS’s website at www.mass.gov /eea/dcs for the grant Membership & Publications Coordinator Lindsay Martucci application package and fillable pdf application form. Technology Coordinator Database Administrator The FY 2010 grant round for the Conservation Partnership grant Rick Chaff program is now open. Conservation Partnership grants provide Bookkeeper funding assistance to land trusts and other non-profits whose primary Candace Domos purpose is land conservation for the acquisition of conservation land MACC Office or Conservation Restrictions. The grants are due July 13, 2009. See 10 Juniper Road, Belmont, MA 02478 the DCS website for more information and the application package: Phone 617.489.3930 • Fax 617.489.3935 www.mass.gov/eea/dcs. www.maccweb.org 2 MACC Newsletter May/June 2009 Without Clearly Defined Performance Standards, a Local Wetlands Ordinance or Bylaw May be Worthless By Luke H. Legere, Esq. The Massachusetts Appeals Court’s decision in Tremont inner thirty-five-foot Buffer Zone will alter the adjacent Redevelopment Corporation v. Conservation Commission Resource Area. Isolated freshwater wetlands are not of Westwood, 73 Mass. App. Ct. 1127 (2009), provides protected by the Act, nor does the presumed alteration for guidance for municipalities concerned about the limits of work within thirty-five feet exist under the Act. Home Rule for local wetland protection ordinances or bylaws. The Court applied the Home Rule Doctrine in The Appeals Court rejected the Commission’s light of several prior decisions1 and ruled that the argument that simply listing isolated freshwater wetlands Westwood Conservation Commission’s disapproval of a as a protected Resource Area made its bylaw stricter than project under its Wetlands Protection Bylaw was invalid2. the Act, because the bylaw itself lacked standards to guide the Commission in weighing a project’s impacts on that Specifically, the Appeals Court ruled that while Resource Area. The Court, for the same reason, rejected municipalities may enact Home Rule ordinances or bylaws the position that the presumed alteration for work within stricter than the state Wetlands Protection Act (the “Act”), thirty-five feet of a Resource Area made the bylaw stricter such local controls must include a clear set of performance than the Act, and added that the bylaw provided no standards that can be objectively applied to projects that “guidelines” to instruct either an applicant or the come before a Conservation Commission. Commission as to what was necessary to overcome this presumption. In Tremont Redevelopment, the Westwood Conservation Commission issued a denial under its bylaw because the The Court stressed the Commission’s failure to project proposed work within thirty-five feet of isolated promulgate implementing regulations with any freshwater wetlands, a locally protected Resource Area. Westwood’s bylaw creates a presumption that work in the (Without Clearly Defined Performance.... continued on page 14) MACC Newsletter May/June 2009 3 (Continued from page 1, Local Wetlands Bylaws are not Intended....) vernal pool. The Commission approved the project under both Environmental Protection ("DEP") and the local the Act and the Falmouth Conservation Commission. Decisions made under the wetlands bylaw, but not under Act may be appealed to DEP. Local bylaws and any provisions of the local ordinances are administered and enforced only by the bylaw more stringent than local commission, not by DEP, and must be appealed in those in the Act. The superior court. The Act and its regulations impose only Commission determined that minimum state-wide standards for wetlands protection, the project was permissible under both laws and that the leaving municipalities free to adopt more stringent project would add to the overall improvement of the controls.2 general area, as provided under the bylaw. Plaintiffs who proposed construction of the treatment and the leaching In Healer, the Appeals Court found that, although a field discharge appealed the decision (related to approval town's wetlands bylaw was more stringent than the Act, under the Act) to DEP and to superior court for the the DEP had jurisdiction to review the Falmouth approval under the authority of the local bylaw. Conservation Commission's application of the Act to a proposed project even though the Commission approved In response to the appeal, the DEP issued a the project under both the bylaw and the Act. Superseding Order of Conditions (SOC) approving the construction of the sewer line (separately, there was a The proposal in Healer was a Town project to construct Request for Determination of Applicability (RDA) for a sewer collection and treatment system which would which DEP issued a Superseding Determination of collect sewer effluent from 210 homes in the New Silver Applicability (SDA) for construction of the treatment Beach section of Falmouth, transport it to a treatment facility itself, which decision was upheld by DEP on facility, and discharge it into an adjacent leaching field. appeal). Plaintiffs then appealed DEP's Final Decision to The plaintiffs argued that the treatment facility and superior court pursuant to G.L. c. 30A, § 14(7), the leaching field would be located in close proximity to a administrative review statute, and the superior court 4 MACC Newsletter May/June 2009 Judge ruled that DEP could not issue an SOC because the or adding more restrictive provisions to an existing Bylaw was more stringent, thus DEP did not have bylaw, there are several substantive areas of local jurisdiction over the project and any review of the DEP’s regulation the commission should consider. decision by the superior court was moot. In a subsequent appeal by the original Plaintiffs, the Appeals Court found 1. Include specific definitions for the additional that the superior court judge failed to note that the project resource areas and interests: if the intent is to make the did not trigger those more stringent provisions. While the Buffer Zone or vernal pools additional protected resource bylaw did, indeed, contain more stringent provisions than areas, the bylaw should include a definition for "Buffer the Act, none of those more stringent provisions applied Zone" and “vernal pool,” and could have more stringent to the project. Thus, the Appeals Court found that DEP performance standards or prohibited activities within did have jurisdiction to review the Commission's wetlands. application of the Act to the proposed project, and 2. Include additional Resource Values or interests remanded the case to superior court for reconsideration. of the Resource Areas. As noted in the MACC Model The Healer decision reinforces the concept that a Bylaw, these additional values may include, for example, wetlands bylaw or ordinance must be both reasonable in erosion and sedimentation control, rare plant and animal scope and reasonably applied to a particular proposed species habitat, agriculture, recreation, and aesthetics, project or activity in order for the decision to withstand etc. Commission decisions should show that they were legal challenge. For example, if the local bylaw or made on a case-by-case basis. Decisions should show a ordinance regulates the Buffer Zone as an additional reasonable relationship between the proposed project and protected resource area, but the proposal will not have any potential harm to the protected interest within the any impact on the Buffer Zone, the decision should steer protected resource area3. clear of any findings that relate to the Buffer Zone that 3. Require an applicant to meet a higher burden of goes beyond the jurisdiction provided by the Act proof. Under the Act, an applicant has the "burden of regarding Buffer Zones demonstrating" that the proposed work will contribute to If your commission is currently considering adopting (Local Wetlands Bylaws are not Intended....continued on page 10) MACC Newsletter May/June 2009 5 Spring/Summer 2009 Educational Offerings (Registration also available online - http://www.maccweb.org/edu_workshops.html) Valuable MACC educational programs are available to you this spring and summer. See Registration Form on page 8. Cape Fundamentals for Conservation Commissioners Series MACC Members $45 (per unit) • Non-members $60 Brewster Ladies Library • 1822 Main Street • Brewster, MA 02631 Friday, May 29 (check-in at 8:30 a.m.) 9:00 - 11:30 a.m. Unit 1 ~ Overview of Conservation Commissions 12:30 - 3:00 p.m. Unit 3 ~ Fundamentals of the Wetlands Protection Act Saturday, May 30 (check-in at 8:30 a.m.) 9:00 - 11:30 a.m. Unit 2 ~ Getting Home before Midnight: How to Run an Effective Meeting 12:30 - 3:30 p.m. Unit 4 ~ Plan Review and Site Visit Procedures (note longer class time) Basic Wetland Delineation Workshops with John Rockwell 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 will 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 30 Saturday, June 13 (Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m. (Check-in: 8:00 a.m.) Class: 8:30 a.m.-4:00 p.m. Marion Town House, Marion Marion Town House, Marion MACC Members $90 • Non-members $105 MACC Members $90 • Non-members $105 Focus is on hydric soils, indicators of wetland Focus is on wetland vegetation and understanding hydrology and understanding the DEP BVW the DEP BVW Delineation Field Data Form: Section Delineation Field Data form: Section II. Indicators I. Vegetation. (limit 15) (2.0 Advanced Credits) of Hydrology (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. 6 MACC Newsletter May/June 2009 Soil Science - Field Skills Workshop and Hydric Soils Workshop ~ Field Identification, Documentation and Delineation Peter Fletcher's and Gillian Davies' soils workshops are considered perennial favorites by attendees and work very well as a set. The Soil Science-Field Skills Workshop is designed for Conservation Commissioners and others seeking a rigorous, one-day introduction to or review of soil science. The Hydric Soils Workshop builds upon the material covered in the Field Skills Workshop. MACC encourages those new to soil science to attend the Field Skills Workshop prior to attending the Hydric Soils Workshop to maximize their educational experience. Soil Science - Field Skills Workshop Hydric Soils Workshop Field Identification, Thursday, July 16 Documentation and Delineation (Check-in: 8:30 a.m.) Class: 9:00 a.m.-4:00 p.m. Great Meadows National Wildlife Refuge, Sudbury Thursday, July 30 (Check-in: 8:30 a.m.) Class: 9:00 a.m.-4:00 p.m. MACC Members $90 • Non-members $105 Garden in the Woods, Framingham MACC Members $90 • Non-members $105 Combination: lecture, slides, overhead transparencies, hands-on exercises, field exercise. Combination: lecture, slides, overhead Topics: Soils of Massachusetts; Geological Past and transparencies, hands-on exercises, and field its Influence on Our Soils; Soil Texture - Percent exercise. Topics: Upland Soils vs. Wetland Soils and Sand, Silt, and Clay; Soil Color; Describing a Soil Soil Features Associated with Wetlands. Several Profile; Estimating Depth to Seasonal High Water sites will be visited that have varied wetland and Table. The afternoon field trip- work in small groups soil conditions. Participants will work in small and describe different soil test pits in the field which groups and delineate the hydric soil boundary using will cover a broad range of soil features. Instructor the State DEP Methodology. Field equipment will be will provide the field equipment needed for this provided. Bring a bag lunch. (limit 25) (2.0 e x e rcise. Bring a bag lunch. (limit 25) (2.0 Advanced Credits) Advanced Credits) MACC Newsletter May/June 2009 7 MACC Spring/Summer 2009 Registration Name ___________________________________Commission/Organization_____________________________ Address ______________________________City/State/Zip _________________________ Work ❑ Home ❑ Phone Work: (____)____________ Home: (____)____________ E-mail ______________________________ Please include payment and mail to: MACC, 10 Juniper Rd., Belmont, MA 02478. Member fee applies to Conservation Commissioners and staff when Commission’s dues are paid and other MACC members. Non-members may receive member rate by joining MACC. Call for details –617.489.3930. Cancellation must be received in writing (mail, fax, e-mail) at least 2 business days prior to a session. No refund or credit for less than 2 days notice. Credit may be applied to future programs. A $10 processing fee will be deducted. Fundamentals for Conservation Commissioners (MACC Members $45 per Unit; Non-members $60) Friday • May 29 • Brewster Ladies Library, Brewster Morning: Unit 1 ______ (c0357) Afternoon: Unit 3 ______ (c0359) $ ______ Saturday • May 30 • Brewster Ladies Library, Brewster Morning: Unit 2 ______ (c0358) Afternoon: Unit 4 ______ (c0360) $ ______ Workshops Basic Wetland Delineation: Soils (c0354) (MACC Members $90, Non-members $105) (2.0 Advanced Credits) Saturday • May 30 • Marion Town House, Marion $ ______ Basic Wetland Delineation: Vegetation (c0355) (MACC Members $90, Non-members $105) (2.0 Advanced Credits) Saturday • June 13 • Marion Town House, Marion $ ______ Soil Science - Field Skills Workshop (c0352) (MACC Members $90, Non-members $105) (2.0 Advanced Credits) Thursday • July 16 • Great Meadows National Wildlife Refuge, Sudbury $ ______ Hydric Soils Workshop - Field Identification, Documentation and Delineation (c0353) (MACC Members $90, Non-members $105) (2.0 Advanced Credits) Thursday • July 30 • Garden in the Woods, Framingham $ ______ TOTAL $ _______ Method of Payment: Check enclosed ❑ Bill my credit Card: VISA ❑ Mastercard ❑ American Express ❑ Discover ❑ Card number: ________________________________ Expiration Date _____________________ 8 MACC Newsletter May/June 2009 (Continued from page 1, Federal Court Requires Permits....) Since January, interested parties have been awaiting the Agency’s decision as to whether it would seek a re- hearing and re-instatement of the rule. On April 8, EPA announced it would not petition for a rehearing. Instead, EPA asked the court to stay the ruling (i.e. no permits would be required during the stay) for two years. This delay is requested to allow EPA time to develop a suitable permitting program, similar to the federal permitting program associated with stormwater run-off and other discharges of a “general” nature, for these applications. EPA supported its request for a stay to “avoid significant disruption” to permitting authorities that would occur if they had to immediately permit thousands of potentially a ffected pesticide applications. Agricultural interests remain opposed to EPA’s position and have independently THE asked the court to reconsider its initial decision (see h t t p : / / w w w. f b . o rg / n e w s r o o m / n r / n r 2 0 0 9 / 0 4 - 1 0 - 09/PetitionForRehearing04-09-09.pdf) Kenneth Whittaker is a partner in the law firm of Adorno & Yoss and an MACC Director. << back >> MACC Newsletter May/June 2009 9 (Continued from page 5, Local Wetlands Bylaws are not Intended....) from one of its own more stringent requirements, but that must be very clear from the language of the bylaw or the protection of the statutory interests. See 310 CMR ordinance. §10.03(1)(a). As the MACC Model Bylaw shows, a local bylaw could specify that the burden is on the As long as a wetlands bylaw or ordinance applicant to show, "by a preponderance of the .......reinforces the concept provides more stringent protection as applied to a that a wetlands bylaw or credible evidence, that the proposed activity will ordinance must be both particular project, the applicant will need local not have unacceptable significant or cumulative reasonable in scope and approval of the project from the commission reasonably applied to a effects within the protected resource areas on the particular proposed project under the bylaw, even if the applicant has the identified interests." The bylaw also may provide or activity in order forlegal obtained approval from DEP. If the project does decision to withstand that the applicant's failure to meet the burden of challenge. not trigger any more stringent provisions, then, as proof is sufficient cause for the commission to Healer shows, DEP will have the final word. deny the permit or place conditions upon it. The bylaw lslip opinion, Appeals Court Docket No. 07-P-1153 or the commission's regulations adopted thereunder may also specify presumptions of adverse effects that apply to (February 23, 2009) particular activities or areas, and may place the burden on 2Golden v. Selectmen of Falmouth, 358 Mass. 519, 526 the applicant to make a showing that overcomes those presumptions. (1970). Under the Home Rule powers granted by Amended Art. 89 of the Massachusetts Constitution, 4. Finally, be very careful of variance or waiver municipalities have the authority to adopt bylaws with provisions! A municipality must take care not to include more stringent requirements than those provided for a variance or waiver provision in its ordinance or bylaw under state law, provided that the requirements do not that could lead to a decision under the bylaw that is less conflict with those imposed by the Act. DeGrace v. stringent than the Act's requirements. Variances from the Conservation Commission of Harwich, 31 Mass. App. Ct. Act's requirements may be granted only by the DEP, and 132 (1991); Lovequist v. Conservation Commission of only on very narrow grounds. See 310 CMR §§10.36, Dennis, 379 Mass. 7 (1979); T.D.J. Dev. Corp v. 10.58. A bylaw or Ordinance can allow for a variance Conservation Commission of Andover, 36 Mass. App. Ct. 124 (1994). 3The Supreme Judicial Court has upheld the denial of a permit under a local bylaw based on the impact upon the recreational value of a resource area. Fafard v. Conservation Commission of Barnstable, 432 Mass.194 (2000). Kate Connolly is an attorney in the Real Estate and Regulatory Department of Murtha Cullina, LLP and an MACC Officer. << back >> 10 MACC Newsletter May/June 2009 MACC Spring Networking Reception A Success By Dave Gorden The Massachusetts Association of Conservation Commissions (MACC) is pleased to announce the success of its April 21st pilot social networking event, held at Lowell Beer Works, in Lowell, Massachusetts. This evening meeting, set in the former textile manufacturing area of Lowell near the historical Northern Canal, was perfect with the sounds of social conversations, intriguing dialogues, and satisfied appetites. Despite the inclement weather outside, the event was attended by nearly 80 conservation and commented “as an environmental professional attempting environmental professionals. to expand my network, this networking reception provided a relaxed, yet professional atmosphere, for The complimentary chicken, ravioli, and salad-themed environmental professionals from all backgrounds to dinner was graciously provided by our sponsor, Colin engage in productive networking. Duncan, with TRC Environmental Corp., Lowell, MA. In addition, through a brief presentation by Mr. Duncan, Dedham Conservation Commissioner David Gorden, attendees had the opportunity to learn more about Linear who was recently appointed to the Board of Directors of Transmission Projects in Massachusetts as they relate to MACC, proposed the MACC Networking pilot project in wetlands and water resources. The event continued well October 2008. The mission of the group would be to into the evening with a raffle, dessert, and continued provide opportunities for Conservation Commissioners, social and professional networking. One participant (MACC Spring Networking Reception.... continued on page 13) MACC Newsletter May/June 2009 11 CONSERVATION AGENT Call for Nominees Town of Middleton MACC Environmental Service Awards The Town of Middleton is seeking a part-time Conservation Agent to work up to 18 hours per week at MACC is now accepting nominations for the prestigious the Conservation Department. Minimum requirements: Annual Environmental Service Awards presented each Bachelor’s degree in environmental science or related spring to individuals who have made outstanding field and a minimum of 1 year of experience in contributions in environmental and conservation advocacy, environmental management, land conservation, or education, research and resource protection in Massachusetts. The awards will be presented at the Annual related field; or any equivalent combination of education Environmental Conference at the College of the Holy and experience. Interested candidates should submit a Cross in Worcester on February 27, 2010. cover letter and resumè to Derek Fullerton, Director of Public Health/Conservation Administrator at 195 North Conservation Commissioners, Commission staff, citizen Main Street, Middleton, MA 01949 on or before May activists, career environmentalists, consultants, politicians, 27th, 2009. A complete job description is available at government officials, foundations, teachers, students, and the Conservation Office at 195 North Main Street, others who have made measurable contributions are likely nominees. Actions with respect to wetlands, open space, Middleton. A copy can be obtained upon request via wildlife, science, pollution, growth control, or other related email, fax, or by visiting the following webpage: activities may qualify. w w w. m i d d l e t o n h e a l t h . o r g / c o n s e r v a t i o n . h t m . O ff i c e contact is 978.777.1869. Rate of pay will be based on Award Categories typically include a “Conservation experience and a work schedule will be discussed with Commissioner of the Year.” This award will be given to a finalist for the position. Position open until filled. present or past Commissioner who has made a real AA/EEO difference to his/her board and community. An outstanding Commission Administrator or other staff person is also usually recognized. Be alert to accomplishments like: building an effective Conservation Commission; increasing efficiency of operations, hearings, and meetings; writing and passing new bylaws; broadening the Commission’s constituency; enforcing the Wetlands Act and bylaws; spearheading important land acquisitions, developing land- management tools; and completing significant local projects. Other categories are flexible, allowing MACC to tailor the awards to deserving recipients. Over the long haul, we want to leave no one out. We publish the awardees in the MACC Newsletter and program for the Conference. We personally invite the awardees and their family or co-workers to attend the conference. Your nominations should include: name, address and daytime telephone number of nominator(s) and nominee(s); background, affiliations and two pages describing relevant achievements of nominee; details on any organization making or sponsoring the nomination; letters of support from at least two persons or organizations, but not more than five. The deadline for your award nominations is October 1, 2 0 0 9. Send them to Awards Committee, MACC, 10 Juniper Road, Belmont, MA 02478, fax to 617.489.3935 or e-mail to email@example.com. Call MACC at 617.489.3930 and ask for Lindsay with any questions. 12 12 MACC May/June 2009 MACC Newsletter Newsletter May/June 2009 (Continued from page 11, MACC Spring Networking Reception....) agents, and administrators; city, state, and federal Congratulations regulatory officials, and other environmental professionals from all professional backgrounds to Graduates!!!! network socially with their colleagues. The objectives of the proposed MACC Networking Group is to organize events for participants to convene and network; to provide a means to educate members through brief seminars which highlight topics that affect Conservation Commissions Statewide; and to share expertise regarding wetlands, natural and biological Fundamentals Graduates resources, and open space that can help shape Local, State and Federal policies, bylaws, and regulations. Monique Allen Franklin Ruth Anderson Lancaster Dave Gorden is Dedham Conservation Commissioner Neil Angus Devens and an MACC Director. William Bauser Wrentham << back >> Thomas Beals Northborough John Brennion Quincy Thomas Christopher Lancaster Dianne Demarais Wrentham Joanne DiNardo Leominster Maureen Fowler Waltham Christopher Garrahan N. Chelmsford William Grafton Hingham Darren Guertin N. Chelmsford Christopher Hayward Watertown Denis Houle, Sr. Granby Environmental Consulting Services For Conservation Commissions Leo Immonen Wrentham Third Party Permit Reviews Wetland Delineation Reviews Barry Kassler Wrentham Construction Compliance Monitoring Louis Napoli N. Andover Erosion Control Plans Stormwater Management System Evaluations George Owens Whately Wetland Restoration & Mitigation Plans Rare Species Habitat Studies Wendy Reed W. Newbury Vernal Pool Assessments Wetland Plant Nursery and Planting Gary Sadler Norton Services Stacy Vilao Rehoboth Wetlands Preservation, Inc. Dennis Walsh Stow Environmental Consulting Services 475 Ipswich Road, Boxford, MA 01921 (978) 352-7903 Ray Willis Franklin 47 Newton Road, Plaistow, NH 03865 (603) 382-3435 FAX : (603) 382-3492 E-MAIL: firstname.lastname@example.org Christopher Yarworth Wrentham Website: www.wetlandwpi.com Advanced Graduates Dennis Houle Cotuit Erin Jacques Sturbridge Stewart Kennedy Lexington Fat Piu Lee Marston Mills Steve Orr Framingham George Shippey Stockbridge Sam Stivers Southborough Stephen Walk Greenfield MACC Newsletter May/June 2009 13 (Continued from page 3, Without Clearly Defined Performance....) performance standards. Further, Westwood’s bylaw expressly adopted the performance standards in the Act until Westwood promulgated its own. Thus, the Court ruled that the Act and DEP’s regulations were the Commission’s only tools for evaluating the project. In other words, to use its own Home Rule bylaw to turn down a project for unacceptable impacts to a Resource Area (including the Buffer Zone), the Commission must have clear performance standards for work in that specifications, presumptions of significance, alteration, or Resource Area. Those standards must appear in the unacceptable impacts, and criteria for rebutting ordinance or bylaw, or in regulations, or both. It is not presumptions, is on firm ground when issuing a decision enough for a local ordinance or bylaw to merely list under its bylaw. things like extra jurisdictional Resource Areas, presumed alteration distances, or mandatory setbacks. A Commission with partial regulations containing a few performance standards should be safe with respect to Tremont Redevelopment instructs municipalities that to decisions for those particular Resource Areas. be more stringent than the Act, an ordinance or bylaw must provide performance standards that can be applied A Commission with merely procedural regulations and “neutrally” by the Commission. Otherwise, local no performance standards is on very thin ice. controls intended to be stricter than the Act, even with language and provisions that appear to be stronger than A Commission with no regulations or performance the Act, will not be a valid basis for disapproval. standards (or which incorporates by reference DEP’s performance standards) might as well have no local This drives home the importance of having regulations. wetlands ordinance or bylaw at all. Previously, the Appeals Court rejected the Andover Conservation Commission’s reliance on an unwritten lDegrace v. Conservation Commission of Harwich, 31 “policy” as a basis for denial in Fieldstone Meadows. Mass. App. Ct. 132 (1991); Hobbs Brook Farm Property Now the same Court has rejected reliance on the bylaw Co. Ltd. Partnership v. Conservation Commission of language alone to support a denial. Lincoln, 65 Mass. App. Ct. 142 (2005); and Fieldstone Meadows Development Corp. v. Conservation Most ordinances and bylaws do not contain clear, Commission of Andover, 62 Mass. App. Ct. 265 (2004). detailed performance standards; they are skeletons to which a Conservation Commission adds flesh and 2The Commission approved the project under the Act, muscles via regulations. and DEP later issued a Superseding Order of Conditions approving the project. A further appeal to DEP is pending. The Tremont Redevelopment case teaches us that a Commission with comprehensive regulations, setting Luke H. Legere, Esq. is an Associate with McGregor forth Resource Area performance standards, design and Associates, PC. << back >> 14 MACC Newsletter May/June 2009 Call for Workshop Topics and Speakers MACC 2010 Annual Environmental Conference February 27 • College of the Holy Cross • Worcester Be an important part of the LARGEST environmental conference in New England by presenting a workshop or proposing a topic that will enhance the knowledge and expertise of our region’s environmental stewards. With almost 1,000 attendees, this daylong event has been held for over 30 years and includes about 30 workshops, 50 exhibits and presentation of MACC’s Annual Environmental Service Awards. We are now accepting workshop topic proposals and presenters for the 2010 conference. To suggest a workshop topic - please submit on one page: suggested title; a description of the proposed content; the subject’s specific relevance to Conservation Commissions; and any suggested speakers. To propose giving a presentation, please submit the following information: • Suggested Title • Summary - describe content, format and specific relevance to Conservation Commissions (one page maximum) • Abstract - provide a description of no more than 50 words to be used in program publicity. • Handouts - include a list of handouts (strongly encouraged) you will provide. • Audio-visual - indicate if you have equipment needs that you are unable to supply • Short bios and resumes (if available) for any proposed speakers, with contact information Submit your information in electronic form addressed to email@example.com. Or send to: MACC, 10 Juniper Road, Belmont, MA 02478, or fax to: 617.489.3935. The deadline is August 30, 2009. We get many workshop proposals so there is no guarantee that yours will be accepted. The most likely are those which propose a panel of two speakers, one a speaker who is experienced and expert in the subject, the other equally knowledgeable but independent of the first, so the audience gets a solid background as well as current developments, from two perspectives. Check One: ❑ Topic Suggestion ❑ Proposal to Present Check appropriate topic category: ❑ Open Space and Resource Conservation ❑ Wetlands Protection Act/Regulations ❑ Science and Technology ❑ Commission Leadership/Administration Workshop Title: _________________________________________________________________________________ Your Name: ___________________________________________ Title: ____________________________________ Organization: ___________________________________________________________________________________ Address: ________________________________ City/town: _____________________ State: ______ Zip: ________ E-mail: _________________________________________ Web site: ________________________________ Phone: _______________________ Cell Phone: __________________________ Fax: _______________________ Are you a member of MACC, or is your Conservation Commission, company or agency? If not, we invite you to apply - visit www.maccweb.org/support_membership.html MACC Newsletter May/June 2009 15 Massachusetts Association of Conservation Commissions Non-profit Organization 10 Juniper Road U.S. POSTAGE PAID Belmont, MA 02478 Belmont, MA 02478 617.489.3930 Permit No. 56583 www.maccweb.org CALENDAR Thank You to Our 2009 Annual Environmental May 29, 2009. Fundamentals for Conservation Conference Sponsors Commissioners Units 1 & 3. Brewster. See page 6 for details and page 8 for registration. May 30, 2009. Fundamentals for Conservation LEAD SPONSOR Commissioners Units 2 & 4. Brewster. See page 6 for details and page 8 for registration. May 30, 2009. Basic Wetland Delineation: Soils. Marion. See page 6 for details and page 8 for registration. SPONSOR June 3 & 10, 2009. Identifying Freshwater Wetlands McGregor and Associates, P.C. in the Landscape. UMass Amherst. For details & registration visit www.umassgreeninfo.org/ June 13, 2009. Basic Wetland Delineation: CONTRIBUTORS Vegetation. Marion. See page 6 for details and page 8 Beals and Thomas, Inc. for registration. Horsley Witten Group July 16, 2009. Soil Science - Field Skills Workshop. LEC Environmental Consultants, Inc. Sudbury. See page 7 for details and page 8 for New England Environmental, Inc. registration. Norfolk Ram Tetra Tech July 30, 2009. Hydric Soils Workshop - Field Identification, Documentation and Delineation. Tighe & Bond, Inc. Framingham. See page 7 for details and page 8 for registration. DONORS MACC is a Member of Earth Share of Environmental Law Network New England and the Massachusetts Rinker Materials - Stormceptor Environmental Collaborative.
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