Federal Court Requires Permits for Pesticide Applications to Wetlands by sjw10519


									 May/June 2009           The Newsletter of the Massachusetts Association of Conservation Commissions            Volume XXXIX       Number 3

 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.

                                                     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
                                                       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.
                 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
               Helen D. Bethell      Manchester           receive the newsletter ONLY electronically in your e-mail box,
               Margaret Carroll      Upton                please email lindsay.martucci@maccweb.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
                                                        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.

    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
   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
                         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)                                $ ______
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 -

  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
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

                                                                        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
                                                                                                   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

                                                                                                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

                                                                                                 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 lindsay.martucci@maccweb.org. Call MACC at
                                                                                              617.489.3930 and ask for Lindsay with any questions.

 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
                                                                             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: info@wetlandwpi.com
                                                                             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 lindsay.martucci@maccweb.org. 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

                      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.
  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

         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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