Wetlands, Swamps and Buffer Zones: A Primer on Massachusetts Wetlands Protection Law

Interdunal Freshwater Wetland - Sandy Neck, Barnstable, MA_resizeOverview of Wetlands Regulations

Massachusetts has one of the most restrictive wetlands and environmental codes in the U.S. Simply put you cannot do anything – not clear, cut, fill, dump (not even leaves, grass clippings or dirt), alter, grade, landscape or build upon — any wetland resource area without a permit from your local town Conservation Commission.

The state Wetlands Protection Act and Rivers Protection Act impose stringent restrictions and oversight of real estate development in and near coastal wetlands areas, such as salt marshes, dunes, beaches, and banks, and inland wetlands areas, such as swamps, marshes, rivers, streams, ponds, and lakes. Many homeowners are often surprised to learn their property contains or is near protected wetlands or is within a restricted buffer zone which will impact their ability to construct an addition, deck, pool, driveway, or cut trees.

Check With the Local Conservation Agent First

A buyer and their Realtor should always research whether there are wetlands on or near the property. First, walk the property — the whole thing. I’m shocked at the number of times agents don’t do this. Next, check the state Geographic Information (Mass GIS) maps online which shows most wetland areas. Next, call over to the local Conservation Agent and pull out the local wetlands maps. The conservation agent should be able to answer most questions and will know whether there are conservation restrictions on the property.

Wetlands Areas & Buffer Zones

The state Wetlands Protection Act and local Wetlands Bylaws include a number of different types of wetlands, and wetland-related areas called “Resource Areas.” These include rivers and streams (“perennial” if they run year round, and “intermittent” if they dry up seasonally); lakes and ponds; the vegetated wet areas bordering rivers, streams, lakes or ponds (“bordering vegetated wetlands”); the 100-year floodplain along rivers and streams; and isolated areas that flood seasonally, such as vernal pools. The determination of wetlands is a science and very complicated.

The first 200 feet from the edge of a perennial stream are regulated as “riverfront area.” The first 100 feet from a vegetated wetland or stream bank are regulated as “buffer zone.” Some towns have even more stringent by-laws and buffer zones, so always check with your town’s conservation commission.

Any work performed within these resource areas and the 200 or 100 foot buffer zones are strictly regulated, and a permit (called an Order of Conditions) must be obtained by the local Conservation Commission before any work starts. The Conservation Commission may decide not to allow the project. Or it may allow it, with a myriad of conditions to protect the wetlands, including hay bales, silt fencing, wetlands replication areas, and other performance standards. Furthermore, disgruntled abutters may appeal the issuance of a conservation permit, so it’s a very good idea to get your neighbors on board before you appear before the conservation commission. It’s also a good idea to hire an experienced Massachusetts wetlands attorney to guide you through the process.

Aquifer Protection

Lastly, many Massachusetts towns rely on municipal wells as their public water supply. In response to threats and actual contamination of drinking water wells, towns have enacted aquifer protection districts. These areas are usually depicted as “overlays” on more customary zoning districts. The use of septic systems, underground fuel oil storage tanks, and other potential contaminants is often closely regulated in aquifer protection districts. Because of the costs of remediating contaminated public wells and locating alternative sources of potable water, state and local governments are taking other measures, such as restricting the size and use of septic systems to protect underground water resources.