Dear Blueflags,

Can I fill a wetland area and make it up somewhere else?

Thanks,

20  Feet More

Dear Dirty Jobs,

As the saying goes, “If I had a dime…”

What type of wetland is this wetland? What size? And does it have Critters (Natural Heritage mapping)?

Bordering 

Is it bordering a river (including creeks, streams intermittent streams, ditches or anything that carries water water in a defined gradient) pond, lake, ocean? 

If yes, then chances are you won’t be able to fill as much as you’d like.   If the Commission deems that a wetland may be filled, permitting with occur with State and Local authorities. A separate permit must be obtained from the Army Corp of Engineers for placing fill with a waterway or wetland bordering a navigable waterway.

There is also a provision within the Regulations for filling in a finger-like projection of a larger wetland- up to a certain square footage. Yes, it really is described as finger-like.

Isolated 

Is the wetland isolated? How isolated? What is the size? Is it a vernal pool?

A regulatory mess exists with wetlands that are isolated. Isolated wetlands may be considered Isolated Land Subject to Flooding under the Wetlands Protection Act if the engineering calculations determine that it holds a certain amount of water. 

If the wetland is not Isolated Land Subject to Flooding, but is somewhat near a bordering vegetated wetland or watercourse, chances are that Army Corp of Engineers will invoke the “Significant Nexus” language of the Supreme Court Decision of SWANCC vs Cook County to obtain jurisdiction.

If it is totally isolated, not a vernal pool, does not hold and cannot hold the requisite water, is smaller than 5,000 square feet, is not being filled to create’ assist land for subdivision, is not within and area mapped and Natural Heritage, does not fall under a Bylaw definition (watch for those! They were made for these situations), proceed at your discretion. Suggested is getting a professional from the start to advise.  The wetland is a wetland, but probably not jurisdictional. It just isn’t. This is a very tough pill for many state and local regulators to swallow. All wetlands are not regulated wetlands.

Still, be careful. It is entirely possible that the State or Local Commission will halt the project or call you to account at a later date.  It won’t be any easier or less expensive to explain then.

The most common approach taken by representitives is to call all wetlands Bordering Vegetated Wetlands and be done with it.  A few use this regulatory gap, but clients generally aren’t willing to pay for the fight and time incurred. Not too many filling projects are permitted without appeal on this track.  The State and Commission donot like being poked in the eye while being asked for permission.

In short, there are options. Get an experienced professional to advise or, if you go it alone, hire a better professional when you get the “Come Talk to Us”  letter from the State.

BF

Dear Blueflags,

How do I fill in a wetland?  

Thanks.

Dear Pelted:

 Your situation is a very familiar situation that is unlikely to change anytime soon. Under the Mass. State regs (310 CMR 10.00) it is quite clear when something is  ”presumed habitat”.  Examine regulatory section associated with the resource area in question and it will state if wildlife habitat is presumed to be a value. 

It is that word, “significant”, that makes things more difficult in your case.

What is significant?

 The feature should be a unique feature or set of features that a particular species would need as Habitat.  Significant would be an impact to a population. National and State populations that might be affected would be probably be Listed species. Local populations may qualify as well.  Since most of the species in the local catagory are generalist species such as chipmunk,  a fair bit of work would be required to negatively impact a species population.

As for what may be refutable, use existing peer reviewed science.  Know the site and the species.  Don’t do this on your own. Get a specialist to prepare a report of findings.

As for when such arguments are accepted as rebutted, it is when the Commission decides they are convinced.  Don’t anticipate a quick turnaround.

Most of the claims that appear ridiculous are because

1.) The project is controversial and people are grasping for something that will shut down the proposal. 

2. ) A genuine concern for wildlife is extended to the individual of the species and not the population.  Most Commissioners get on the Commission because they care about the environment.  The Commission is charged through Act and Regs with protecting Habitat.  Commissioners take this charge very seriously. Chances are, in this catagory, the Commissioners believe the tree counts as Habitat (under Act and Reg) and must be protected.  Some Commissions will openly discuss the regs and their charge. If you are working with one of these Commissions,  talk with (not at) them.  You’d be surprised at the outcome.

- BF 

Dear Blueflags:

Oftentimes I have been slammed by phrases more or less like the following:

…presumed to be significant habitat.. but may be rebuttable… overcome by the project proponent…

It seems to me as if most conservation commissions have a tremendous amount of discretionary authority (and I am not saying that they should not), but sometimes it seems as though… what? there’s a tree. a bird could use that as habitat. well it must be significant.

How does one go about rebutting the sometimes ridiculous claims regarding habitat value?

Any thoughts?

Thank you.

Habitat: One of the most ill defined and perhaps frequently used words in the environmental field. Frequently it is called Wildlife Habitat and generally is spoken as a gasp soon as the development plan is unrolled before a group of people.

What does Habitat mean? Something not human lives in or uses that particular spot. Pretty general, no? Since everything is good for some organism, where is the intended protections line?

Enter the charismatic megafauna. Bear, deer, pileated woodpecker, turkeys, beaver and salamander. Before you point out that salamanders are not charismatic, take a look at the mole salamander group.  The cherubic paedamorphic symmetry of the face says, “snuggle me”.  Though not an official method, check your child’s stuffed animal box and plan to protect the critters you find.

Species of concern are automatically protected.  These include, without regulatory difference: Endangered, Threatened and Special Concern.  They are commonly referred to as “Listed” species.  Fortunately, the critters picked are based on population dynamics and scientific study standards- not according to chances of being on a calender. 

If a Listed species is on the property, special considerations have to be made. It does not matter if there are wetlands or not. These critters are upland, wetland and in between. Check with the current Natural Heritage and Endangered Species (NHESP) Mapping because bad things will happen if you place a housing development on one of the few Karner Blue butterfly sites. Oh, and before you get frustrated, the the NHESP mapping will tell you if you have a species on the site, but it won’t tell you the species. You’ll have to fill out a form and send money to NHESP to get that info.  Seriously though, if you’re in a mapped polygon and you’re going forward with your project, pay the fee and get the species.  

Working with habitat can also be determined by the scope of the project.  Placing a deck or addition on the back of the house rarely incurs the request to provide a habitat corridor, increased no disturbance areas, off site habitat bond money or  managing for a particular species.  Commercial construction,  if proposed within a wooded or non-urban environment, frequently incurs these requests.  Be prepared to give as much as you can and be told it isn’t enough.

In terms of Massachusetts regulatory, the definition is more clear (though not crystal). The habitat must have specific features that support functions of overwintering, shelter, food, migration or breeding.  So trees may or may not be habitat. If the trees are densely clustered pine tree saplings, chances are it is not going to be considered habitat.  If the trees are 25 inch diameter hardwoods with an open understory with observed nest holes, chances are the area will be called habitat- though it may be for an unlisted species such as the pileated woodpecker or great horned owl. 

A new pseudo-regulatory document, commonly known as Guidance, has been issued from DEP.  In it is outlined when and where the State expects to see a habitat analysis conducted. The triggers are based on the type of resource, the alteration proposed (in square feet) and whether in is in the resource area or within 100/200 feet of the resource. The Guidance is composed of Appendix A and Appendix B. Appendix A is the short one- for sites where there isn’t much potential impact, but it needs to be shown that habitat was considered.  Appendix B is superficially a bit more intense (still in a checklist format), but much more intense in terms of the potential for discussion items.  Even if you don’t find an osprey nest or an otter slide or bank swallow nests, various boards and agencies will want more information.  Be prepared for the request for your scientist to go back out and to prepare another report.

If the project and agencies can agree during the process what species will receive the additional design protections, life is easier. The habitat analysis can be conducted to understand the chosen species, the design can be catered to supporting the functions of those species and future site management knows what is being managed.  Plus, everyone is focused on the same goal.

 And that’s what it is all about, isn’t it? To have everything be happy in the forest.

Green is the color of rest and relaxation. Unless you are building.  Then some green is certainly better than other green. 

Different types of plants like different environments.  Like people, they can live in less desirable environments, but the best specimines are found within the environment best suited to their needs.

No suprise, wetland plants like tobe aound water.

After the last posting, it might be thought, “wait, there are all types of water events from ponding to  subsurface groundwater”. How does that work for plants? Can they tell the difference?

Yes. And they are picky.

Picture the wetland as a slope with a permanent pond at the bottom and full fledged buildable uplands at the top. 

At the very bottom:

Permanent standing water: Plants such as pond lillies like constant standing water. The leave help float the flower and the stems grow up through the water. The plant does not drown.

One notch upslope:  Within a wetland that may not have standing water all year long, but does have q longer period of ponding, plants such as sphagnum (the extra fluffy bright green mossy plant) will thrive.  Look for skunk cabbage nearby

One notch more upslope: Plants such as royal fern may be found. These plants don’t like standing water all the time, but won’t be around without at having their feet wet at  least some portion of the year.

One notch more upslope: The ferns will still be found, but changed to Cinnamon fern. This plant prefers to be sort of wet and can take a bit of standing water- if it must. The plant is  frequently found in groups or clumps.

One more notch upslope: Snack time. This is where the highbush blueberries dwell.  This is where the territory of what is obviously wet and what is not becomes blurred to the casual observer. Few think blueberries and think swamp. Red maple might also be found here along with white oak.

One more notch upslope: Now things are starting to get more dry. White oak becomes red oak and the healthy Eastern white pines may be observed. Yes, Eastern white pine may be found in a wetland, but either the wetland is drying or the tree is drowning.

One more notch upslope: Is that a beech? Yee-ha, we’re in dry country.  Eastern white pines blow in the breeze, massive red oaks house red squirrels and the beech provides those spear-like buds that critters love.  The water is low, the trees are tall and the soils are sandy. What could be better?

There are, of course, tens of other plants that will happily occupy the “notches” on the slope. Plants, as I said, are picky. Some prefer more acidic soils, some prefer more alkaline. Some prefer sun, some prefer shade. The ones provided are commonly found in Massachusetts and are provided for illustration only.

 

It was once a given that I would be asked how land without standing water could be considered a wetland.  Inevitably, the client would state,” But my shoes aren’t getting wet…”  The days of the wet loafer wetland delineation are long gone.

Water, frequently called hydrology, is the second parameter of wetland determination.  Water comes to the wetland by any number of sources- streams, overland sheet flow, groundwater, seeps, storm flooding, broken utility pipes and old farmland irrigation tiles.  The water is held in place by various restrictions- clay layers, paddock compacted hard-pan, pavement, ledge and elevated bedrock and construction compaction (soil storage sites). 

Standing water does not need to be present all year to qualify as a wetland. Actually, it needs to be present little more than 10 days per year and it only needs to be near the surface during that time.  Fear not, water tells a story of the travels.

Hydrology, when not directly observed as wet soil or standing water in the sample hole, is frequently observed through other signs. These signs may be elevated tree roots (it looks like the tree is attempting to stand up out of the ground or triangle roots), dark water stains around the base of the trees,  dead grasses hanging from plants (it looks like a seaweed line, but in the woods) and scour marks or drainage  patterns.

So who defined how much water makes a wetland and how did they agree? Here is where it gets fun. Army Corp of Engineers defines the hydrology at the federal level. This is generally adopted and incorporated into State regulation. In Massachusetts, each Municipality (under their own regulations/Bylaw) can incorporate, change and create a definition of wetland hydrology.  Fortunately, most towns are in agreement and utilize the State definition. The Towns that do change the definition, generally do so radically. Believe me, you won’t look at a pavement puddle the same way again. 

As always there is an exception.

Vernal or ephemeral pools are another matter entirely.  These pools are supposed to dry up. Most do, some don’t.  Some hold water in the Spring. Some hold water in the Fall.  They don’t have fish, except under a few municipal bylaws that specify the pools  don’t have  PREDATORY fish.  These pools have a special place within the State regs and can greatly affect site design.  A State agency determines whether they are certified pools and this dictates State regulatory application. Municipalities frequently include that a pool does not need to be certified to be regulated locally.  This will be covered in more detail under wildlife.

At first glance, site hydrology factors can be stressful. It would seem that every time is rains, the land could be called wetland (tick, tick -the 10 day rule) and that any upland dry spot could be a vernal pool.  Before you start stocking sump pumps in the construction trailer,  know that water isn’t the be all and end all. It is one of the parameters.  

Vegetation also tells a tale.

Bystanders wonder about the fuss over soil colors. How I can look at small piles of dirt and say, ” You’re good to go” or ” You’re screwed. Back out of the deal now.”

The auger goes into the ground like a handchurned icefishing drill and pulls up blocks of colors in eight in sections. Like tea leaves, the soil blocks tell a story of the past and future. Sometimes the soils indicates a future of easy construction plans. Sometimes the soil indicates a construction future of regulatory hurdles.  Sometimes the soil flat out says “Maybe, maybe not.”

The colors, feel, layout of the layers and composition of the soil inform whether the soil is an upland soil, a wetland soil, a human altered soil (the state was 80% farmland not that long ago) or somewhere in between. The additions of soil chemistry features such as the rust spots called redoxomorphic features tell how much water is within the soil for how long. The removal of color, commonly called white dirt, causes three characteristic soil types. The soil might be impoverished, reduced or flat out gleyed (tech speak for a certain type of wetland soil).  White dirt might also be an E layer (something more common along the glaciated Atlantic coast involving major dust settling and nothing to do with wetland soil). 

If you see someone smell the dirt, don’t jump to the conclusion that you just hired a tree hugging hippie to complete the environmental due diligence. Soil smells. Especially the soil that doesn’t get to breathe a lot because it is stuck underwater. It smells even after the water is gone. It smells like rotten eggs. Yup. A straight shot of sulfur in the sniffer.  The sulfuric smell is a warning sign to look around to see what happened to the swamp before it floods a partially built building and before the regulators send a “stop work, come talk with us” letter. Trust me, it makes for a bad morning.

If only it was only soils that could forecast future troubles. Unfortunately, there are other indicators that need to be measured before siting a project on a property that might have wetlands.